Legal Hotline: Sunshine Act Penalties

Legal Hotline: Sunshine Act Penalties

Q: I believe the Sunshine Act may have been violated. Are there penalties for violations and if so, how do I pursue them?

A: The Sunshine Act allows for the imposition of civil and criminal penalties if a judge determines a violation occurred.

It must be noted at the outset that Sunshine Act litigation is rare, as is the imposition of the criminal and civil penalties, but both are expressly permitted under the law. Because Sunshine Act litigation and penalties are so rare, news organizations often address alleged violations informally with the agency and as part of news coverage as a first step. If compliance remains an issue, the legal remedies enshrined in the law are available.

The Sunshine Act is a citizen-enforced law, and although the Office of Open Records provides training and resources on the act, there is no statewide administrative agency that oversees compliance. If an individual believes the law has been violated, it is incumbent upon the individual to pursue the issue in a court of law. The Sunshine Act provides for criminal sanctions against individual public officials, and it also provides for civil sanctions against government agencies. Legal actions must be brought within 30 days from the date an alleged violation is discovered, but no case may be brought more than one  year after the date of an alleged violation. For example, if you discover today that an alleged violation occurred six months ago, you have 30 days from today to file legal action. If, however, you discover today that an alleged violation occurred two years ago, the statute does not permit a legal challenge because more than one year has elapsed from the date of the alleged violation.

From a criminal perspective, it is a summary offense to intentionally violate the Sunshine Act, punishable by fines and the imposition of court costs. Criminal sanctions may be pursued against public officials who are subject to the law. To pursue the criminal penalties under the law, an individual can file a private criminal complaint explaining the alleged violation. Private criminal complaints are filed with the county district attorney, who decides whether criminal prosecution is appropriate. If the district attorney does not approve the criminal complaint, the individual can petition the Court of Common Pleas to review the district attorney’s decision. If criminal charges are brought, jurisdiction lies with the magisterial district court, which will hear the case and decide whether a criminal violation occurred. If the court determines that a violation occurred, the minimum fine is $100 and the maximum fine is $1,000 for a first offense, plus court costs. For second and subsequent offenses, the fine may be up to $2,000. The court may also require the defendant to pay the costs of prosecution.

The Sunshine Act also allows individuals to file a civil action against the government agency rather than individual public officials when there has been an alleged violation. Jurisdiction in the civil context lies with the Court of Common Pleas in the judicial district where local agencies like school boards and borough councils sit, and for state-level agencies such as the Workers’ Compensation Appeal Board or Turnpike Commission, jurisdiction lies with the Commonwealth Court. To pursue the civil remedies of the law, an individual must file a civil lawsuit in the proper court, ideally with the assistance of an experienced attorney. The court may enjoin official action during the pendency of the litigation and if the court finds a violation occurred, official action may be invalidated. Additionally, if the court finds the agency violated the law willfully or with wanton disregard, the court shall require the agency pay attorney fees and costs of litigation or an appropriate portion thereof.  Conversely, if a court finds a legal challenge was frivolous or was brought with no substantial justification, the court shall require the individual to pay attorney fees and costs of litigation or an appropriate portion thereof.

As always, this is not intended to be, nor should it be construed as, legal advice. News media organizations interested in pursuing the legal remedies of the Sunshine Act should contact an experienced public access law attorney or the PNA Legal Hotline at (717) 703-3080 for a referral.