From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: Our newspaper would like to pursue legal action against a local agency for Sunshine Act violations. Are there civil or criminal penalties for violating the act?

A: Both criminal and civil penalties are available under the Sunshine Act, but neither are frequently imposed by the courts.

It is a summary offense to intentionally violate the Sunshine Act, punishable by up to a $100 fine plus court costs. In order to pursue criminal charges, a newspaper may file a private criminal complaint alleging a violation of the Sunshine Act. The procedure for filing a private criminal complaint differs throughout the state but in most counties, the District Attorney and the Magisterial District Judges have complaint forms available to the public.

In many counties, the District Attorney’s Office will review the complaint and decide whether criminal charges are warranted. You do not need an attorney to file a private criminal complaint, but it is always advisable to keep your newspaper’s attorney informed.

The Sunshine Act also permits civil remedies. These are more common, but still relatively rare. If a violation is shown, a court may invalidate any official action taken in violation of the Sunshine Act. It may also grant an injunction or fashion other appropriate relief to prevent future violations. In order to pursue civil remedies, a newspaper must file a civil lawsuit in the Court of Common Pleas in the applicable county.

Newspapers should be aware that the courts have allowed agencies to “cure” certain violations. Under the Sunshine Act, courts have found that agencies can do this by advertising and holding an open meeting, allowing public comment prior to re-voting, and then ratifying a prior action. It is not clear that “curing” works in all situations, but there are a number of cases in which the courts have allowed it.

In addition to criminal and civil remedies, section 710.1 of the Act allows the public to object formally to a perceived violation of the Sunshine Act at any time during a public meeting. Any such objection should be noted in the agency’s minutes. Please see PNA’s template for making a formal objection during a public meeting.

Finally, the law requires that legal action alleging a violation of the Sunshine Act must be filed within 30 days of a violation that occurred at an open meeting and 30 days from discovery of a violation that occurred at a closed meeting. In no event may an action be brought more than one year from the date of the alleged violation (regardless of whether the meeting was closed).