Best Practices for Right-to-Know-Law Requests during the COVID-19 Pandemic*

April 8, 2020

*Co-Authored by Alexis Wheeler, Ena Lebel, and Gretchen Moore

During this challenging time, public agencies and municipalities are still required to abide by the Right-to-Know Law (RTKL), and to the extent possible, respond to requests for public records.  However, the health and safety of the community, the board, and employees takes precedence under the Governor’s Emergency Declaration.  Additionally, due process for the parties is extremely important, so if the agency is not able to respond to a request in a fulsome manner, it is better to delay a response than give a less than adequate response.

Here are some best practices for adhering to RTKL and responding to requests for public records right now:

Notifications

  • Make sure you notify the public of the agency’s plan with regard to RTKL requests during this time period.
  • One way to notify requesters is to set up an auto-reply from the email address designated to receive RTKL requests.
  • Another way is to post a notice on the agency’s website explaining that the agency’s RTKL office is closed and any RTKL requests will be received when the agency reopens.

Deadlines

  • Process requests as timely as possible, but understand that an Emergency Declaration gives agencies some flexibility around deadlines.
  • Do not count days that the agency is closed as a “business day” for the purposes of the five business days referenced in Section 901 of the RTKL, which governs the time period under which an agency must respond to a request. Therefore, if a municipal building is closed to the public (including a school district), then it is NOT open for business and thus not a “business day.”
  • If the COVID-19 emergency inhibits the agency from timely responding to a RTKL request, the agency has the discretion to make a unilateral extension of the deadline as long as the agency notifies the requester of the extension.

Urgent Requests Only

  • Requesters should only submit urgent requests and agencies should only process urgent requests.
  • Parties should use good judgement to determine what is actually “urgent.”
  • Requestors should only seek electronic copies of records during this time.

Appeals

  • The Office of Open Records (OOR) is open and processing some, but not all appeals.
  • The OOR is invoking an indefinite extension on all appeals filed.
  • Any appeal filed electronically will be docketed as usual, and appeals filed via postal mail may have a delay in docketing and will not be prejudiced as to timeliness.

These matters are complicated, and the situation will continue to evolve.  If you have any questions, we suggest that you first consult your Solicitor.

Moreover, our public sector attorneys at SMGG are always available to serve as a resource, particularly at this time.  Feel free to contact Gretchen Moore at gmoore@smgglaw.com, Kathy Clark at kclark@smgglaw.com, Alexis Wheeler at awheeler@smgglaw.com, or Alan Shuckrow at ashuckrow@smgglaw.com.