OPINION
This Sunshinе Act dispute concerns whether meetings between an agency and outside entities, including those involved in ongoing litigation with that agency, entailed “deliberations” — and thus, should have been open to the public — where the subject of the meetings was the same as that of the litigation, although the agency claims the meetings were held for information-gathering purposes only.
Appellee Richmond Township was engaged in litigation with the Lehigh Cement Company (“Lehigh Cement”), and the East Penn Valley Residents Group (the “Citizens Group”) as intervenor, over the possible expansion of Lehigh Cement’s limestone quarry into the Township. See generally Lehigh Cement Co. v. Richmond Twp. Zoning Hearing Bd.,
At the Board’s April 5, 2010, public meeting, the solicitor stated that the previously-announced “executive sessions” had occurred as scheduled. He explained that the supervisors did not deliberate on, conduct, or make any decisions on, Township business at any of the four gatherings, and he indicated that their sole purpose was for the Supervisors to ask questions of the invited persons so as to obtain information regarding the impact of a quarry in the
On May 10, 2010, Lehigh Cement submitted a proposed settlement agreement— which was solely the work product of Le-high Cement — to the Township solicitor 45 minutes before the start of the Board’s regularly-scheduled monthly public meeting. At the meeting, the solicitor read the proposed agreement into the recоrd. A spirited public debate ensued. In the early morning hours of May 11, 2010, at the conclusion of the public debate, Supervisor Kurtz moved to accept the settlement agreement, and his motion was seconded by Supervisor Brumbach. The third Board member, Supervisor Angstadt, voted against the motion. The motion carried by a 2-1 vote.
Meanwhile, on March 22, 2010, Appellant James M. Smith, a resident of the Township acting pro se, filed a complaint in county court, naming as defendants the Township and its Supervisors (collectively, the “Township Parties”), and challenging the validity of the four gatherings. Appellant alleged that, on each such occasion, a quorum of the Board discussed and deliberated Township business, and that they were closed to the public in violation of Section 704 of the Act, which requires that “[official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public....” 65 Pa.C.S. § 704.
Ensuing depositions established that the gatherings involving the neighboring townships were convened to learn how quarry operations affected those municipalities— e.g., by generating traffic, dust, and noise — and to determine whether means exist to mitigate such impacts. The gathering with the Citizens Group was held so that the Supervisors could understand its environmental concerns involving issues such as water quality, blasting, and toxins being released into the environment. The group’s spokesman testified that he understood the gathering to be a fact-finding mission, and that no vote was taken by the Supervisors. Depositions of individuals at the gathering with Lehigh Cement reflected that it was also fact-finding in nature. The Supervisors asked questions that arose from information learned in the prior three gatherings. Some of the issues raised by those questions were ultimately addressed in the settlement agreement drafted by Lehigh Cement.
In his deposition, Appellant stated that he had no knowledge concerning whether the Supervisors voted during any of the
After discovery concluded, the parties filed cross-motions for summary judgment. The common pleas court granted the Township Parties’ motion, denied Appellant’s motion, and enterеd judgment in favor of the Township Parties.
The Commonwealth Court affirmed. See Smith v. Twp. of Richmond,
With this background, the court developed that Appellant argued that the Board did indeed deliberate at the gatherings because it obtained information which, in turn, guided its evaluation and vote on a settlement with Lehigh Cement, and that the purpose of the meetings was to “make a decision.” As to the first contention, however, the court noted that, in prior cases, it had established that fact-finding need not take place in public, see Sovich v. Shaughnessy,
Next, the court distinguished the two primary cases that Appellant relied on to support his position, namely Trib Total Media, Inc. v. Highlands School District,
The law does not rеquire the press and public to be present at every agency meeting. The case law has drawn a line, however, around the meetings of public officials where a specific proposal or petition is discussed. Meetings at which such specific proposals or petitions are discussed may require the presence of the public. Here, there was no proposal available for discussion at any of the four meetings.
Id.
