Francis Pileggi, co-editor of this blog, recently accepted an offer to be the Managing Partner of the new Delaware office of the Lewis Brisbois firm, which has over 1,500 lawyers, in over 40 practice areas of the law, in over 50 offices. I’m very excited to share this exciting next chapter in my professional career.

My new contact information is:

Lewis Brisbois, 500 Delaware Ave., Suite 720, Wilmington, Delaware 19801

francis.pileggi@lewisbrisbois.com

(office) 302-985-6002 and (cell) 610-457-0407

UPDATE: The esteemed Professor Bainbridge kindly linked to this post on his widely-read blog.

Email communications among Council Members and the Borough Manager of Lewistown were required to be produced, pursuant to a recent decision from the Office of Open Records in the matter styled Maguire v. Lewistown Borough, OOR Docket No. AP 2020-0260 (April 20, 2020).

Basic Facts

The Final Determination of the OOR in this matter followed an appeal from the denial of a request to the Borough for emails between and among the Borough Manager and two Council Members for a sixty-one day period of time. Also requested, but denied in this appeal, was a document regarding potential job eliminations.

Legal Ruling and Analysis

The decision begins with the public policy animating the Right to Know Law which includes empowering citizens to obtain access to official government information to promote transparency and to allow scrutiny of the actions of public officials. See Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). RTKL Section 708(a)(1) places the burden of proof on the public body to prove that the requested government record is exempt from public access.

A key issue in this matter was whether the request for emails satisfied the “sufficiently specific” requirement in Section 703. The Courts have established a three-part balancing test to determine if this requirement is satisfied. See Pa. Dept. of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015). First, the “transaction or activity” must be identified. Second, the requested scope must identify a discrete group of documents (e.g., type or recipient). Third, the timeframe should identify a finite period of time for which the records are sought.

Applying those factors to the present facts, the OOR determined that the short timeframe in this matter “rescued” the lack of subject matter referenced in the request, similar to the facts in Easton Area Sch. Dist. v. Baxter,  35 A.3d 1259, 1265 (Pa.Commw. Ct. 2012).

A second part of the request was denied in this appellate decision because it requested documents relating to strategy or negotiations for labor relations or collective bargaining which are exempt under RTKL Section 708(b)(8)(i).

A footnote on the last page of the decision notes that the Pennsylvania Supreme Court has suspended through April 30 deadlines related to court cases or judicial business. The OOR has a link on its website with commentary on how the shutdown due to the coronavirus and the Governor’s declaration of an emergency impacts requests under the RTKL and the duties of government agencies during this unprecedented crisis.

The OOR recently ordered the County of Delaware to produce data requested regarding a new county-wide property assessment, even though the preliminary valuations for purposes of determining the new property taxes were only a preliminary step in the process. In Marcavage v. County of Delaware, OOR Docket No.: AP 2020-0457 (March 30, 2020), the decision explains why the County’s arguments for refusing to provide the data were rejected.

For example, it did not fall within the exception for pre-decisional, deliberative matters. In addition, a robust discussion with copious citations in the footnotes provides insights into how the right of privacy applies to requests for the home addresses that are typically included with names of homeowners in the data available for county property assessments.

A recent Final Determination from the Office of Open Records (“OOR”) prohibited the disclosure of the names and addresses of licensees in response to a request for dog license records in Mercer County. In the matter of Bush v. Mercer County, OOR Dkt. No. AP 2019-2211 (Dec. 30, 2019), the decision addressing the titular issue provided citations to many appellate court decisions to support its conclusion that the right to privacy under the Pennsylvania Constitution, as interpreted by the Pennsylvania Supreme Court, prohibits the disclosure of certain private information in circumstances such as those involved in this case.

Why This Decision Remains Notable: This decision is noteworthy because it exemplifies the type of  personal licensee data that might not be accessible under the RTKL due to the state right to privacy. Many decisions highlighted on these pages have described the contours of this state privacy right.

Short Overview of Background Facts and Procedural History:

A request was made for dog license records that included the license number, the name of the dog and dog’s age, the breed, the owner’s name and address, as well as an email address of the owner. The county denied the request based on Section 705 of the RTKL which does not require an agency to create a record that does not exist, or compile, format or organize a record. The county also refused to produce the information requested based on the defense that disclosure could promote the theft of dogs.

Upon appeal to the OOR, the request was granted in part and denied in part. The OOR prohibited the disclosure of the names of the licensees and their home addressed. It also required that the dog license numbers be withheld, in part because based on the public data on the website of the county, if a dog license number was entered online, one could determine the name of the license holder.

