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 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”).

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.

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.

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

We highlight on these pages many decisions that describe the right to obtain records under the RTK Law, but it remains helpful to be aware of enumerated exclusions in the RTK Law that prevent one from obtaining certain documents.

For example, in the recent Final Determination by the Office of Open Records in the matter of Chabot v. Pennsylvania Department of Labor and Industry, Dkt. No. AP 2018-1920 (OOR, Nov. 21, 2018), a request was made for records about a non-criminal investigation.  In addition to providing a helpful explanation regarding the purpose of the RTK Law,  procedures to appeal from the agency on whom a demand is made, and the burden of proof on the government to explain why the documents requested should not be provided, the decision explains several statutory exceptions to the requirement for a government agency to disclose documents.  They include, for example:

  • Investigative materials. Section 708(b)(17)(ii).
  • Records that include the identity of a confidential source. Section 708(b)(17)(iii).
  • Records that includes information made confidential by law. Section 708(b)(17)(iv).
  • Records that, for example, would:
    • disclose the start or progress or result of an agency investigation, except for the imposition of a fine or a penalty, or revocation or modification of a license or permit, or an executed settlement agreement–unless the court determines the settlement to be confidential;
    • deprive a person of the right to an impartial adjudication;
    • cause an unwarranted invasion of privacy, or
    • endanger the life or physical safety of an individual. Section 708(b)(17)(vi).

Another recent decision of the OOR denied a request for police department scheduling policies and police officer timesheets based on an exception that does not require the production of government records when to do so would likely jeopardize public safety. See Gonzalez v. Elizabethtown Police Department, Dkt. No. 2018-1636 (OOR, Nov. 20, 2018).

But compare: Arthur v. Pennsylvania Turnpike Commission, Dkt. No. 2018-1448 (OOR, Oct. 10, 2018) (Agency did not prove that the redacted information requested was proprietary information or a trade secret, and thus, the request for records was granted.)

Supplement: A list of the 30 or so statutory exceptions is provided on the OOR website.

It remains useful to compare how the PA RTK Law compares to similar laws in other jurisdictions.  Freedom of Information Act (FOIA) statutes in the State of Delaware, and also the federal counterpart statute do not generally allow access to criminal investigations.  FOIA is the name given to many RTK laws in other states.

Brief Overview

The premise of both the federal and Delaware state FOIA laws is that public business should be conducted in an open and public manner, and thus members of the public are generally entitled to records from public entities. However, that entitlement is not absolute. Both federal and state laws have enumerated exemptions to what constitutes a public record. Neither statute, however, provides anything akin to the PA Office of Open Records.

  •  Under Delaware FOIA laws, criminal files and records pertaining to potential litigation and are not subject to disclosure.

21 Del. C. § 10002(l)[1] of the Delaware FOIA law lists several types of records that are not deemed, for purposes of this statute, “public records,” including:

(4) Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.

(9) Any records pertaining to pending or potential litigation which are not records of any court.

21 Del. C. § 10002(l) (emphasis added). In summary, FOIA prevents the disclosure of criminal files and criminal records, and any records pertaining to pending or potential litigation.

  • Criminal Files & Criminal Records

The privacy concerns of witnesses, informants, and defendants themselves prevent the disclosure of criminal records and criminal files through FOIA. Del. Op. Atty. Gen. 10-IB13 (Del.A.G.), 2010 WL 4154565.

[T]he criminal records exemption of section 10002 makes a distinction between “criminal files” and “criminal records.” While any person may obtain a copy of his/her criminal record, subject only to an agency’s authority to withhold certain information contained in the criminal record, “criminal files” are closed; there is no exception in the statute. . . . But other policy concerns expressed by the statute remain. Witnesses frequently speak to authorities on condition of anonymity, or at least with an expectation that their information will be held in confidence with law enforcement. That expectation does not suddenly expire with the completion of the criminal case. In addition, criminal suspects are often arrested by law enforcement when they are not performing at their best. The embarrassment of their behavior often causes them to plead guilty rather than expose their misbehavior to public scrutiny. Thus, the privacy concerns of witnesses, informants and defendants themselves are each implicated by a reading of the statute that would except closed criminal files from the FOIA exemption for criminal files.

Id.

An arrest record is categorized as a criminal record and is exempt from disclosure. Although records relating to the recovery of a handgun, for example, is not clearly identifiable as a criminal record, it may be considered part of criminal file and at the very least, records such as witness statements would be exempted from disclosure for policy concerns. Even if all of the records relating to the recovery of a handgun are not deemed part of a criminal file, as explained below, the records fall within another exemption of the statute.

  • Pending or Potential Litigation

A litigant may not use FOIA to obtain information from the Delaware State Police to use in trial. Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **8-9 (Del. Super. Mar. 31, 2003). In Public Defender v. State Police, the Superior Court held the Public Defender’s Office[2] was not entitled to records from the State Police because “[w]hile the Public Defender’s clients mostly are Delaware citizens and while some of them might be especially curious about the state police training and methods, their interest in the materials is not related to the public’s right to know. Their legitimate interest concerns pending or potential litigation, which is exempt from the Act.” Id.

The Delaware Attorney General’s Office and Delaware courts have consistently held that “FOIA’s pending/potential litigation exemption is designed to maintain a level playing field: a party or potential party to litigation cannot use FOIA to obtain information in lieu of the rules of civil discovery. ‘Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.’” Del. Op. Atty. Gen. 06-ID21 (Del. A.G.), 2006 WL 3113705 (quoting Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003)); see also Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950 (“The exemption applies when [i]t is exclusively about litigators and litigants looking for materials that might help them in court.”) (internal citations omitted).

Requesting records from the State Police on behalf of a client to aid in litigating a case, is the exact purpose for which the Delaware Legislature forbade FOIA from being used. One cannot obtain records through FOIA when the sole purpose for obtaining them is to search for evidence that may assist in the course of litigation, even if the requested records do not constitute criminal files or criminal records.

  • Under federal laws, disclosure of investigation records would constitute an unwarranted invasion of person privacy and are therefore exempt from disclosure.

Similar to the Delaware statute, the federal FOIA exempts:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source

5 U.S.C. § 522(b)(A)(7). The United States Supreme Court has held that “as a categorical matter that a party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no ‘official information’ about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is ‘unwarranted.’” Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 780 (1989).  In other words, law enforcement records about a private citizen are not subject to disclosure under FOIA.

The ATF[3], by way of example, requires a lawyer to have a client verify his or her identity pursuant to 28 C.F.R. § 16.41(d) before the agency can process a request. If one’s client is the subject of the investigation for which one is seeking records. 28 C.F.R. § 16.41(d) states, in part, “[w]hen you make a request for access to records about yourself, you must verify your identity.” If one’s client is not the subject of the files sought, the law regards disclosure of law enforcement records as an invasion of privacy.

Footnotes:

[1] Copy of the Delaware FOIA statute is available at this link.

[2] The Court held that the Public Defender’s Office was not a citizen under FOIA and refused to recognize the Assistant Public Defender’s presence in her personal capacity reasoning that she admitted that “she was acting on behalf of the office of the Public Defender.” Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **9, 12 (Del. Super. Mar. 31, 2003).

[3] “ATF is a law enforcement agency in the United States’ Department of Justice that protects our communities.”  ATF, About the Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/.