2024-0939: The clearance procedures of a prison x-ray body scanner are exempt, but the testing/maintenance records of a prison x-ray machine are accessible under the RTKL.

2024-1033: A list of property addresses and corresponding terminology used by a city councilmember are not exempt under the RTKL as personal notes or working papers.

2024-0921: A county was not required to contact a nonprofit tourism promotion agency for relevant information when responding to a RTKL request because there was no contractual relationship.

2024-1269: Agency did not show that information regarding the amount and type of ammunition bought and used by a sheriff’s office was exempt under the public safety exemption.

2024-1311: Request was filed by an online organization/business using an anonymous request feature.  Agency was not required to further respond to request when the requester did not confirm identity or US residency.

2024-1099: Inmate names including admission and release dates are accessible under the RTKL.

2024-0701: The names of township police officers are public even where officers were demoted and terminated.

2024-0763: Agency did not show that parking reports of employees are exempt as internal deliberations or working papers. Personal identifying information is exempt and may still be redacted.

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.

Good afternoon.

Earlier today, we sent all agency open records officers registered with our office a link to a survey.

Understanding the challenges facing agencies who are subject to the Right-to-Know Law (RTKL) is an important goal of the Office of Open Records (OOR); this survey project is a critical way to gather that information.

The survey should take about five minutes, asking basic information regarding your agency’s experiences with Right-to-Know requests, helping inform the OOR and policy makers.

We’re also asking if the Open Records Officer is willing and interested in being contacted for a brief, 10-minute one-on-one discussion in order to enhance our understanding of the RTKL challenges and opportunities facing agencies.

The survey results will be published in August. Thank you for your consideration.

Next, we discuss records related to agency employees. Section 708(b)(7) protects certain records related to employees’ information. Chief Counsel Kyle Applegate provided the legal analysis for this exemption.  As of June 7, 2024, this exemption has been cited in 584 OOR appeals.  

Section 708(b)(7) exempts “the following records relating to an agency employee:

• A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation.
• A performance rating or review.
• The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed.
• The employment application of an individual who is not hired by the agency.
• Workplace support services program information.
• Written criticisms of an employee.
• Grievance material, including documents related to discrimination or sexual harassment.
• Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge.
• An academic transcript.”

The specific types of records exempt in this clause are plainly worded and fairly specific. Critically, this is not a blanket exemption that applies to all personnel-related records.[1]  The exemption also does not protect entire personnel files.[2]

One often-cited part of the case law on this exemption centers around the public nature of the “final action of the agency that results in demotion or discharge”:

• The act of demoting or discharging an employee is public; the circumstances behind that decision are not. For example, an agency may redact the reasons for the termination of an employee but may not redact but not the name, date and nature of the separation (i.e., termination or resignation).[3]
• An employee resignation letter is not covered by the exception because a voluntary choice to leave employment does not constitute a “discharge”.[4]
• Employee discharges pending arbitration are not final actions until that process has concluded.[5]
• Records reflecting the financial impact of a personnel action are public records. Settlement agreements[6] and severance payments[7] are public. 

Other case law reaffirms that records reflecting potentially negative information about an employee are expressly exempt:

• Employee discipline records in a personnel file.[8]
• Written criticism of an employee made by an agency.[9]
• Employee performance reviews of agency employees.[10]
• Grievance material related to an individual employee, but not a general labor dispute under a collective bargaining agreement. [11]

In addition, many records related to applications for employment to an agency are exempt:

• Applications of individuals not hired by an agency, including those applicants’ names, are exempt records.[12] Notably, the Commonwealth Court found that this exemption does not apply to applications for a gubernatorial appointment to a judicial vacancy, because the individuals that applied were not agency employees and not hired by the agency.[13]
• Names of references in employment applications.[14]

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[1] Krug v. Bloomsburg Univ. of Pa., OOR Dkt. AP 2018-1600, 2018 PA O.O.R.D. LEXIS 1442; Hummel v. Union Sch. Dist., OOR Dkt. AP 2018-1550, 2018 PA O.O.R.D. LEXIS 1197.

