A recent decision by the PA Office of Open Records is notable because of its reliance on the right to privacy contained in the Pennsylvania Constitution to prevent the requesting party from obtaining records that might otherwise be obtainable based on the Right to Know Law.  See Feliciano v. Philadelphia District Attorney’s Office, PA OOR, Docket No. AP 2019-0275 (April 1, 2019).

Brief Background:

This Final Determination involved a request under the PA RTKL for information related to a former Assistant District Attorney in Philadelphia.  The D.A.’s office denied the request that sought personnel records.  Upon appeal, the Office of Open Records (OOR) granted the appeal in part and denied it in part.

Key Takeaways:

·     The most noteworthy part of this opinion is the recognition based on the Pennsylvania State Constitution that the right to privacy trumps the Pennsylvania Right to Know Law in certain instances.  Specifically, the Pennsylvania State Constitution, although it does not specifically use the word “privacy” in the section cited, has been interpreted by the Pennsylvania Supreme Court to protect a right to privacy for personal data and to prevent the production of what would otherwise be public records that would be produced under the Pennsylvania PA RTKL.  See Pa. Const. Art. I, § 1.

·     For example, the Pennsylvania Supreme Court has ruled that the constitutional right to privacy protects the disclosure of personal phone numbers and home addresses, as well as social security numbers of state employees.  Generally, the court requires a balancing test to balance the right to privacy for one’s personal information with the public interest in disclosure.  See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

·     The OOR also explained that the RTKL is not superseded by the Pennsylvania Inspection of Employment Records Law (“IERL”).  The IERL addresses the right of employees to certain information in their personnel file held by an employer.  That law does not bar disclosure under the RTKL.

·     Section 708(b)(7) of the RTKL does exempt from disclosure certain records regarding a state employee, such as performance ratings or reviews and written criticisms of an employee, as well as information relating to discharge–with the exception of the final action of an agency that results in demotion or discharge.  See 65 P.S. §§ 67. 708(b)(7) (vi) – (viii).

·     This final determination also recognizes that Section 708(b)(6) of the RTKL exempts personal information such as home phone numbers and personal email addresses and other confidential personal identification.  This statutory protection overlaps some of the constitutional privacy protections.

·     The Pennsylvania Supreme Court did not expressly define all of the potential types of “personal information” subject to the balancing test that protects certain types of information–but has recognized specific examples of personal data for which privacy concerns outweigh the public interest, such as the right not to disclose personal telephone numbers, social security numbers, and home addresses.