Finally, the court observed that Sunshine Act cases tend to be highly fact-sensitive, and that the plaintiff bears the burden of proving that deliberations took place аt a private meeting. See Kennedy v. Upper Milford Twp. Zoning Hearing Bd.,
We allowed appeal on a limited basis to examine whether the Sunshine Act’s definition of “deliberations” is implicated where, as here, an agency meets with vari
Appellant argues that the record supports his view that the. four gatherings in question were held for the purpose of making a decision on Township business, since the information learned at these sessions assisted the Supervisors in voting on the settlement agreement that Lehigh Cement ultimately submitted, and the Supervisors knew at the time of the discussions that they would be helpful in this manner. See Brief for Appellant at 14-15. In this regard, Appellant proffers that an agency decision nеed not be made at the meeting itself for the meeting to be convened for the purpose of making a decision. Appellant contends that, to the extent the Commonwealth Court suggested (albeit in dicta) that the only way to prove deliberations “may be” by admission of the attendees, Smith,
The Pennsylvania NewsMedia Association, as amicus curiae, adds that because the discussions pertained to ongoing litigation, they should be seen as having entailed deliberation of agency business, as they were held for the purpose of reaching a settlement relative to that litigation. The Association argues that the Commonwealth Court’s holding creates too high a barrier to enforcing the Sunshine Act because it requires an admission of an impropriety by agency members.
The Township Parties respond that the record reflects that they convened the closed gatherings solely as collective fact-finding inquiries to educate themsеlves concerning: the problems that arise from quarry operations; the means that may be available to ameliorate such difficulties; the environmental concerns of the Citizens Group; and Lehigh Cement’s responses to any questions that might arise during these informational background discussions. Referencing Commonwealth Court decisional law, the Township Parties emphasize that information gathering is not the same as deliberating, and that the Sunshine Act is not intended to cover exchanges designed simply to apprise agency members about salient issues. As a matter of policy, they additionally argue that requiring the initial “inquiry” stage of agency decision-making to be conducted in public can be counter-productive to the Act’s purposes, and reference for support judicial expressions from other jurisdictions,
The Pennsylvania School Boards Association, participating as amicus curiae, relates that school boards must sometimes obtain information in a confidential setting to help them reach acceptable decisions on sensitive topics such as bullying or other student-related issues, and that the ability to do this effectively would be impaired if informational gatherings were required to be open to the press and the public. Separately, a group of organizаtions representing the interests of municipal governing boards has filed an amicus brief, expressing that requiring information gathering to be conducted pursuant to the statutory procedures for open meetings is not mandated by the Act, and to interpret it in this way would impose significant administrative costs and burdens on municipalities and local authorities in an era of scarce public funds.
A motion for summary judgment should only be granted if there is no genu
A “meeting” occurs, and thus must be open to the public, if the agency convenes it to deliberate agency business. See 65 Pa.C.S. §§ 703, 704. There is nothing in the Act that expressly precludes private information gathering as a collective effort by members of an agency, including by a quorum. What the Act does proscribe is private “deliberations.” As noted, the Act defines “deliberation” in terms of discussion of agency business — namely, the framing, preparation, or enactment of laws, policies, or regulations, or the creation of liability by contract or otherwise, see supra note 5 — but only where the discussion is “held for the purpose of making a decision.” 65 Pa.C.S. § 703.
The record supports the conclusion that the four closed gatherings were held with the goal of gaining information that could prove useful to the Township in negotiating the terms of a settlement with regard to the underlying litigation. See, e.g., N.T., Oct. 18, 2010, at 92, reproduced in R.R. 80a (reflecting Appellant’s question, “But the purpose of these four meetings was to gather information that would assist you in negotiating the terms of a settlement agreement with Lehigh Cement. Is that correct?,” to which Supervisor Kurtz answered, “If it got to that point, yes.”). There is no disagreement that whether to settle that litigation, and on what terms to settle it, constituted agency business. As reflected in the parties’ arguments, the present dispute focuses on whether the discussions in question constituted “deliberations,” that is, whether they were held “for the purpose of making a decision” on that topic.
