In this post, we discuss records related to labor relations and collective bargaining agreements, covered in section 708(b)(8).  Senior Appeals Officer Kelly Isenberg provided the legal analysis.  As of June 24, 2024, this exemption has been cited in 99 OOR appeals.  

Section 708(b)(8) exempts:

• A record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract or agreement between the parties in a collective bargaining procedure.
• in the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the final award or order of the arbitrator in a dispute or grievance procedure

Common sense dictates that publicly releasing records related to agency labor negotiations is not in the best interest of the public. Doing so could put the agency at great disadvantage as it attempts to procure a contract that may be of significant fiscal impact to taxpayers.  The exemption may be applicable to the records of a variety of agencies such as, school districts, policy departments, local municipalities and county governments, state universities, and Commonwealth agencies.

Most of the Final Determinations ascertain if an agency successfully proved that a record does relate to an exempt record pertaining to the strategy or negotiations related to collective bargaining or labor relations.

Some County Common Pleas court cases that have considered the OOR’s application of this exemption on review; however, the cases are not especially notable.  The Commonwealth Court issued a single published opinion in which it considered the application of Section 708(b)(8)(ii).  In Lutz v. City of Philadelphia, the primary issue was the application of Section 708(b)(8)(ii) to a request by newspaper reporter for “all arbitration awards, including written decisions by arbitrators, pertaining to police officers in the years 2005, 2006, 2007, 2008 through the present.”[1]  In response to the request, the City planned to release redacted records from 187 arbitration decisions.  The City’s Police Union sought injunctive relief to prohibit the City from releasing the records, which relief was partially granted by the Philadelphia Court of Common Pleas, permitting only the release of (1) the date the arbitration award was issued; (2) the name of the arbitrator; and (3) whether the grievance was affirmed or denied.[2]  The Commonwealth Court found that the Common Pleas Court erred by disregarding the language in Section 708(b)(8)(ii), which permits the release of the final award of the arbitrator.[3]  The Court noted that the exemptions under the RTKL are to be narrowly construed and that other RTKL exemptions could be applied to redact the information the union wished to protect, such as officer’s home address, personal identification information and information about spouses and children, and police staffing information.  Therefore, if the information had been somehow intermingled in the award records, it could be redacted.[4]   

Section 708(b)(8)(i)

An agency may rely on a sworn statement or a statement made under the penalty of perjury to support its assertion that the requested records relate to labor relations or collective bargaining, but such a statement may not be conclusory.    For an agency to carry its burden of proving that a record is exempt under 708(b)(8)(i), the evidence submitted may not merely rely on a recitation of the exemption language and statements should be authored by an individual with actual knowledge as to the context of the responsive records and how they would relate the content to strategy or negotiations relating to labor relations or collective bargaining. Notably, the exemption does not apply to records that only tangentially relate to collective bargaining. 

In an appeal where the OOR found that responsive emails were not exempt under Section 708(b)(8)(i), the attestations submitted by the District were conclusory and failed to demonstrate how the individual had actual knowledge of why the emails pertained to strategy or negotiations related to labor negotiations and, after an in camera review of the records, the OOR was unable to discern how the records pertained to strategy or negotiations relating to labor relations or collective bargaining.[5]  By comparison, in another appeal, a school district proved that a request for the emails of the district superintendent that had been exchanged with the district’s education association regarding potential healthcare options for members were exempt under Section 708(b)(8)(i), because there were ongoing negotiations year round and the district superintendent’s duties included negotiations and labor relations.[6]

In one Final Determination, access to “a copy of the Gov HR Classification and Compensation Study Draft Final report” was denied under 708(b)(8)(i) where that record was not specifically tied to labor unions. The agency successfully argued that since neither “strategy” or “labor relations” are defined under the RTKL, the exemption is not exclusive to collective bargaining agreements.  The OOR found that “the report is a ‘plan or strategy’ intended to help the Township achieve a goal, and it is exclusively focused on the relationship between the Township and its employees, past and future. Therefore, although the report is not concerned primarily with any specific present labor negotiation, it nonetheless meets the definition of ‘[a] record pertaining to strategy […] relating to labor relations’ under Section 708(b)(8) of the RTKL, and the OOR is constrained to deny the appeal on this basis.”[7]

708(b)(8)(ii)

Similar to the RTKL exemption that may apply to records related to investigation proceedings undertaken as a result of complaints from or about employees,[8] in Section 708(b)(8)(ii), the RTKL exempts certain records reflecting the records that are part of an arbitration proceeding related to a dispute or a grievance under a collective bargaining agreement, but not the final award or order.  This subsection allows agencies to conduct a thorough investigation of labor related or collective bargaining grievances or disputes, without the participants being concerned with potentially sensitive or personal information being disclosed.  The exemption is balanced by the express designation of the outcome of such an investigation as a public record to ensure that the citizenry are apprised of how a labor agreement funded by tax payer dollars is being carried out.

An example of the application of Section 708(b)(8)(ii) involved whether an agency properly withheld all records responsive to a request for “a copy of the arbitrator’s decision regarding the police department contract, date range 2015-2016” under Section 708(b)(8)(i).  The agency argued that the records pertain to collective bargaining.[9]  The OOR found that, with respect to the arbitrator’s order, as compared to the arbitrator’s opinion, Section 708(b)(8)(ii) expressly makes such records public and, because no other grounds for withholding were raised by the agency, the order was subject to access by the Requester.[10]  Similarly, the OOR has held that, in response to a request for “police grievance arbitration awards,” the agency properly applied Sections 708(b)(8)(i) and (ii) by providing a redacted record, showing the arbitration caption page and the award page.[11]  

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[1] 6 A.3d 669 (Pa. Commw. Ct. 2010).

[2] Lutz, 6 A.3d at 672.

[3] Id. at 674.

[4] Id.

[5] Brown v. Penncrest Sch. Dist. OOR Dkt. AP 2023-2058, 2024 PA O.O.R.D. LEXIS 343; cf. Abrams v. Morrisville Sch. Dist., OOR Dkt. AP 2023-0165, 2023 PA O.O.R.D. LEXIS 779 (district proved that email were exempt under Sec. 708(b)(8)(i) as they contained discussions about the potential impact of school district mergers on the existing collective bargaining agreement).

[6] Grega v. Weatherly Area Sch. Dist., OOR Dkt. AP 2021-0207, 2023 PA O.O.R.D. LEXIS 225.

[7] Salisbury v. Doylestown Twp., OOR Dkt. AP 2022-0907, 2022 PA O.O.R.D. LEXIS 1537.

[8] See 65 P.S. § 67.708(b)(17).

[9] Yakim v. Municipality of Monroeville, OOR Dkt. AP 2016-1890, 2016 PA O.O.R.D. LEXIS 1653.

[10] Id. at *5-6.

[11] Ra’Sheen Brown v. City of Phila. Police Dep’t, OOR Dkt. AP 2015-1687, 2015 PA O.O.R.D. LEXIS 1383.