Search results for: privacy

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.

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.

Any of the following personal information that may be made available to the lawyer or firm when browsing or navigating the site:

  • First and last name
  • Company, home, postal or other physical address
  • Other contact information, for example, telephone number, fax number, email address, and other similar information
  • Title or position in a company or

…

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On June 9, 2020, the Commonwealth Court handed down a decision in Pennsylvania Dep’t of Labor and Industry v. Chester Darlington, No. 1583 C.D. 2019 (Pa. Commw.).  The decision upheld the OOR’s Final Determination that documents relating to periodic, routine, and regular boiler inspections conducted pursuant to the Boiler and Unfired Pressure Vessel Law (“Boiler Law”) are not exempt from disclosure under Section 708 (b)(17) of the RTKL.

Background and Facts: 

On August 28, 2019, requester Chester Darlington submitted a RTKL request to the Pennsylvania Department of Labor and Industry (“DLI”) for any and all records, including investigation reports, pertaining to a June 15, 2016 incident that took place at the Veolia Energy Plant in Philadelphia.  DLI denied the request based on RTKL’s noncriminal investigation exemption.  During the Requester’s OOR appeal, DLI produced additional documents indicating that some of the boiler inspections at Veolia were regular boiler field inspections while others were “the direct result of a boiler and/or other regulated pressure vessel incident or a complaint” and that some of the boiler inspection records dated back to 1991.

OOR granted the Requester’s request in part.  It held that the Requester was entitled to records relating to the regular annual boiler inspections at Veolia, but not to the records relating to the 2016 incident, as records relating to that incident were a “noncriminal investigation” within the meaning of the RTKL.  Requester did not appeal from the determination relating to the 2016 incident, but DLI appealed from the portion of OOR’s Final Determination that ordered production of reports of regular boiler inspections.

Requester’s position on appeal was that OOR’s Final Determination was correct, because the Boiler Law, under which the regular boiler inspections were performed, distinguishes between “inspection” and “investigation” activities, which are treated differently under the RTKL.  DLI responded that both types of activities warrant protection to help ensure that they result in truthful answers, which might not be the case if information about them was publicly available.

Analysis and Holding:

The Darlington Court began its analysis by observing that an agency’s records are presumed to be public unless they fall within an exemption under the RTKL, and the agency has the burden of proving that an exemption applies.  The exemption at issue here was the “noncriminal investigation” exemption.

OOR determined that the routine boiler inspections were not “noncriminal investigations” for four reasons:  1)  the Boiler Law itself differentiates between “inspections” and “investigations”; 2) routine boiler inspections can be performed by non-Department personnel while investigations cannot be; 3) DLI’s affidavits do not provide sufficient details to justify treating the boiler inspections as “noncriminal investigations” under existing case law; and 4) the disclosure here does not raise the same public policy concerns present in Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Commw. 2010), which it treated as controlling authority.

The Darlington Court began its review of OOR’s Final Determination with the term “noncriminal investigation.” Although the RTKL does not define the words “noncriminal” or “investigation,”  common usage defines “noncriminal” as “investigations other than those criminal in nature,” and Commonwealth Court precedent defines “investigation” as “a systematic or searching inquiry, a detailed examination, or an official probe.”  Department of Health v. Office of Open Records, 4 A.3d at 811.

In light of these definitions, the Darlington Court turned to the Boiler Law, which clearly distinguishes between an “inspection” and an “investigation.” In particular, the Boiler Law distinguishes between a routine field inspection and an investigation of a particular boiler-related incident, and provides that an investigation must be conducted by DLI while an inspection may be performed by non-DLI personnel. These distinctions indicate that it is inappropriate to equate routine “inspections” with “investigations,” and the conclusory statements in DLI’s attestations failed to provide the Court with any reason to conclude otherwise.

Finally, the requested disclosures relating to regular boiler inspections in this case do not “raise the same concerns about witness confidentiality or harm to reputation” as did the request for nursing home documents that was at issue in the Department of Health case.  In particular, the nursing home documents raise patient privacy concerns which documents about routine boiler inspections do not.  Slip op. at 20.  OOR’s Final Determination was consequently affirmed.