[2] Friend v. Chester City, OOR Dkt. AP 2023-1354, 2023 PA O.O.R.D. LEXIS 1928.

[3] Silver v. Borough of Wilkinsburg, 58 A.3d 125, 129 (Pa. Commw. Ct. 2012).

[4] Fruchter v. Borough of Malvern, 303 A.3d 530, 537-38 (Pa. Commw. Ct. 2023); Brown v. Penncrest Sch. Dist., OOR Dkt. AP 2023-2058, 2024 PA O.O.R.D. LEXIS 343.

[5] In re Melamed, 287 A.3d 491 (Pa. Commw. Ct. 2022).

[6] Newspaper Holdings, Inc. v. New Castle Area Sch. Dist., 911 A.2d 644 (Pa. Commw. Ct. 2006).

[7] Allegheny County Airport Auth. v. Belko, No. 117 C.D. 2023, 2023 Pa. Commw. Unpub. LEXIS 520 (Pa. Commw. Ct. 2023).

[8] Jones v. City of York Police Dep’t, OOR Dkt. AP 2023-2905, 2024 PA O.O.R.D. LEXIS 483.

[9] Weber v. Harrisburg Area Cmty. College, OOR Dkt. AP 2023-1559, 2023 PA O.O.R.D. LEXIS 2024.

[10] Commonwealth v. Rudberg, 32 A.3d 877 (Pa. Commw. Ct. 2011).

[11] Johnson v. Pa. Convention Ctr. Auth., 49 A.3d 920, 924 (Pa. Commw. Ct. 2012); see also McGill v. Bangor Borough, OOR 2010-1216, 2011 PA O.O.R.D. LEXIS 70.

[12] Alecknavage v. Yeadon Borough, OOR Dkt. AP 2023-0051, 2023 PA O.O.R.D. LEXIS 328.

[13] Office of Gen. Counsel v. Bumsted, 247 A.3d 71 (Pa. Commw. Ct. 2021).

[14] Furman v. Bethlehem-Center Sch. Dist., OOR Dkt. AP 2019-1287, 2019 PA O.O.R.D. LEXIS 1039.

The OOR has been contacted by numerous agencies who have received Right-to-Know Law requests from requesters using FOIA Buddy. Please read this for more information.

The Liquor Control Board demonstrated that granting access to bourbon whiskey delivery schedule records to different County liquor stores would threaten the security of an individual. This decision has been appealed to Commonwealth Court. 2024-0251

The applications of unsuccessful applicants for a position, including those applicants’ names, are exempt records. 2024-0539

The Copyright Act may prohibit the reproduction of copyrighted works, but the agency must permit the requester to inspect the responsive records. 2024-0443

A Zoom recording of a cyber charter school public meeting is not found to be “personal notes” of the board’s secretary and therefore the recoding is subject to disclosure. 2024-0816

A requester is entitled to a refund of duplication fees paid for records produced by the agency that are not responsive to the request. 2023-2227

The identity of the requester and motivation for the request are irrelevant in determining whether records are exempt from disclosure. 2024-0266

The RTKL’s exemption for trade secrets or confidential, proprietary information does not apply to financial records. 2024-0272

Responsive records may not be subject to the Federal Educational Rights and Privacy Act (“FERPA”) if the records can be redacted such that the student’s identity cannot be ascertained with a reasonable degree of certainty. 2024-0238

Even the most dedicated transparency advocates will draw a line when it comes to the disclosure of certain personal information in records. Section 708(b)(6) of Pennsylvania’s Right-to-Know Law (“RTKL”) allows government agencies to withhold personal identification information from public access.   In this edition of “Exemptions, Explained,” with legal analysis provided by Appeals Officer Angela Edris, we explore this exemption and how it’s been interpreted by both the Courts and the Office of Open Records (“OOR”).  

Section 708(b)(6) is, with good reason, one of the most frequently used exemptions by government agencies when redacting or withholding information from public disclosure.  As of April 3, 2024, Section 708(b)(6) of the RTKL has been cited in approximately 1,254 OOR appeals.  

