With the conclusion of the four security-related exemptions, the “Exemptions, Explained” blog series moves on to the issue of personal information. Section 708(b)(5) protects individual medical information; Deputy Chief Counsel Katie Higgins provided the legal analysis.  As of November 14, 2023, this exemption has been cited in 397 OOR appeals.  

Section 708(b)(5) protects a “record of an individual’s medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers’ compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”

Clearly, the public does not have a right to know an individual’s medical history or status. Given the types of records that may exist in some government agencies, a clear-cut and firm exemption is vital to the inviolability of the Right-to-Know Law.

As with all other exemptions, merely stating the requested records are medical and thus exempt is not sufficient. An agency must submit facts to substantiate the claim that records fall into an exemption category. Though it may seem adequate to state, “these are medical records,” the agency is required to provide evidence that they in fact rise to that description. [1]

Most of the case law on medical records affirms the strength of its absoluteness.

Medical records with an individual’s identifiable information redacted are still exempt. The OOR has repeatedly held that an individual’s medical records are not subject to disclosure for any reason and cannot be provided even when de-identified.[2]

The Requester’s relationship to events in the record have no impact on medical exemption. No one gets medical records, period. “…mental health records of the Requester are not subject to disclosure to any person for any reason.”[3] “This individual medical treatment exemption contains no language permitting any third party to waive application of the exemption, nor is the exemption limited in application against the subject of the medical records themselves.”[4]  Therefore, even if a Requester is seeking their own medical records that they may otherwise be entitled to, they still cannot receive the records in response to a RTKL request.

Exemption applies to inmate and police records.

• Health and medical information about inmates. “…the OOR’s denial of Williams’ Request is not based on the fact that the requested medical records belong to an inmate, but rather because medical records are exempt from public disclosure under the RTKL” [5]
• Injured on Duty reports regarding police officers “…the Department has demonstrated that the requested forms and the memorandum contain individually identifiable health information. Consequently, the Department has met its burden of proving that the requested records are not subject to disclosure.”[6]

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[1] Bojarski v. Nazareth Sch. Dist., OOR Dkt. AP 2023-1413, 2023 PA O.O.R.D. LEXIS 2029; Vargas v. City of Phila. Police Dep’t, OOR Dkt. AP 2023-1153, 2023 PA O.O.R.D. LEXIS 1826. 

[2] See Monaghan v. Downingtown Area Sch. Dist., OOR Dkt. AP 2021-0369, 2021 PA O.O.R.D. LEXIS 1359; Ortiz v. Pa. Dep’t of Corr., OOR Dkt. AP 2017-2193, 2017 PA O.O.R.D. LEXIS 1819; Wishnefsky v. Pa. Dep’t of Corr., OOR Dkt. AP 2011-0171, 2011 PA O.O.R.D. LEXIS 172.

[3] Pryzbeyszewski v. Pa. Dep’t of Corr., OOR Dkt. AP 2012-2112, 2013 PA O.O.R.D. LEXIS 18.

[4] Pingue v. Uwchlan Twp. Police Dep’t., OOR Dkt. AP 2022-2059, 2022 PA O.O.R.D. LEXIS 2524.

[5] Williams v. Pa. Dep’t of Corr., 2016 Pa. Commw. Unpub. LEXIS 432, *4 (Pa. Commw. Ct. 2016).

[6] Fennell v. City of Phila. Police Dep’t, OOR Dkt. AP 2016-0423, 2016 PA O.O.R.D. LEXIS 506.