Should emails see Sunshine?
Margaret "Mieke" Driscoll
Pennsylvania’s Sunshine Act (the “Act”) requires that all meetings of public agencies, except those allowed to be held in executive session, must be public. A meeting, under the Act, is defined as: “Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” Deliberation, in turn, is defined as “the discussion of agency business held for the purpose of making a decision.”
It is clear under statutory and case law that deliberation of a quorum, for purposes of making an agency decision, must occur in a public meeting. What constitutes deliberation, however, so as to require a public meeting presents a gray area of law. The issue is further complicated in the modern context of electronic means of communication via email, internet chat rooms, texting and cyber meetings. We have technological capabilities to communicate instantly with one another without physically being in the same space. These advances may redefine what constitutes a “gathering” under the Sunshine Act, but for the moment, neither the Act nor case law directly addresses these modern nuances.
The Sunshine Act itself, unlike its counter-part, the recently amended Right to Know Law, has not been amended in many years. Its drafters did not contemplate the modern communication tools that we now have at our disposal and so the language of the Sunshine Act does not account for the use of email and other modern media by public agencies. This further complicates the already murky landscape of what constitutes a gathering and deliberation of agency business.
In the absence of clear direction in the law itself, there is disagreement as to whether email correspondence between a quorum is indeed a “gathering” so as to constitute a meeting and therefore require a public forum if deliberation or official action takes place. Technically, the Sunshine Act does not recognize the exchange of emails as a "meeting," since it isn't a gathering of an agency, but an exchange of correspondence. However, it is possible that courts would look to intent when analyzing a case presented to them. If the intent of the agency is to circumvent the Sunshine Act to deliberate and exchange opinions on an issue outside of the public meeting setting, then a court may find a violation of the Act has occurred. All such analysis is speculative until the Courts near such a matter.
It is also important to note that email communications that may fall between the cracks of the Sunshine Act may be public records under the recently revised Right to Know Law, which encompasses electronic communications. Under the RTKL, “record” is defined as “information, regardless of physical form or characteristic, that documents a transaction or activity of an agency and that is created, received, or retained pursuant to law or in connection with a business transaction or activity of the agency.” 65 P.S. §67.102. The definition includes emails. We recommend that every municipal body work with its solicitor to develop a policy for electronic communications between the board, council or commission members. Such a policy should be developed with both the Sunshine Act and the Right to Know Law in mind. Once adopted, this policy should be clearly communicated to all agency members and must be consistently followed.