Section 708(b)(6) of the RTKL protects:

(i) The following personal identification information: (A) A record containing all or part of a person’s Social Security number, driver’s license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number. (B) A spouse’s name, marital status or beneficiary or dependent information. (C) The home address of a law enforcement officer or judge. (ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment related contract or agreement and length of service of a public official or an agency employee. (iii) An agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.

A multitude of obvious reasons explain the need to protect such sensitive information. The sharing of personal identification information by a government agency leaves individuals vulnerable to identity theft and hacking, and agencies potentially liable to expensive litigation if such breaches occur due to their disclosure of information. The specific withholding of home addresses of law enforcement and judges, as well as identifying information related to undercover law enforcement, upholds a long-standing and widely held belief that the sharing of such information poses a security risk.

Although “personal identification information” is not defined in the RTKL, the Commonwealth Court has found that such information “refers to information that is unique to a particular individual or which may be used to identify or isolate an individual from the general population.”[1]  The Court has described it as “information which is specific to the individual, not shared in common with others” and “that which makes an individual distinguishable from another.”[2]

Typically, personal identification information is redacted from agency records when providing them to a requester.  Where personal identification information is not an integral part of a record and is able to be redacted, an agency may not withhold the entire record simply because it contains such information.[3]

Email addresses and telephone numbers

Agency-issued email addresses and telephone numbers may be subject to exemption under Section 708(b)(6) if that information is personal to an employee or official.[4]  Similarly, personal email addresses and personal telephone numbers, including home and cellular, of employees and/or private citizens may also be withheld and redacted from agency records.[5]  However, an email address or telephone number that has been “held out to the public” (ex. on a website) is not considered personal identification information subject to the exemption.[6]   Similarly, although fax numbers are not specifically included in the language of the Section, the OOR has found that such numbers, when personal in nature and not held out to the public, are also exempt from access.[7] 

Employee numbers and other confidential personal identification numbers

The OOR has found that “employee numbers” and “confidential personal identification numbers” constitute such things like usernames and passwords,[8] examiner identification numbers,[9] operator license numbers and state identification numbers (SID),[10] passport identification numbers,[11] employee payroll numbers,[12] and tenant ID numbers.[13]

However, a Zoom link and corresponding meeting ID and password which was exchanged for purposes of an agency committee meeting is not considered to be a confidential personal identification number under this Section.[14] 

Personal financial information

The core of the RTKL is that the public has a right to know how tax dollars are spent; as a result, financial records are generally public. However, an agency’s financial records may include an individual’s financial information that should be withheld. Agencies may withhold “personal financial information, which includes: an individuals’ personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.”

In Pa. Dep’t of Conserv. & Nat. Res. v. Office of Open Records,[15] the Court examined the meaning of the phrase “other information relating to an individual’s personal finances,” and found that:

The word “finance” and its variant “finances” have broad meanings. “Finance” has been defined as “money resources, income, etc.” Webster’s New World Dictionary and Thesaurus 240 (2nd ed. 2002). “Finances” has been defined as “the pecuniary affairs or resources of a state, company, or individual.” Webster’s Third New Int’l Dictionary (Unabridged) 851 (1993). Though we could include additional dictionary support, these two alone clearly support a conclusion that an individual’s wages and wage-related information, such as that included in the certified payroll records at issue in these consolidated appeals, represent “money resources, income” and go to “the pecuniary affairs” of an individual. Because this information relates to an individual’s personal finances, the information contained in the certified 6 payroll records falls within the statutory definition of “personal financial information.”