Making a decision implies the exercise of judgment to determine which of multiplе options is preferred. See generally Griffin & Dickson v. United States,
Gatherings held solely for the purpose of collecting information or educating agency members about an issue do not fit this description, notwithstanding that the information may later assist the members in taking official action on the issue. To conclude that such information-gathering discussions are held for the purpose of making a decision would amount to a
We observe, moreover, that, while it is possible such closed-door sessions may have a practical benefit as suggested by the sources referenced by the Township Parties, see supra notes 6-7, when an agency holds such gatherings and invites parties to ongoing litigation, skepticism among the general public is not unreasonable, as suspicions may naturally arise that the conversations are aimed at deliberating agency business in private. In suсh cases, the agency incurs the risk that citizens will challenge the propriety of its actions, and consequently, that it will have to defend those actions in the context of legal proceedings where an evidentiary record is developed (as in this case) and a determination is made by a fact-finder concerning whether a violation occurred. However, since the Act does not forbid agencies from proceeding in this manner, it is not our function as a reviewing court to impose a bright-line preclusive rule to that effect. Rather, the question of whether any such discussions were required to be open to the public depends on the facts of each case. Additionally, in view of the “presumption of regularity and legality that obtains in connection with proceedings of local agencies,” Kennedy,
On this record, we agree with the Commonwealth Court that the Supervisors’ four closed-door gatherings did not violate the Act because they were held for informational purposes only and did not involve deliberations. See Smith,
As noted, however, merely learning about the salient issues so as to reach an informed resolution at some later time does not in itself constitute deliberation. Contrary to Appellant’s suggestion, this conclusion does not depend on whether such information forms the sole basis of the agency member’s subsequent vote. Further, although the email referenced by Appellant suggested an intention to inform the Citizens Group of the Board’s position concerning the quarry litigation, this too does not imply that a discussion was held
With that said, there is one portion of the deposition transcripts that gives us pause. John Reiser, a member of the Citizens Group, testified that, at the closed gathering with his organization, two of the Supervisors expressed differing views as to whether it would be in the Township’s interests to settle the quarry litigation. See N.T. Oct. 18, 2010, at 22, reproduced in R.R. 644a. Viewed favorably to Appellant, this testimony can be read to suggest that a brief exchange occurred concerning the benefits of settlement. Nevertheless, according to Mr. Reiser’s description, this exchange apрears to have been de mini-mus within the context of the meeting as a whole, which lasted more than an hour and a quarter and which Mr. Reiser described as being held, overall, for information-gathering purposes. See id. at 19, reproduced in R.R. 641a (“The purpose of the meeting was to gain information about the concerns, the environmental concerns primarily, that our group had been expressing for the last three and a half years in front of the Zoning Board.”). The common pleas court, as well, described the deposition as confirming an educational purpose for the meeting. See Smith v. Twp. of Richmond, No. 10-5588, slip op. at 2-8 (C.P. Berks Nov. 29, 2011). We do not believe that the isolated portion of Mr. Reiser’s testimony referenced by Appellant, and excerpted from an incomplete transcript,
The order of the Commonwealth Court is affirmed.
Chief Justice CASTILLE, Justices EARIN, BAER, TODD, McCAFFERY and STEVENS join the opinion.
Notes
. The parties informally refer to these closed-door gatherings as “meetings.” We will use the term "gathering” to avoid confusion, as "meeting" has a specific, relevant definition under the governing statute. See 65 Pa.C.S. § 703 (defining "meeting” as "[a]ny prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agenсy held for the purpose of deliberating agency business or taking official action”).
