Exemptions, Explained: 708(b)(1)

Today we begin a new series of posts called, “Exemptions, Explained”.

Under the Right-to-Know Law (“RTKL”), thirty categories of records are exempt from mandated access.  These categories are outlined in Section 708(b) of the statute; each blog post will explore the presumed impetus behind the exemption, the types of records for which the exemption is often cited, and the court cases that have clarified legal use of the exemption.

Case law addressing each of the RTKL’s exemptions can be found on the OOR’s website at:  https://www.openrecords.pa.gov/Documents/RTKL/RTKL_Case_Index.pdf

Notably these records are not deemed “confidential” and, thus, prohibited from being released.  Rather the records falling within the RTKL’s exemptions are not required to be provided in response a RTKL request.  Therefore, unless the records are prohibited from being released by another state or federal law, the agency can, within its discretion, release them.

First up is Section 708(b)(1), which was cited in 997 of the OOR’s final determinations as of January 4, 2023. Appeals Officer Erika Similo wrote the legal analysis of this exemption.

Section 708(b)(1) exempts:

(1) A record, the disclosure of which:

(i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or

(ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.

708(b)(1)(i) Loss of Federal or State Funds

The two parts of this exemption are quite distinct. The first, 708(b)(1)(i), states that records that would result in the loss of Federal or State funds by the agency may be withheld.  Although not frequently cited, the impetus behind this subsection is clear; an agency should not be forced to risk violating another law or rule that would result in the loss of critical funds.

When considering 708(b)(1)(i), the OOR interprets this exemption as a concrete loss of funds, not a speculative one; thus, the agency must be able to demonstrate the specific mechanism for this loss of funds versus just citing that potential. 

  • In Carlson v. Housing Auth. of the City of Pittsburgh[1],the Request sought a copy of a particular federal grant application submitted to the U.S. Department of Housing and Urban Development (“HUD”).  On appeal, the agency did not provide evidence that it would, in fact, lose any federal funding if the application was disclosed.  Accordingly, the OOR determined that the agency did not meet its burden of proving the requested grant application is exempt from disclosure under Section 708(b)(1)(i) of the RTKL. 
  • In Bridy v. Northumberland Cnty[2]., the Request sought contracts, studies, and other information related to a specific property where a 911 tower is located and other potential locations for a new 911 tower.  On appeal, the agency submitted no evidence, and when asked by the OOR to provide support for the contention that disclosure of the studies would result in the loss of federal funding, the agency responded that itwasunable to locate any federal guidelines that would jeopardize the agency’s funding.  Because the agency was unable to demonstrate the specific mechanism for this loss of funds, the OOR determined that the agency did not demonstrate that the requested records were exempt from disclosure under Section 708(b)(1)(i) of the RTKL. 

More often, however, on appeal, Section 708(b)(1)(i) is argued in conjunction with a specific statute, such as the federal Family Educational Rights and Privacy Act (FERPA)[3] which protects “personally identifiable information” contained in “education records” from disclosure and financially penalizes school districts “which [have] a policy or practice of permitting the release of education records…of students without the written consent of their parents.”  Therefore, agencies often argue that a requested record is a student record, and its release would risk the loss of education-related funds. 

  • For example, in Fieber v. New Hope-Solebury School District[4], a RTKL request was filed seeking  records related to a settlement agreement and a contract.  The agency argued that the requested records were protected by FERPA and were exempt from disclosure under Section 708(b)(1)(i) because the disclosure of the requested records would result in the loss of federal or state funds. The OOR found that, while settlement agreements are generally subject to public disclosure—so long as personally identifying information can be redacted—the agency demonstrated that redaction of the student’s name from both requested records would not protect the student’s identity as required by FERPA.  Thus, the OOR determined that the requested records were exempt from disclosure in their entirety under FERPA. 
  • More recently, in Mayer v. Tredyffrin-Easttown School District[5], a RTKL request was filed seeking benchmark reading data broken down by school and student.  In that instance, the agency argued that spreadsheets containing certain benchmark elementary school reading data were protected by FERPA and were exempt from disclosure under Section 708(b)(1)(i) RTKL.  The OOR determined that the agency demonstrated that the responsive records could not be sufficiently de-identified and, therefore, the records were wholly protected by FERPA. 

Because Section 708(b)(1)(i) is most always argued in conjunction with another state or federal law, such as FERPA, little guidance regarding this exemption has been provided by the Courts because cases where this exemption is raised usually does not address the merits of 708(b)(1)(i). 

However, in Easton Area Sch. Dist. v. Miller[6], the Pennsylvania Supreme Court examined FERPA’s relationship to Section 708(b)(1)(i) of the RTKL.  It found that a school bus surveillance video that qualifies as an education record under FERPA is not automatically exempt from disclosure under the RTKL. The agency must prove that disclosure of the video would result in loss of federal funds, and student images should be redacted from any publicly released recording.