Overview of Legal Principles Addressed:

The Final Determination of the OOR in this matter recounted the basics of the RTKL, and its doctrinal underpinning, including the presumption that all records in possession of a local agency are presumed public unless specifically exempt under the RTKL or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Section 708 of the RTKL places the burden of proof on the public body to demonstrate that a record is exempt.

Reasoning of the Decision:

The OOR determined that even though the information requested is not maintained in a single location, the county did not demonstrate that it is unable to produce at least some of the information in the database. Merely because a “custom query” is required, does not provide a sufficient basis to allow an agency to refuse to provide the requested information.

However, the OOR determined that the names and home addresses could be withheld based on the right to privacy under the Pennsylvania Constitution, that allows an agency to withhold certain types of personal information based on a balancing test. The Pennsylvania Supreme Court has determined that the request for personal information from public records may be exempt from disclosure based on a balancing test that weighs the interest of an individual and information on privacy, with the interest of the public in disclosure–and personal information may only be released when the public benefit outweighs the privacy interests. See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

The key legal principle explained by the Pennsylvania Supreme Court in the Pa. State Educ. Ass’n case recognizes that certain types of information, including home addresses, by their very nature implicate privacy concerns. Id. at 156-57. Telephone numbers and social security numbers have also been found by the Pennsylvania high court to come within this privacy right based on a balancing test. See also Chester Housing Authority v. Polaha, 173 A.3d 1240, 1252 (Pa. Commw. Ct. 2017) (holding that constitutional privacy protection applies when home addresses are requested, regardless of whether the names or identity of the resident is attached).

This ruling explained that the factors to consider in connection with a balancing test require an assessment of: whether the information is traditionally public; whether an individual has a cognizable interest in the status of the records; whether the record is personal; and whether an individual has a reasonable expectation of privacy in that information. See Butler Area School District v. Pennsylvanians for Union Reform, 172 A.3d 1173 (Pa. Commw. Ct. 2007).

The OOR applied three factors in their analysis of the balancing test. First, the right of privacy has been previously applied by appellate Pennsylvania decisions to the names of private individuals where the identity of the individual was submitted for the purpose of licensure, and where there is only a nominal public benefit in publication. Secondly, the OOR determined whether the information sought is sufficiently personal in nature, as compared to business information that is not constitutionally protected, but might be subject to other statutory protections from non-disclosure under the RTKL. See, e.g., Mission Pa., LLC v. McKelvey, 212 A.3d 119, 133 (Pa. Commw. Ct. 2019).

Finally, the last factor in the balancing test requires the OOR to examine whether an individual has a reasonable expectation of privacy in their name. In this case, that depends primarily upon the reason the agency possesses the information. The OOR concluded that a reasonable person could expect the information provided for the license to remain confidential. Slip op. at 8.

When explaining its reasoning in connection with the balancing test, the OOR observed that the question is whether the public benefit in releasing the requested dog license information is greater than the privacy rights of the owner. In this instance, the requestor did not articulate any public purpose or benefit for the release of the requested private information, whereas the Pennsylvania Supreme Court has stressed the importance of privacy in residential home addresses. See Murray v. Pa. Dep’t of Health, OOR Dkt. A.P. 2018-0461, 2017 Pa. O.O.R.D. LEXIS 1361.

Likewise, there was no argument made to support a compelling public interest or benefit in the disclosure of the names of dog owners, and therefore, the names of the dog owners were permitted to be withheld also.

Two recent Final Determinations of the OOR applied the Right to Privacy as a limitation on the Right to Know Law.

In Beatty v. Pennsylvania Department of Agriculture, OOR Dkt. No. AP 2019-2482 (Jan. 9, 2020), the Pennsylvania Constitutional Right to Privacy was applied to prevent a state agency from providing home addresses. See PA Const. Art. I, § 1: “All men are born 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 pursuing their own happiness.”

The Pennsylvania Supreme Court has interpreted Art. I, § 1 to protect certain information contained in public records from being disclosed, based on an analysis that includes a balancing test. On these pages we have highlighted several cases applying this right to privacy in prior posts.

Another recent application of this important right is found in a Final Determination styled as Deeter v. Dublin Water and Sewer Authority, OOR Dkt. No.: AP 2019-1880 (Dec. 11, 2019), in which the names and home addresses of customers of the authority were ordered to be redacted from data that was otherwise disclosable by the agency. This decision refers to Pennsylvania Supreme Court opinions and other rulings that explain the balancing test that is used under Art. I, § 1, to prevent disclosure of home addresses and related personal information. See Slip op. at 5-7.

