This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
In a Final Determination entered on June 4, 2021, the OOR found that a request for “the names, ranks, and badge numbers” of all SEPTA police officers who asked for time off on January 6, 2021, was protected from disclosure by the right to privacy established by the Pennsylvania Constitution. Michael Mellon and the Defender Association of Philadelphia v. Southeastern Pennsylvania Transportation Authority, Dkt. No. AP 2021-0465 (June 4, 2021).
Background and Facts: On January 15, 2021, Michael Mellon, Esq. and the Defender Association of Philadelphia (collectively “Requester”) submitted a Right to Know Law Request to the Southeastern Pennsylvania Transportation Authority (“SEPTA”) seeking “the names, ranks, and badge numbers” of all SEPTA police officers who asked for time off on January 6, 2021–the day a crowd entered the Capitol Building in Washington, D.C. Slip op. at 2, 6.
On March 1, 2021, after receiving several extensions of time to respond, SEPTA denied the Request on the ground that it relates to a noncriminal investigation and was protected by Section 708 (b)(17)(vi) of the RTKL. OOR invited both parties to supplement the record. On March 17, 2021, SEPTA submitted a position statement and a supporting affidavit and reasserted its grounds for denial. SEPTA characterized the requested information as an investigative record that, if disclosed, would constitute an unwarranted invasion of privacy. Additional supporting information and argument were submitted by the Requester and SEPTA on March 29, 2021 and June 1, 2021, respectively.
Analysis and Holding: OOR began by stating the objective of the RTKL, which is to “empower citizens by affording them access to information concerning the activities of their government.” Slip op. at 3 (quoting SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012)). By providing such access, RTKL makes it possible for citizens to scrutinize the actions of public officials and hold them accountable for those actions. Id. (quoting Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d, 75 A.3d 453 (Pa. 2013)).
Next, OOR eliminated the argument that the requested information relates to a noncriminal investigation. It observed that all of the requested information is available on routinely kept assignment sheets, which include information about all officers in SEPTA’s police force. Therefore, the information in question “exists in the normal course of business outside of whether a noncriminal investigation took place.” Slip op. at 4.
Finally, OOR reached the question of whether the requested information is protected by the right to privacy. Where requested information implicates personal information that is not expressly exempt from disclosure under the RTKL, OOR must balance the individual’s privacy interest in the information against any public benefit that would be gained from disclosure. OOR has previously found information similar to the “names, ranks, and badge numbers” sought by the Requester to be personal information. Moreover, Commonwealth Court precedent confirms that personal information about agency employees does not reveal anything significant about the workings of government agencies such as SEPTA. Slip op. at 5 (citing cases).
After reviewing the information at issue in this case in light of such prior authority, OOR found that the private interest of the SEPTA officers was greater than any public interest, and denied the Requester’s appeal.
Bottom Line: Mellon illuminates the difference between whether information about persons engaged in law enforcement is disclosable or protected. That difference lies in whether the requested information does, or does not, contribute to governmental accountability. Information about when particular agency employees wished to take personal time “invites only speculation as to the private actions of agency employees,” slip op. at 7, and tells us nothing about the operation of government or of an agency such as SEPTA.