708(b)(1)(ii) Physical Harm/Personal Security

The second part of Section 708(b)(1) covers physical harm or personal security of an individual.  The purpose behind this subsection is clear; the right to view records is not outweighed by a real threat to an individual’s safety and security.  The statutory language, however, does set the bar high, as the disclosure of the records sought—not the records themselves—must be “reasonably likely to result in a substantial and demonstrable” risk of harm.

Since this exemption does not define “reasonably likely” or “substantial and demonstrable risk[,]” guidance has been provided by the Commonwealth Court:

  • An agency must show “a reasonable likelihood” of “a substantial and demonstrable risk” of harm .[7]
  • An agency must offer more than speculation or conjecture to establish the security-related exceptions under the [RTKL].”[8] 
  • Section 708(b)(1) can be applied to groups of people if a risk would apply to many people at once, but still cannot be speculative.[9] 

In practice, Section 708(b)(1)(ii) is often cited by law enforcement agencies, such as police departments and correctional facilities, when seeking to protect the disclosure of certain records in their possession (e.g. policy and procedure manuals, use of force records, incidents reports, records that identify officers, etc.).  

Section 708(b)(1)(ii) is also frequently cited by various agencies, including correctional institutions, in the denial of surveillance videos.  In Hatch v. Pennsylvania Department of Corrections[10], the OOR found that the agency met its burden of proof that the release of surveillance footage from inside a correctional facility is exempt under Section708(b)(1)(ii). 

Further, following the guidance of the Court, the OOR has generally found the professional opinion of individuals assessing the security risks to be credible and will not substitute its judgment for that of those with far more familiarity with the issues involving personal security (and public safety).  Nonetheless, the OOR is not required to blanketly accept such opinions.  Professional opinions are still required to consist of more than mere speculation and must be supported by an adequate factual basis when setting forth security risks.[11] 

Even though many agencies that argue that records are exempt from disclosure pursuant to this exemption are law enforcement agencies or correctional institutions, 708(b)(1)(ii) is also argued in other instances.

Recently, in Cristea v. Bristol Township School District[12], the OOR determined that the agency proved that the release of card swipe records for a specific employee over several dates was reasonably likely to endanger that individual’s personal security.   

Other Commonwealth Court cases that address Section 708(b)(1)(ii) of the RTKL and that are discussed in more detail in the OOR’s Case Law Index are:

  • Brown v. Pa. Department of State, 189 A.3d 1162 (Pa. Commw. Ct. 2018). 
  • State Employees’ Retirement System v. Pennsylvanians for Union Reform, 113 A.3d 9 (Pa. Commw. Ct. 2015).
  • Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2011).
  • Commonwealth v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61 (Pa. Commw. Ct. 2014).

As a final note, because the objective of the RTKL is to afford citizens access to information concerning government activities, even when considering the security related exemptions, such as 708(b)(1)(ii), the OOR will prefer redaction of the protected information in responsive records rather than withholding of the records entirely, if evidence establishes that redaction can satisfy the apparent security risk.[13] 

[1] OOR Dkt. AP 2013-1820

[2] OOR Dkt. AP 2022-2112

[3] 20 U.S.C. § 1232g(b)(1). 

[4] OOR Dkt. AP 2013-1020

[5] OOR Dkt. AP 2019-2019

[6] 232 A.3d 716 (Pa. 2020)

[7] Del. Cnty. v. Schaefer 44 A.3d 1149 (Pa. Commw. Ct. 2012)

[8] Cal. Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018).

[9] Crocco v. Pennsylvania Department of Health. 214 A.3d 316, 324 (Pa. Commw. Ct. 2019) (upholding the redaction of names of individuals who served non-hospital abortion facilities under Section 708(b)(1)(ii)); State Employees’ Retirement System v. Fultz, 107 A.3d 860, 866-67 (Pa. Commw. Ct. 2015) (deeming categorical evidence as to vulnerability of individuals over age 60 insufficient).

[10] OOR Dkt. AP 2019-2637,

[11]See Ocasio v. Pa. Dep’t of Corr., 183 A.3d 506, 2018 Pa. Commw. LEXIS 18 (Pa. Commw. Ct. 2018) (unreported) and American Civil Liberties Union of Pennsylvania v. Pennsylvania State Police, 232 A.3d 654, 666 (Pa. 2020) 

[12] OOR Dkt. AP 2022-1610

[13] See Vaughn and PennLive v. Dauphin County, OOR Dkt. AP 2023-0107 and Steinheiser v. Southeastern Pennsylvania Transportation Authority, OOR Dkt. AP 2022-1908

One thought on “Exemptions, Explained: 708(b)(1)

  1. Pingback: Exemptions, Explained: 708(b)(2) | Open Records in Pennsylvania

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