Using the Court’s rationale in DCNR, the Courts and the OOR have found that a variety of information constitutes personal financial information which may be redacted from agency records.  Such information includes: individuals’ income and rental amounts in housing records,[16] names of workers in certified payroll records,[17] an agency employee’s salary information from a prior employer,[18] inmate account records that show money in an inmate’s account,[19] bank account information of individuals and private entities,[20] student loan documents that reveal the names, addresses and financial standing of an applicant as well as any other guarantors of the loan,[21] and names of property owners that directly correspond to unredacted tax withholdings.[22]

On the other hand, information which has been found to fall outside the definition of “personal financial information,” and therefore not subject to withholding, includes such things like: severance payments to a former employee,[23] weekly lottery sales data of a retailer operating as a sole proprietor that is collected and maintained by the Department of Revenue,[24]  and pension payments paid out by agency.[25]  Notably, in addition, the Commonwealth Court has held that an agency’s bank account number is not automatically subject to exemption under Section 708(b)(6).[26] 

Home addresses of judges and law enforcement

The home addresses of judges and law enforcement officers are exempt from disclosure, 65 P.S. § 67.708(b)(6)(i)(C).  Judges include magisterial district judges[27] and the term “law enforcement officers” includes constables.[28]  “The purpose of this unconditional protection afforded to the home addresses of law enforcement officers and judges is to reduce the risk of physical harm/personal security to these individuals that may arise due to the nature of their job.”[29]  This exemption also applies where a requester is seeking the address of an individual who also resides at the exempt address.[30]  In addition, Section 708(b)(6)(i)(C) is not limited by the retirement status of law enforcement officers and judges.[31]

Spouse’s name, marital status, beneficiary or dependent information

Section 708(b)(6)(i)(C) permits an agency to redact a spouse’s name, marital status, and beneficiary or dependent information.  Such information includes the name of a dependent on a health insurance policy[32] or tax withholding information that reveals marital status or dependent information.[33] The OOR has also found that a record of a life partnership formation and/or termination is a record that reflects the “marital status” of an individual.[34]  This Section does not protect the dollar amount of premiums paid by an agency for an individual employee for medical benefits coverage.[35]

Names and Compensation of Public Employees and Officials, among other things, are public.

Significantly, Section 708(b)(6) clearly indicates that certain information is public and is not intended to be covered by the Section.  Section 708(b)(6)(ii) essentially sets forth the general rule that an agency employee or public official’s name, position, salary, actual compensation, or other payments or expenses are public information. 

Under Section 708(b)(6)(ii), the amounts of employer-paid benefits, such as amounts paid for health insurance,[36] agency payments to pensions and retirement benefits paid for public employees[37] are subject to public access.  However, descriptions of voluntary employee contributions and employee-elected benefits are exempt from disclosure under Section 708(b)(6)(i)(A).[38] 

The only employee or official name that Section 708(b)(6) expressly permits an agency to withhold is the name of an individual, whether a police officer or not, who is engaged in undercover or covert work.[39] Except for those engaged in such work, the personal identification exemption does not permit the redaction of the identities of law enforcement.  While certain other RTKL exceptions might be utilized to shield identities or information regarding law enforcement, given the inherent personal security concerns,[40] the general rule is that names of employees and public officials, along with salary and compensation are public.    

Likewise, employment contracts, employment-related contracts or agreements and length of service of a public official or an agency employee are also considered to be public information as well. An insurance policy for public employees is considered “an employment-related contract” for health or dental coverage for employees, and payments for those policies by a public agency are “financial records” of the agency.[41] There is a strong public interest in knowing the remuneration received by agency employees and officials, both past and present.[42]

Information that is not protected under Section 708(b)(6)

In addition, while the list of protected information in Section 708(b)(6) is wide-ranging, the Section does not protect all information that one might consider to be personal in nature from disclosure.  Two types of such information which are often seen by the OOR in appeal proceedings are birth dates and home addresses.  While not expressly covered by Section 708(b)(6), such information has been found to be protected from disclosure, at least in part by Pennsylvania’s constitutional right to privacy.  While the right to privacy will be covered in more detail in another blog post in the future, it is important for the purposes of our discussion here to just note that where certain information that is personal in nature is not explicitly protected under Section 708(b)(6), it is possible that such information may be protected under the right to privacy, particularly where a privacy interest is implicated.  Likewise, information that is personal in nature should also be analyzed in the context of the RTKL’s other exemptions to determine whether those exemptions apply.[43] 

Other information that has been held to lack protection under Section 708(b)(6) of the RTKL include a person’s signature,[44] an individual’s photograph, names of annuitants,[45] license plate numbers and vehicle identification numbers.[46]

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[1] Del. County v. Schaefer, 45 A.3d 1149, 1153 (Pa. Commw. Ct. 2012).