A recent Final Determination from the Office of Open Records clarified the RTKL’s statutory exemption that allows a state agency to deny a request to produce records related to a noncriminal investigation.

In Aponte v. Pottstown School District, OOR Dkt. AP 2019-2055 (Dec. 30, 2019), the Requester sought records related to investigative complaints, findings and reports into alleged discrimination by the Requester against a named person.  The District denied the request and the Requester appealed.

Key Takeaways from this Decision:

  • This decision began its analysis with a review of the policy underpinning the RTKL and the burden on the state agency to establish why its satisfied its burden of proof to demonstrate that a particular public record requested is exempt.
  • Procedurally, the decision observed that an appeals officer in the OOR may conduct a hearing but also has the non-appealable discretion to decide not to request a hearing and to make a decision based on the evidence presented to it.
  • Section 708(b)(17) of the RTKL exempts from disclosure “a record of an agency relating to a noncriminal investigation, including complaints submitted to an agency and investigative material, notes, correspondence and reports, or a record that, if disclosed, would reveal an institution, progress and result of an agency investigation.” Slip op. at 4.
  • The decision also explains the requirements that must be met by an agency to successfully assert an exemption from production for noncriminal investigation materials.

The reasoning of the decision falls into two general categories: (1) The District established that it conducted a noncriminal investigation as part of its legislatively granted authority and that such an investigation was actually conducted; and (2) The District demonstrated that the records requested included those that were within the scope of the investigation conducted, although a final report was produced to the Requester

The Pennsylvania Commonwealth Court recently reversed an OOR decision based on a finding that the statutory exception under RTKL Section 708(b)(17)(i) applies to exempt from disclosure a non-criminal investigation, including the complaint submitted to the agency. In Pennsylvania Liquor Control Board v. Perretta, 2019 WL 6114465 (Pa. Cmwlth Ct., Nov. 18, 2019), the court, in an opinion by Judge Fizzano Cannon, held that an employee of the Pennsylvania Control Board (PLCB) was not entitled to a copy of the complaint allegedly filed by a particular individual, whom the Requester identified by name.

Issues Addressed:

On appeal, in which review is de novo, with a plenary scope of review, the court was called upon to determine whether the non-criminal investigation exemption applied.

OOR Ruling Reversed:

The OOR issued a final determination granting the Requester’s appeal from the denial of the PLCB to provide a copy of the complaint sought by the Requester. The position of the PLCB was that complaints submitted to an agency are exempt from access pursuant to the non-criminal investigation exemption in the RTKL.  The OOR relied on two court decisions that were distinguished in the opinion.

Important RTKL Principles Articulated by the Court:

Although not new, this decision provides an important overview of the RTKL and a reminder that the objective of the RTKL is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Id. at *4.

This opinion also provides a refresher on basic RTKL principles such as:

(1)       A record in the possession of a Commonwealth Agency shall be presumed to be a public record under RTKL Section 305(a).

(2)       The presumption shall not apply if the requested record is exempt under the RTKL, is exempt from disclosure under any other federal or state law, or is protected by a privilege.

(3)       The agency bears the burden of proving, by a preponderance of the evidence, that the record is exempt from disclosure under an enumerated exemption.

(4)       RTKL Section 708(b)(17)(i) exempts from disclosure records of an agency relating to a non-criminal investigation, including complaints.  This exemption is designed to encourage cooperation with investigations by persons who are requested to provide information.

Court’s Reasoning:

The court relied on affidavits provided by the PLCB that any complaints made to the agency are investigated. Based on those affidavits, the court explained that the requested records fall squarely within the exemption described in RTKL Section 708(b)(17)(i).

The court also explained that the burden of proof was satisfied by the submission of affidavits by the agency, because they established that it was “more likely than not” that a non-criminal investigation was conducted.

The United States Supreme Court, in McBurney v. Young, ruled that there is no federal constitutional right to public records, and the states have the discretion to limit access to public records to their own citizens.  This decision and its impact on the right to obtain public records was explored in a recent article:  Chad G. Marzen, “A constitutional right to public information,” available at https://ssrn.com/abstact=3472464

The article also reviews a handful of states that have a state constitutional provision providing a right to access public records, and discusses related issues.

There are some states, such as Delaware, that limit–by statute–access to public records to citizens of that state. The article suggests that greater transparency for governments would be promoted if there was a push for amendments to both the federal and state constitutions that enshrined a right to access public records.