. Act of Oct. 15, 1998, P.L. 729, No. 93, § 1 (as amended 65 Pa.C.S. §§ 701-716) (the "Act” or the "Sunshine Act”). The 1998 statute is a codification, as amended, of the prior 1986 Sunshine Act, see Act of July 3, 1986, P.L. 388, No. 84, whose definitions and openness requirements were substantially similar to those of the present enactment. Under the 1974 version of the statute, known as the “Sunshine Law,” see Act of July 19, 1974, P.L. 486, No. 175, only meetings where "formal action” was scheduled or taken needed to be open to the public. See id. § 2; Judge v. Pocius,
. “Agency” is defined to include a township’s governing board. See 65 Pa.C.S. § 703. Section 704's open-meeting mandate is subject to sevеral exceptions. The only potentially relevant exception is for executive sessions because, as noted, that is how the solicitor described the gatherings. For present purposes, that exception has been removed from consideration as discussed below. See infra note 4.
. The court determined that the discussions did not constitute "executive sessions” as the solicitor had claimed, and thus, they were not exempt from Section 704's open-meeting requirement on that basis. See Smith,
. "Agency business,” in turn, is defined as "[t]he framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action.” 65 Pa.C.S. § 703.
. See FCC v. ITT World Commc'ns, Inc.,
[tjhere is an appropriate investigative аnd exploratory stage preceding many actions by governmental bodies and agencies. At this stage, ... there are advantages to the public in permitting preliminary discussions in which there can be greater freedom of expression without fear of benefitting special interests, harming reputation, inviting pressure from special interests, creating a public image of ignorance ..., producing*414 demagogic oratory, ... or "freezing” members into publicly expressed opinions they might well prefer to abandon. In such initial stages, it is well that much be done and said which is exploratory, experimental and hypothetical, and open meetings could prove to be an impediment to a free exchange of ideas of that sort.
Id. at 357 (Fogleman, J., concurring).
. See Steven J. Mulroy, Sunlight’s Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy, 78 Tenn. L. Rev. 309 (2011); Mark Fenster, The Opacity of Transparency, 91 Iowa L. Rev. 885, 908-10 (2006) (stating that anecdotal evidence suggests that over-inclusivity of openness rules results in "fewer meetings, constrained, less-informed dialogue, [and] domination by those who possess greater communications skills and self-confidence, no matter the quality of their ideas”); Nicholas Johnson, Open Meetings and Closed Minds: Another Road to the Mountaintop, 53 Drake L. Rev. 11, 22-27, 44-45 (2004) (pointing оut that local agency members are often volunteers who own businesses or hold jobs in the community, and that their inhibitions to speaking freely in meetings attended by the media and the community may extend to reasonable concerns about loss of customers, loss of a job, or social ostracism); David A. Barrett, Note, Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings under the Federal Sunshine Act, 66 Tex. L. Rev. 1195, 1213-16 & n.115 (1988) (advocating a narrow interpretation of "meeting” under the federal enactment to exclude the initial, collective-inquiry stage, and suggesting that a broad construction would ultimately result in agencies making dеcisions based on incomplete or distorted information).
. In Ackerman, the Commonwealth Court determined that, since Section 713 only authorizes the invalidation of official action taken at an unlawful meeting, it does not permit courts to invalidate votes taken at a public meeting held after a private meeting, even if the private meeting was improper. See Ackerman,
. Appellant has omitted from both the reproduced record and the certified record large portions of the Reiser transcript, including the section where the Township’s attorney questioned the deponent. We find this problematic insofar as Appellant seeks to rely on that very transcript as alleged proof of a Sunshine Act violation. Absent the ability to review the missing portion of the deposition, we are left without any information concerning whether Mr. Reiser may have clarified, or "backtracked” from, his earlier answers.
. Even if Appellant were able to adduce sufficient evidence to prove that the challenged closed-door gatherings entailed deliberations, the primary relief he requested would be unavailable: his complaint asks that the county court invalidate actions taken during, or as a result of, discussions held at the closed-door meetings. No official actions were taken at the closed-door gatherings, however, and it is the prevailing law of this Commonwealth that the Sunshine Act does not authorize courts to invalidate official action taken at a subsequent public meeting that conforms to the Act's requirements, based on an earlier, improper closed-door meeting. See supra note 8; see also ACORN v. SEPTA,