[2] Id.

[3]  See 65 P.S. § 67.706.

[4] Office of the Lieutenant Gov. v. Mohn, 67 A.3d 123 (Pa. Commw. Ct. 2013) abrogated in part on other grounds, Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016); Pa. State Educ. Ass’n, 148 A.3d 142; Krug v. Bloomsburg Univ. of Pa., OOR Dkt. No. AP 2018-1589, 2018 PA O.O.R.D. LEXIS 1419.

[5] Gentner v. Palisades School District, OOR Dkt. AP 2021-2537, 2022 PA O.O.R.D. LEXIS 558;

[6] Pa. State System of Higher Education v. The Fairness Center, No. 1203 C.D. 2015, 2016 Pa. Commw. Unpub. LEXIS 245 (Pa. Commw. Ct. 2016); Zeyzus v. Pa. Game Commission, OOR Dkt. AP 2022-2336; 2022 PA O.O.R.D. LEXIS 2887.

[7] Abrams v. Morrisville Borough School, AP 2023-0165, 2023 PA O.O.R.D. LEXIS 779.

[8] Kneller v. PCCD, OOR Dkt. AP 2022-1206, 2022 PA O.O.R.D. LEXIS 1789.

[9] Baker v. Pa. Dep’t of Transportation, OOR Dkt. AP 2022-2838 2023 PA O.O.R.D. LEXIS 476.

[10] Barry v. Pa. Office of Admin., OOR Dkt. AP 2020-1210 2020 PA O.O.R.D. LEXIS 2596.

[11] Ullery v. Dep’t of Health, OOR Dkt. AP 2017-1420 2018 PA O.O.R.D. LEXIS 77.

[12] Feliciano v. Phila. District Attorney’s Office, OOR Dkt. No. AP 2019-0275, 2019 PA O.O.R.D. LEXIS 286.

[13] O’Brien v. Phila. Housing Auth., Dkt. No. AP 2018-1722, 2018 PA O.O.R.D. LEXIS 1447.

[14] Haring v. Pennridge School District, OOR Dkt. AP 2021-0979, 2021 PA O.O.R.D. LEXIS 1302.

[15] Pa. Dep’t of Conversation and Natural Resources (DCNR) v. Office of Open Records, 1 A.3d 929 (Pa. Commw. Ct. 2010)

[16] O’Brien, supra.

[17] DCNR, supra.

[18] McClain v. Governor’s Office of Admin., OOR Dkt. AP 2019-0857, 2019 PA O.O.R.D. LEXIS 658.

[19] Boyd v. Pa. Dep’t of Corr.,No. 206 C.D. 2012, 2013 Pa. Commw. Unpub. LEXIS 275 (Pa. Commw. Ct. 2013).

[20] Towne v. Pittsburgh Water and Sewer Auth., OOR Dkt. AP 2021-0292, 2021 PA O.O.R.D. LEXIS 307.

[21] Darr v. PHEAA, OOR Dkt. AP 2019-0088, 2019 PA O.O.R.D. LEXIS 260.

[22] Nicholl and Charles Jones LLC v. Montoursville Area School Dist., OOR Dkt. AP 2023-2914, 2024 PA O.O.R.D. LEXIS 373; but compare Butler Area Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173 (Pa. Commw. Ct. 2017 (finding that a property tax assessment list should be provided to the requester because it was statutorily public and documented only the ownership of real property, rather than identifying facts about an individual, such as their home address).

[23] Coladonato v. Antrim Township, OOR Dkt. AP 2022-2662, 2023 PA O.O.R.D. LEXIS 193.

[24] Haverstick v. Dep’t of Revenue, OOR Dkt. AP 2023-2908, 2024 PA O.O.R.D. LEXIS 412.

[25] Ciavaglia v Bucks County, OOR Dkt. AP 2019-1064, 2019 PA O.O.R.D. LEXIS 894.