Bottom Line: 

Darlington reminds us that it takes a statutory definition to equate such facially different terms as “inspection” and “investigation.”  OOR correctly determined that the Boiler Law, which defines DLI’s authority and obligations, shows that “inspections” and “investigations” are different things, and a conclusory attestation by an agency official does not change that.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

Within six weeks of the Pennsylvania Supreme Court’s decision in Easton Area School District v. Miller, 13 MAP 2019, 2020 Pa. LEXIS 3378 (“Easton”), the OOR was required to apply the Easton holding to a school bus video request.  That holding is the OOR’s Final Determination in Tricia Mezzacappa v. Colonial Intermediate Unit 20, Docket No. AP 2019-1922 (July 31, 2020).

Background and Facts:

On September 4, 2019, the Requester filed a RTKL Request directed to the Colonial Intermediate Unit 20 (“Unit”) for “bus video AM route only for the first day of school 2019-2020.”  The Unit denied the Request, contending that the video was exempt under the Family Education Rights and Privacy Act (“FERPA”).

The Requester appealed to OOR, which invited the parties to supplement the record. The Unit’s position statement included verified attestations by the Unit’s Open Records Officer, its Executive Director, and its Director of Technology that:  1) the requested videos contained personal details of minor students; 2) the Unit lacks the technology to redact the videos, and; 3) after performing a balancing test, the Unit determined that the requested record could not be released. With the agreement of all parties, OOR stayed the matter pending the Easton decision.

After Easton was handed down, OOR reopened the record to permit the parties to address the effect of that decision on the appeal.   The Unit submitted supplemental attestations by its Open Records and Director of Technology in support of the positions it had taken before the Easton decision.  The Requester submitted a statement saying that the Unit failed to demonstrate any expectation of privacy in the locations where a bus stops on public roads, and that redaction of the faces of students would be acceptable.

OOR Analysis and Holding:

The Unit advised OOR that it had conducted the necessary balancing test and determined that the public interest in disclosure far outweighed the privacy rights of the students and their families.  It argued that redaction was impossible, both because it lacked the capability to perform such redactions, and because it would have to redact, not only student information, but street signs, addresses, and any information that would show the actual route taken by the bus.

As per Easton, OOR rejected the argument that redaction of information that would show the bus route was necessary, because there is no expectation of privacy in any information that would reveal public information such as school bus routes.

OOR accepted the Unit’s attestation that it lacked the capability to redact the video itself.  It then looked to Section 1307(g) of the RTKL to resolve the redaction issue.  Section 1307(g) provides that “miscellaneous costs an agency necessarily incurs for complying with a request may be imposed upon the Requester so long as the costs are reasonable.“  Slip op. at 11.  Accordingly, the Unit was required  to provide the Requester with an estimate of reasonable costs necessary to have the video redacted with thirty (30) days of OOR’s Final Determination.  Upon payment of those costs, the Unit would be required to provide the redacted video. 

Bottom Line: 

An agency must provide an estimate of redaction costs to the Requester when video redaction is necessary under Easton and the agency lacks the ability to perform the necessary redactions.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond

On June 18, 2020, a divided Pennsylvania Supreme Court held that a school bus surveillance video was  not exempt from disclosure under the RTKL in Easton Area School District v. Rudy Miller and The Express Times, Docket No. 13 MAP 2019.  Although the Supreme Court majority agreed with Commonwealth Court that the video must be disclosed, it held that constitutional privacy concerns require application of a balancing test and redaction of recognizable images of students before disclosure. (For additional research on this topic, consider an OOR decision highlighted on these pages in a different case that also addressed issues that arise in connection with the RTKL when a bus video is requested.)

Original Issue: 

Did Commonwealth Court err as a matter of law in concluding that a school bus surveillance video was not exempt from disclosure under RTKL solely because it is an “education record” for purposes of Section 1232g of the federal Family Educational Rights and Privacy Act (“FERPA”)?  The Supreme Court answered this question in the negative.

