This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
On July 27, 2020, Act 77 of 2020 (“Act 77”) became law without Governor Wolf’s signature, and is codified as 71 P.S. §§ 720.301, et seq.
In a July 28, 2020 press release, Governor Wolf characterized Act 77 as clarifying “that various data and models related to a disaster declaration are public records” for purposes of the RTKL. A closer look at the Act indicates that something different is going on–namely, that the Act creates an exception to the Disease Prevention and Control Law (“DPCL”) which protects “records of diseases” from production except when authorized by public health officials. Act 77 can be read as defining “records of diseases” and planning models based upon that as producible, but only if they relate to a “disaster declaration” such as the March 6, 2020 declaration made with regard to the COVID-19 pandemic.
For anyone interested in filing RKTL requests for information about the impact of COVID-19 and the decision making process involved in the March 6 declaration and related orders, Act 77 is essential reading. We summarize the provisions of the Act below.
Section 301 of the Act contains definitions of terms that are fundamental to Act 77. Some of these definitions are not identical to those in the RTKL. In particular, the definitions of “Commonwealth Agency,” “Disaster declaration” and “record” are key to understanding the Act.
In the RTKL, “Commonwealth agency” applies to any Pennsylvania state agency, including municipalities. For purposes of Act 77, a Commonwealth agency is limited to an “agency or commission of the executive branch under the policy, direction, or supervision of the Governor.” A “disaster declaration” is a declaration of disaster emergency made by the Governor pursuant to the Emergency Management Services Code, particularly 35 Pa. CS. § 7301(c).
Finally, “record” is defined a bit differently than in the RKTL.
The RTKL defines “record” as “information, regardless of physical form or characteristics, that that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.”
In Act 77, this language is retained, but is specifically limited to a “transaction or activity of a Commonwealth agency” as defined under the Act.
Section 302 prohibits the Governor, or Commonwealth agencies, from ignoring RTKL requests for records during a disaster emergency, or from suspending the way a Commonwealth agency normally responds to RTKL requests.
Section 303 of the Act requires each Commonwealth agency to publish guidelines for how it will respond to requests made during a disaster declaration within 5 days of the effective date of the Act, and Section 304 authorizes requester to file a petition with Commonwealth Court to compel a request for records in accordance with RTKL. Such a request may be denied only for reasons authorized by the RTKL.
Section 305 of Act 77 provides three categories of records are considered “public records” for purposes of Act 77, to the extent they are not exempt by Section 708 of the RTKL:
“(1) Data used by a Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.
(2) The process by which a Commonwealth agency determines how the Commonwealth agency will collect the data used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.
(3) Any quantitative or predictive models based on the data collected by a Commonwealth agency which are then used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.”
71 P.S. § 720.305 (emphasis supplied).
This language is clearly designed to permit requester to obtain information from Commonwealth agencies to enable requester to ascertain, and potentially challenge, the manner in which the disaster declaration was enacted and the manner in which the disaster is handled. Such requests had commonly been denied with regard to the COVID-19 pandemic before the passage of Act 77 because what they asked for included “reports of disease” and thus fell within the purview of the DPCL. Unfortunately, it is difficult to assess the effectiveness of a Commonwealth agencies handling of a pandemic without “reports of disease.”
Finally, Section 306 provides that Act 77 applies for the duration of the disaster declaration, as renewed, until the declaration “expires or is terminated by executive order, proclamation, or operation of law.” It also contains a provision that, with regard to the March 6, 2020 declaration regarding the COVID-19 pandemic, requests for records by Commonwealth agencies as defined by Act 77 “shall be treated as if the request for the record had been received by the agency on the effective date [July 27, 2020] of this section.” This language appears to have been intended to start the clock running again for requests pending as of July 27, 2020.
Bottom Line: Act 77 is clearly intended to facilitate requests for information relevant to the Governor’s and DOH’s handling of the COVID-19 pandemic by redefining certain categories of “reports of disease” as producible under RTKL. Whether Act 77 is achieving its purpose will become apparent as appeals from COVID-19 related requests move through the system.