[26] Borough of W. Easton v. Mezzacappa, 116 A.3d 1190, 2015 Pa. Commw. Unpub. LEXIS 402 (Pa. Commw. Ct. 2015).

[27] Rose v. Westmoreland County, OOR Dkt. AP 2024-0391, 2024 PA O.O.R.D. LEXIS 586.

[28] Grove v. Constable John-Walter Weiser, OOR Dkt. AP 2018-0457, 2018 PA O.O.R.D. LEXIS 523.

[29] State Emples. Ret. Sys. v. Fultz, 107 A.3d 860 (Pa. Commw. 2015).

[30] Fultz, supra.

[31] See Handerhan v. Mt. Carmel Borough, OOR Dkt AP 2010-0728, 2010 PA O.O.R.D. LEXIS 725.

[32] Tanner v. Elkland Borough, OOR Dkt. AP 2015-0433, 2015 PA O.O.R.D. LEXIS 430.

[33] Mezzacappa v. Colonial Intermediate Unit 20, OOR Dkt. AP 2019-0880, 2019 PA O.O.R.D. LEXIS 768.

[34] Paige v. Philadelphia Commission on Human Relations, OOR Dkt. AP 2019-1983, 2019 PA O.O.R.D. LEXIS 2198.

[35] Sorenson v. Northwestern Lehigh School District, OOR Dkt. AP 2013-2028, 2013 PA O.O.R.D. LEXIS 1226.

[36] Bridy v. City of Shamokin, OOR Dkt. AP 2013-0430; 2013 PA O.O.R.D. LEXIS 300.

[37] Edgell v. Pennridge Sch. Dist., OOR Dkt. AP 2013-1242, 2013 PA O.O.R.D. LEXIS 721.

[38] Mezzacappa, supra.

[39] Pa. State Police v. McGill, 83 A.3d 476 (Pa. Commw. Ct. 2013).

[40] See Stein v. Office of Open Records, No. 1236 C.D. 2009, 2010 Pa. Commw. Unpub. LEXIS 313 (Pa. Commw. Ct. May 19, 2010) (first names of corrections officers are not public records as such information falls within the personal security exemption set forth in Section 708(b)(l)(ii) of the RTKL).

[41] Sorenson, supra.

[42] Coladonato, supra.

[43] For example, see Governor’s Office of Admin. v. Purcell, 35 A.3d 811, (Pa. Commw. Ct. 2010) (finding, based on the evidence presented, that disclosure of the full dates of birth of state employees would result in substantial and demonstrable risk to the employees’ personal security due to the risk of identity theft).

[44] Murray v. Pa. Dep’t of Health, OOR Dkt. AP 2017-0461 2017 PA O.O.R.D. LEXIS 1361.

[45] Bauder and the Pittsburgh Tribune Review v. City of Pittsburgh, OOR Dkt. AP 2017-0499, 2017 PA O.O.R.D. LEXIS 1002.

[46] George v. Penn Twp., OOR Dkt. AP 2023-2719, 2023 PA O.O.R.D. LEXIS 2886.

The 2020 presidential election will go down in history as one of Pennsylvania’s most memorable. The impact on Right-to-Know Law (RTKL) requests was swift, prolonged, and intense. Requesters sought records related to mail-in ballots, voting machines, and security policies. More than three years later, election related RTKL appeals still remain above pre-November 2020 levels.

With the 2024 Presidential election just eight months away, seeing where the dust has settled after this wave of requests and appeals helps give some insight into the current status of a number of important legal issues. A brief assessment of the relevant stats and data reveals a number of unresolved legal issues still exist regarding the public nature of election-related records. With the potential for Pennsylvania to be the focal point of yet another election, the impact of such uncertainty may intensify the stress on various agencies, the Office of Open Records (OOR) and the courts with a renewed resurgence of RTKL requests and appeals both leading up to and following the election.  