A recent decision of the Office of Open Records (OOR) is noteworthy for the extensive analysis supporting its conclusion that the Pennsylvania Public Utility Commission (PUC) must produce a substantial number of the records requested regarding submissions to the PUC in connection with a pipeline. In Friedman v. Pennsylvania Public Utility Commission, OOR Dkt. No.: AP 2019-1324 (Oct. 10, 2019), the OOR rejected multiple arguments asserting that all of the information requested was within various exemptions under the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq.  This Final Determination is also notable for its grant of a request to participate by a party with a direct interest in the subject of the appeal.

Takeaways:

The most efficient way to highlight this 31-page decision of the OOR is to note the multiple arguments that were rejected in terms of exemptions that were claimed but were denied. This decision should be read by anyone seeking information under the RTKL from the PUC (which is subject to the jurisdiction of the OOR).

Among the exemptions that the PUC claimed were a basis to prohibit disclosure–but which in most instances were determined not to allow the PUC to withhold documents, include the following:

  • Section 708(b)(2) regarding disclosure that would threaten public safety.
  • Section 708(b)(3) relating to exemptions for disclosure that would endanger the safety of a building, public utility, infrastructure or information storage system.
  • Section 708(b)(3)(ii) refers to infrastructure and resources defined by the federal government in the National Infrastructure Protections Act.
  • Section 708(b)(3)(iii) allows exemptions that would expose infrastructure to vulnerability due to disclosure, including public utility systems, communications systems, water, sewage and gas systems.
  • Section 708(b)(11) exempts certain trade secrets or other confidential proprietary information.
  • Section 708(b)(17) exempts non-criminal investigative records.
  • Section 708(b)(17)(vi) provides an exemption for records that, if disclosed, would: (A) reveal the progress of an agency investigation; (B) deprive a person of the right to an impartial adjudication; (C) constitute an unwarranted invasion of privacy; (D) hinder the ability of an agency to secure an administrative sanction; and (E) endanger the life or physical safety of an individual

A recent decision from the Office of Open Records relied on the right to privacy in the Pennsylvania Constitution, as opposed to an exemption in the RTKL, as a basis to prevent the disclosure of certain personal information. In Petusky v. Girardville Area Municipal Authority, OOR Docket No. AP 2019-0931 (Aug. 26, 2019), the OOR relied not on an exemption in the RTKL, but on the right to privacy in the Pennsylvania Constitution as a basis to prevent the disclosure of the home address and related personal information of a board member of the municipal authority involved.

Brief Overview of Case:

The requester in this case made a request pursuant to the RTKL for records regarding sewer inspections. Although the Authority granted the request, it redacted certain personal information about a board member.  This appeal followed and the OOR granted in part and denied in part the appeal.

The challenged redactions involved the home address and other personal identification information related to the payments for sewer inspections that were performed by a member of the Authority’s board.

Important Legal Principles Recited:

This OOR decision recited several basic principles of the RTKL, such as the presumption that records in the possession of a local agency are presumed public unless specifically exempt by the RTKL, or other law, or protected by a privilege, judicial order or a decree. See 65 P.S. § 67.305.

Section 708 of the RTKL places the burden of proof on the public body to demonstrate a record is exempt.

Section 708(b)(6) of the RTKL exempts from disclosure certain “personal identification information” which includes all or part of a social security number, driver’s license number, personal financial information, home, cell or personal telephone numbers, personal email addresses, employee number or other confidential personal identification. See 65 P.S. § 67.708(b)(6)(i)(A).

Importantly, home addresses are not specifically exempt pursuant to Section 708(b)(6), but the OOR found in this ruling that home addresses are protected by the Pennsylvania Constitution’s right to privacy.

Right to Privacy:

The Pennsylvania Supreme Court held that an individual possesses a constitutional right to privacy in certain types of personal information. See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

When a request for records implicates personal information not expressly exempt from disclosure under the RTKL, the OOR must “balance the individual’s interest in informational privacy with the public’s interest in disclosure and may release the personal information only when the public benefit outweighs the privacy interest.” Id.

The Pennsylvania Supreme Court recognized that “certain types of information, including home addresses, by their very nature, implicate privacy concerns and require balancing. Id. at 156-157.

Conversely, however, that there is no right to privacy regarding addresses of businesses or commercial entities. See Butler v. Pennsylvanian for Union Reform, 172 A.3d 1173, 1184-85 (Pa. Commw. Ct. 2017) (“The constitutional right to informational privacy only inures to individuals”).