The Pennsylvania Supreme Court’s recent decision in Pennsylvania State Education Association vs. The Office of Open Records, 2016 Pa. LEXIS 2337, 41 I.E.R. Cas. (BNA) 1310 (Pa. Oct. 18, 2016), opens with this text:

This case involves an examination of the scope of the “personal security” exception to disclosure under the Right to Know Law (“RTKL”), 65 P.S. §§ 67.101- 67.3104, and, more specifically, whether school districts must disclose the home addresses of public school employees. Under the prior Right to Know Act, 65 P.S. §§ 66.1-66.4 (repealed, effective January 1, 2009) (“RTKA”), this Court had on three occasions ruled that certain types of information, including home addresses, implicated the right to privacy under Article 1, Section 1 of the Pennsylvania Constitution, and thus required a balancing to determine whether the right to privacy outweighs the public’s interest in dissemination. Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Employees’ Retirement Board, 935 A.2d 530 (Pa. 2007); Tribune-Review Publ. Co. v. Bodack, 961 A.2d 110 (Pa. 2008). Our task here is to determine whether this analysis continues to obtain under the RTKL. We hold that it does.

The case most directly addresses the issue of Right-to-Know Law requests for the home addresses of public agency employees (e.g., teachers) when a request is directed to their employer (e.g., school district).

But it has broader implications as well, as the right of privacy inherent in Article 1, Section 1, of the Pennsylvania state constitution (“All men are born and equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”) also applies outside the specific context of a request for the home addresses of public agency employees directed to their employer.

You can read the majority opinion here, and a concurring opinion here.

As the Office of Open Records handles cases – both requests and appeals – dealing with the type of personal information addressed in PSEA, I’ll post our responses and decisions here in an attempt to help members of the public and public agencies navigate similar issues.

On October 19, 2016, the OOR received the following request (edited for brevity and clarity):

1. For the time-period January 1, 2009, to October 18, 2016, please extract from your computerized databases the names and addresses of everyone who filed a Right-to-Know Law appeal with the OOR.

2. Please send me the names and home addresses of all persons currently employed by the OOR.

The OOR’s full response follows:

1. Item 1 of the request is granted in part and denied in part.

Specifically, for each appeal docketed since January 1, 2009, the OOR grants access to the following information from our database: (1) the Requester / Appellant’s name and (2) the Requester / Appellant’s city, state, and ZIP code. While not requested, we are also providing the docket number for each appeal. Based upon the following reasoning, the OOR denies access to the Requester / Appellant’s street address information from our database.

The OOR is a quasi-judicial agency and OOR appeal files are akin to judicial records, which are generally available pursuant to the public’s right to access court proceedings and records which is grounded in the First and Sixth Amendments of the U.S. Constitution; Article I §§ 7, 9, and 11 of the Pennsylvania Constitution; and the common law. See Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Commw. Ct. 2016) (quoting Office of Open Records v. Center Twp., 95 A.3d 354, 363 (Pa. Commw. Ct. 2014)); see generally Faulk v. Phila. Clerk of Courts, 116 A.3d 1183 (Pa. Commw. Ct. 2015); 45 Pa. Bull. 661 (Feb. 7, 2015) (relating to proposed public access policy for court case records). However, these constitutional and common law rights are not absolute and may be qualified by overriding interests.

The Pennsylvania Supreme Court, in its recent decision in PSEA v. Office of Open Records, held that “nothing in the RTKL suggests that it was ever intended to be used as a tool to procure personal information about private citizens or, in the worst sense, to be a generator of mailing lists. Public agencies are not clearinghouses of ‘bulk’ personal information otherwise protected by constitutional privacy rights.” PSEA, 2016 Pa. LEXIS 2337. *39 (Pa. 2016).

Additionally, the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania (“Policy”) governs access to “all electronic case records” of the Unified Judicial System. 204 Pa. Code § 213.72(a). While the OOR is not part of the Unified Judicial System, as a quasi-judicial agency we will use the Policy to govern access to our electronic case records, particularly in light of the PSEA decision. Under Section 213.74(a) of the Policy, “[a] request for bulk distribution of electronic case records shall be permitted for data that is not excluded from public access as set forth in this policy” (emphasis added). Under Section 213.73 of the Policy, “[t]the following information in an electronic case record is not accessible by the public: … (6) a party’s street address, except the city, state, and ZIP code may be released”* (emphasis added).