Explosion in election appeals

From 2009 to 2019, approximately 35 Final Determinations issued by the OOR dealt with election related RTKL requests; from 2020 to the present, the figure jumped to 241.[1]

Since counties run elections, they were most impacted by the marked increase of RTKL requests. From January 2020 to January 2022, the OOR saw a 77% increase (369 to 653) in appeals of county records requests.[2] While the overall number declined between 2022 and 2023 (653 to 604), it is still a 64 percent increase as compared to before the 2020 election.

The increase in appeals tells a fraction of the story. A 2018 study found that less than three percent of RTKL requests are appealed.[3] Thus, the increase at the county level in RTKL requests is likely much more dramatic.

Various types of records requested

Commonly requested types of election records include:

• Cast Vote Records (CVR) which display a voter’s choice in each race, without their name attached. This was the most requested, and individual counties chose to respond in different ways.[4]
• Absentee or mail-in ballots or envelopes. The option of voting by mail without claiming absence debuted in 2020 in Pennsylvania, and several RTKL appeals dealt with requestors’ desire to access those ballots and envelopes. The name envelopes, which include a voter’s signature, and the ballots, which offer no identifying information, cannot be obtained in tandem.[5]
• Voting machine security and instructions records also garnered increased attention in the aftermath of the 2020 election.[6]
• Surveillance recordings. Some requesters requested video recordings of ballot drop boxes or poll workers counting ballots.[7]
• Election policies and procedures.  Many requests centered around how elections are run from beginning to end.[8]
• Emails between public employees. A common focus for RTKL request for all issues, requesters wanted to see how election officials communicated about certain issues and what was discussed.[9]

Dozens of appeals in courts still pending

A much higher than average percentage of election-rated decisions made by the OOR were appealed to the Court of Common Pleas. On average, less than five percent of OOR decisions are appealed; among election-related appeals, that figure is closer to 14 percent.

The appeals to courts come from both requesters (43%) and agencies (57%); common issues at this level include those related to security footage,[10] mail-in ballots,[11] and cast vote records.[12]

Impact

What does all of this mean for the aftermath of the 2024 election?

First, a final, binding court decision on access to types of ballots remains outstanding.  While the Commonwealth Court’s decision released last week upholds the privacy of Cast Vote Records,[13] it remains unclear what information is actually included in the CVR.  This could still be interpreted as a big step to resolving the issue, absent an appeal to the Pennsylvania Supreme Court. Some appeals remain pending, including those for records related to security footage and mail-in ballots, among others.  

Second, another spike in requests and appeals will impact counties, agencies that oversee elections, as well as the OOR.  It is important for those agencies to proactively prepare operationally and fiscally for the very real likelihood of another significant spike in requests and appeals and how they plan to navigate such an increase in the timeframe confines of the RTKL.

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[1] Based on February 28, 2024 search of OOR’s database appeals with the words “election”, “ballot”, “voting”, or “vote”, in the description.  Any final determinations not related to elections were removed.

[2] The OOR’s database of appeals does not provide an automated count of county appeals by particular issue.  While this increase reflects all county appeals, including those not related to elections, it provides a representation of how a high-profile issue can lead to a spike in appeals.

[3] https://lbfc.legis.state.pa.us/Resources/Documents/Reports/610.pdf

[4] Example: 2022-2012

[5] Example: 2022-1975

[6] Example: 2022-2667

[7] Example: 2022-2678

[8] Example: 2020-2273

[9] Example: 2024-0054

[10] Example: 2023-0603

[11] Example: 2023-2043

[12] Example: 2021-2603

[13] https://www.pacourts.us/assets/opinions/Commonwealth/out/57CD23_3-4-24.pdf?cb=1

The Office of Open Records is proud to present its 2023 Annual Report.

Read it here.

Highlights from this year’s annual report include:

• Another record-breaking year, with 3,147 appeals filed with the Office of Open Records, a 14 percent increase in three years and a 41 percent increase in five years.
• Of those, 2,366 appeals involved local agencies and 670 involved state agencies.
• Top 10 issues most raised on appeal and addressed by OOR.
• Ten examples of records accessed via the RTKL.
• Top OOR accomplishments in 2023.
• 90 mediations to resolve appeals and 49 training sessions conducted across the state.

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