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Dep't of Conservation and Natural Resources, of the Commonwealth of Pennsylvania v. Office of Open Records

May 24, 2010

DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, OF THE COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT
OFFICE OF THE BUDGET, PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT
DEPARTMENT OF GENERAL SERVICES, PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT



The opinion of the court was delivered by: Judge Brobson

Argued: February 10, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. MCCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

I. INTRODUCTION

In these consolidated appeals,*fn1 three Commonwealth agencies-the Office of the Budget (Budget), the Department of Conservation and Natural Resources (DCNR), and the Department of General Services (DGS) (collectively, Agencies)-seek our review of separate but related decisions by the Office of Open Records (Open Records) pursuant to our statutory jurisdiction under the Right-to-Know Law (RTKL).*fn2

The records at issue are certified payroll records of third-party contractors who entered into contracts with the Commonwealth of Pennsylvania for public projects. The certified payroll records of these non-governmental employers contain information relating to each of the contractors' employees who worked on the particular public project, such as each employee's name, social security number, home address, hourly rate of pay, gross amount of wages earned, number of hours worked, amount deducted from gross pay for taxes and/or benefits, and net pay.*fn3 In response to RTKL requests for copies of these certified payroll records, the Agencies produced only redacted versions of the certified payrolls. The requesters challenged the Agencies' productions, and Open Records appeals officers directed the Agencies to release un-redacted copies of the certified payroll records.

Having reviewed the record in these consolidated appeals as a whole, and based on the findings of fact and conclusions of law set forth below, we reverse the final determinations of the Open Records appeals officers.

II. FACTS AND PROCEDURAL POSTURE

A. DCNR v. Office of Open Records (Gribbin)

On April 17, 2009, Thomas M. Gribbin, Sr. (Gribbin) requested*fn4 the release of all certified payroll records submitted by contractor Marion Hill Associates, Inc. and all subcontractors that had been working on a construction project identified in Gribbin's request as "Marina Dock Rehabilitation." DCNR responded by letter dated April 24, 2009, enclosing redacted copies of the requested records. DCNR redacted the Social Security numbers and home addresses of the contractors' employees, taking the position that this information was exempt under the RTKL. The letter further informed Gribbin that he had a right to appeal the response to Open Records because of the redactions.

On April 27, 2009, Gribbin sent a letter to Open Records, identical to his original request for documents. By a second letter to Open Records dated April 28, 2009, Gribbin indicated that he wished to appeal DCNR's April 24th decision to produce only redacted copies of the certified payroll records.*fn5 Open Records sent a letter to Gribbin and DCNR on May 1, 2009, describing the process Open Records uses to evaluate appeals, including proceedings before appeals officers, who, according to the letter, may or may not conduct a hearing on the appeal.

Open Records assigned an appeals officer to decide Gribbin's appeal. Following various e-mail correspondence, DCNR submitted a brief in support of its denial of the requested information. In its cover letter accompanying the brief, DCNR asked the appeals officer to conduct a hearing to allow DCNR to present evidence of the potential personal harm that would result if Open Records required DCNR to release the information. The appeals officer denied the request by e-mail dated May 28, 2009.

In its brief to Open Records, DCNR argued that home addresses do not constitute records under the RTKL because they are (1) exempt under Section 708(b)(1)(ii) of the RTKL*fn6 (records the disclosure of which "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to the personal security of an individual") and Section 708(b)(6)(i)(A)*fn7 (personal identification information . . . "[a] record containing all or part of a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number") and (2) they are exempt under the RTKL because the RTKL exempts any information that is exempt under federal or state law, regulation, or judicial decree (under the theory that an individual has a constitutional right to privacy). Around the time DCNR submitted its brief, the contractor that was performing the subject construction sought to intervene.

The Open Records appeals officer issued a Final Determination on June 1, 2009, granting Gribbin's open records appeal and permitting him access to the home addresses of the contractor's employees whose wage information was included on the certified payroll records. The appeals officer referred to earlier decisions of Open Records that had specifically held that addresses were not the subject of any exemption in the RTKL under Section 708(b)(6) because that provision, which defines "personal identification information," specifically exempts only the home addresses of individuals such as law enforcement officers and judges. Also, with regard to Section 708(b)(1) of the RTKL, the appeals officer indicated that DCNR did not meet its burden of proof regarding the substantial/demonstrable risk of harm.*fn8

DCNR and the intervenor third-party contractor appealed the Open Records appeals officer's Determination, raising the same issues noted above.

B. Budget v. Open Records (Malley/Leet/Sheet Metal Workers' Union)

On March 2, 2009, Shaun Leet, a representative of Sheet Metal Workers' Local 12 (Leet or Union, as appropriate), sent a RTKL request to the open records officer of Budget, requesting copies of the certified payroll of a roofing contractor-Burns & Scalo Roofing-that had performed services on a construction project for the Fred Rogers Center and Business Conference Center. The request also sought the same information for any roofing subcontractors. Budget's open records officer responded to Leet's request by letter dated March 12, 2009, indicating that Budget would use the RTKL's extension provision, whereby an agency may take longer than the usual statutory period to provide copies when redaction is necessary. By letter dated April 13, 2009, Budget's open records officer produced a compact disc (CD-Rom) with two .pdf files consisting of 180 pages of information responsive to Leet's request. Budget, however, redacted from its production the following information: (1) Social Security numbers, (2) signatures, (3) names, (4) addresses, and (5) W-4 tax exemption information.