2. Item 2 of the request is granted in part and denied in part.

Specifically, the OOR grants access to “the names … of all persons currently employed by the Pennsylvania Office of Open Records” and denies access to “the … home addresses of all persons currently employed by the Pennsylvania Office of Open Records.”

In PSEA, the Supreme Court held that agencies must consider an individual’s right to privacy prior to granting access to certain information under the RTKL. 2016 Pa. LEXIS 2337 at *40 (“The right to informational privacy is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure.”). The Court reasoned that, through its “decisions in Sapp Roofing, Penn State and Bodack, [it] has developed a body of case law requiring governmental agencies to respect the constitutional privacy rights of citizens when disseminating requested information. In such circumstances, a balancing test is required before the disclosure of any personal information.” Id. at *35 (emphasis added); see also Sapp Roofing Company, Inc. v. Sheet Metal Workers’ International Association, Local Union No. 12, 713 A.2d 627 (Pa. 1998); Pa. State Univ. v. State Employees’ Retirement Board, 935 A.2d 530 (2007); Tribune-Review Publ. Co. v. Bodack, 961 A.2d 110 (Pa. 2008). The Court noted that the constitutional right to privacy must be applied even where there is no RTKL exemption expressly stating that this constitutionally protected personal information can be withheld. Id.; see also 65 P.S. § 67.305(a)(3) (excluding records exempt from disclosure under State law from the presumption that a record in the possession of an agency is a public record).

Also in PSEA, the Court reiterated that “where constitutionally protected privacy rights are implicated[,]” the applicable standard is “‘a balancing test, weighing privacy interests and the extent to which they may be invaded against the public benefit which would result from disclosure.’” PSEA, 2016 Pa. LEXIS 2337 at *30 (citing Tribune-Review Publ. Co. v. Bodack, 875 A.2d 402, 408 (Pa. Commw. Ct. 2005) (quoting Times Publ. v. Michel, 963 A.2d 1233, 1239 (Pa. Commw. Ct. 1993))). In previous decisions, the Court has held that the constitutionally required balancing test does not require an agency to “establish[], through particular and item-specific evidence, that the challenged information in an otherwise public record definitively meets one of the exception[.] On the contrary, if anything, our case law has recognized that there are certain types of information whose disclosure, by their very nature, would operate to the prejudice or impairment of a person’s privacy, reputation, or personal security, and thus intrinsically possess a palpable weight that can be balanced by a court against those competing factors that favor disclosure.” Tribune-Review Publ’g Co. v. Bodack, 961 A.2d 110, 115-16 (Pa. 2008). “‘[C]ertain types of information,’ including home addresses, by their very nature, implicate privacy concerns and require balancing.” PSEA, 2016 Pa. LEXIS 2337 at *35-36 (citing Bodack, 961 A.2d at 115-16).

In PSEA, the Court held that the home addresses of public school employees were not subject to access under the RTKL because they were protected by the right to privacy. The Court summarized its application of the balancing test as follows:

On the one hand, the public school employees have strong privacy interests in protecting their home addresses from disclosure, in response to broad and generic requests based upon no criteria other than their occupation. As PSEA indicates, public school employees just want to work, and should not be required to forfeit their privacy merely as a precondition to, or by virtue of their decision to be employed by as public school employees. On the other hand, the OOR has identified no public benefit or interest in disclosure of perhaps tens of thousands of addresses of public school employees. We likewise perceive no public benefit or interest to disclosure in response to such generic requests for irrelevant personal information of these particular employees[.] … While the goal of the legislation to make more, rather than less, information available to public scrutiny is laudable, the constitutional rights of the citizens of the Commonwealth to be left alone remains a significant countervailing force.

PSEA, 2016 Pa. LEXIS 2337 at *38-39.

Courts have also noted that “[t]he disclosure of personal information such as home addresses, reveals little, if anything about the workings of government[.]” Id. at *4-5 (citing PSEA v. Office of Open Records, 981 A.2d 383, 386 (Pa. Commw. Ct. 2009)).

Here, Item 2 of the request seeks the names and home addresses of OOR employees. As such, the OOR must perform a balancing test by weighing privacy interests of its employees against the public benefit of disclosing the information and determine whether the release of the requested information is in the public interest. After applying the balancing test, the OOR finds no discernable public benefit to the release of OOR employees’ home addresses.

FOOTNOTE:

* Section 213.74(b) of the Policy lists exceptions under which “electronic case records not publicly accessible under § 213.73 of this Policy may be fulfilled.” 204 Pa. Code §§ 213.73-.74. The instant request does not fall under any of the exceptions.