Background:

A reporter for The Express Times requested a copy of a school bus security camera video from Easton Area School District (“Easton”) under the RKTL.  The video showed an elementary school teacher “roughly physically disciplin[ing] a child.” Slip op. at 2.  Easton denied the request pursuant to RTKL Subsection 708 (b)(1)(i), which exempts from disclosure public records that, if produced, would result in a loss of federal or state funds by an agency, a result dictated by FERPA’s protection from disclosure of a student’s “education record” without parental consent.

OOR found that the video was not an “education record” as defined by FERPA, and ordered its production.  Easton appealed to the Court of Common Pleas, which agreed with OOR and affirmed.

A unanimous Commonwealth Court panel affirmed the Court of Common Pleas, noting that a record does not need to relate solely to academic performance to be an “education record” under FERPA.  However, Commonwealth Court held that the record needed to be “directly related to a student” to be an “educational record,” and the video was only “tangentially related” to the students depicted.  This “directly related” determination is content-specific and must be made on a case-by-case basis.  Slip op. at 6.

The Majority Ruling: 

Before the Supreme Court, Easton argued that the video is an “education record” under FERPA because it contains “personally identifiable information,” about a student.  “Personally identifiable information” is defined as “information … that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”  Slip op. at 6.  Since, under FERPA, an education record may be disclosed only with parental consent, Easton maintained that the video is not a “public record” under the RTKL and is thus exempt from disclosure.

The Express Times argued that the video was a presumptively public record and that Easton failed to establish that the RTKL exempts the video from production.  It is the “policy or practice” of producing information such as that contained in the surveillance video that is proscribed by FERPA and would result in the loss of federal funding, and Easton never proved that it had such a practice or policy.

The majority agreed with Easton that the surveillance video is an “education record.” It also agreed with The Express Times that Easton had to prove, and failed to prove, that the RTKL’s exemption for records whose disclosure would cause it to lose federal funds applied.  But the majority was not satisfied with simply upholding Commonwealth Court, partly because it considered the video to contain “personally identifiable information” that directly relates to a student, not just to a teacher, and partly because it concluded that constitutional rights were implicated by the RKTL request at issue.

The majority observed that “personally identifiable information” is protected under the Pennsylvania Constitution, and may not be produced even if the record in which it appears is otherwise subject to production under the RKTL, Slip op. at 27 (citing Pennsylvania State Educational Ass’n v. Commonwealth, 637 Pa. 337, 148 A. 3d 142 (2016)).  Both FERPA and the RTKL provide that a record containing both disclosable information and protected information may be disclosed if the protected information is redacted before disclosure.

Thus, the majority held that an agency asked to disclose a public record under RTKL must first apply a constitutional balancing test “to determine whether the right of informational privacy outweighs the public’s interest in dissemination,” slip op. at 26-27.  Such considerations “may necessitate redaction of personal information not otherwise permissible under the RKTL.”  Slip op. at 27.   Consequently, Commonwealth Court was affirmed, with instructions orders to redact the students’ “personally identifiable information” before disclosure.

Concurring and Dissenting Opinions:

In an opinion which Justice Mundy joined, Chief Justice Saylor agreed that the video at issue is an “education record,” but otherwise disagreed with the majority’s ruling.  The majority’s rationale raises the possibility that every refusal to produce an “education record” would be sufficient to support an RTKL Subsection 708 (b)(1)(i) exemption because even a single refusal could be deemed sufficient to establish a “policy or practice” of refusal to produce, making the RTKL exclusionary language meaningless.  Thus, he would have reversed Commonwealth Court’s order.

In an opinion which Justice Wecht joined, Justice Baer agreed that Commonwealth Court should be affirmed, but concluded that the privacy issue was not before the Court.  He would not have required redaction or discussed any balancing test.

Bottom Line: 

The Supreme Court now requires agencies to apply a constitutional balancing test whenever a RTKL disclosure request directed to the agency implicates an individual’s privacy rights.  It remains to be seen whether the extra burden this ruling imposes on agencies will result in changes to the RTKL.

 

 

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.