By letter dated April 24, 2009, Kevin Malley (Malley) and Leet, on behalf of the Union, filed an appeal with Open Records, challenging the redaction by Budget of the contractors' employees' names. Open Records sent a letter to Budget, Malley, and Leet on April 27, 2009, describing the appeal process. Appeals officer Audrey Buglione sent Budget a letter dated April 29, 2009, alerting it to the fact that Open Records had issued earlier determinations in unrelated cases which held that names are not exempt information and directing him, among other things, to inform Open Records of the legal and factual basis for redacting the names.

Budget submitted to the appeals officer a memorandum of law with affidavits. Budget's first argument was that its redaction of names was appropriate. Budget apparently presumed that the Union was interested in knowing whether the contractor was paying prevailing wage*fn9 to the employees. Budget apparently reasoned that, by supplying the specific wage information about unidentified employees, the Union could determine whether the contractor was in compliance with the PWA. Budget further reasoned that if it included the names, then it would be releasing "personal financial information," which is exempted under the RTKL. The rationale apparently was that the information is not personal financial information unless a name is attached to it.

Budget also argued that the release of names and addresses violated an individual's right to privacy, and that this right, when balanced against the public interest recognized in the RTKL, weighed in favor of the individuals' right to privacy.

In her May 26, 2009 Final Determination, the Open Records appeals officer, relying upon several prior Open Records decisions, rejected Budget's arguments, particularly the argument that there is a right to privacy that outweighs the public's interest under the RTKL. Open Records, however, did not directly address the idea that, under the personal identification information exception, Section 708(b)(6)(i)(A) of the RTKL, which includes "personal financial information," the certified payroll documents are exempt-i.e., are not "public records." The appeals officer granted the appeal and directed Budget to produce the certified payroll records without the names redacted.

C. DGS v. Open Records (Agre)

Louis Agre (Agre), an attorney apparently representing the International Union of Operating Engineers, Local 542, sent a request under the RTKL via e-mail to DGS on April 2, 2009. Agre was seeking certified payroll information regarding a company called Out of Site Infrastructure, which apparently performed demolition, excavation, and other work at a construction site at Cheyney University.

DGS's open records officer responded with copies of certified payroll with names, addresses, Social Security numbers, and telephone numbers redacted.

He also noted the right to appeal the adequacy of DGS's response to Open Records. In its letter enclosing the redacted documents, DGS's open records officer reasoned that the redactions were appropriate because the information was protected from disclosure under the RTKL's personal financial information exemption (citing Section 708(b)(6)), under the RTKL's investigation exemption (citing Section 706(b)(17)), and under the right to privacy guaranteed by Article I, Sections 1 and 8 of the Pennsylvania Constitution.

Agre filed an appeal, which Open Records received on May 7, 2009, challenging DGS's redaction of names and addresses. Open Records responded, as it did in the other cases, with a letter acknowledging the appeal and indicating that an appeals officer may conduct a hearing. Open Records assigned Nathaniel J. Byerly, Esquire, as appeals officer for the appeal, and he requested that DGS provide support for its position that the redactions were appropriate. On May 27, 2009, Open Records received DGS's "Response." In this forty-eight page document, DGS commented that it strongly believed that Open Records' current legal analysis regarding the constitutional right to privacy was "deeply flawed." Specifically, DGS asserted that

(1) the redaction was appropriate in order to avoid the release of personal financial information; (2) the certified payrolls constitute investigatory documents because they are collected as part of an official inquiry into whether contractors are complying with the Prevailing Wage Act, and, consequently, they are exempt as non-criminal investigative records under Section 708(b)(17) of the RTKL; and (3) release of the names and addresses would violate a constitutional right to privacy. This response also included numerous documents, such as letters and affidavits from persons involved with such matters as law enforcement and technology, indicating problems that could arise through the disclosure of names and addresses.*fn10

The Open Records appeals officer issued his Final Determination on August 5, 2009, granting Agre's appeal and directing DGS to release the names and addresses that had been redacted from the certified payroll records. In general, the appeals officer indicated that he was relying upon Open Records' earlier decisions, rejecting statutory exemption and constitutional right to privacy arguments. Specifically, the appeals officer first addressed the personal financial information exemption argument. DGS had relied on a Pennsylvania Supreme Court decision, Sapp Roofing Company, Inc. v. Sheet Metal Workers' International Association, 552 Pa. 105, 713 A.2d 627 (1998) (plurality). In Sapp Roofing, our Supreme Court referred to a decision by the United States Court of Appeals for the Second Circuit, arising under the Federal Freedom of Information Act*fn11 (FOIA), which recognized the significant interest private employees have in avoiding the disclosure of their names and addresses when associated with financial information. The appeals officer, however, rejected DGS's argument, noting that Sapp Roofing was only a plurality opinion that did not expressly adopt the federal court's reasoning. Further, the appeals officer concluded that the term "personal financial information" could not be interpreted to include names and addresses.

The appeals officer also rejected DGS's argument that the certified payroll records involved non-criminal investigative information. The appeals officer noted that DGS offered no factual support detailing what is involved under the PWA to support the contention that the contractor submits the payroll documents as part of an investigation such as would render the documents non-criminal investigative records; however, the appeals officer never provided an opportunity for a hearing.

With regard to the issue of whether a constitutional right to privacy precludes release of names and addresses associated with the payroll records, the appeals officer concluded that no case law supported DGS's argument of such a right. Finally, the appeals officer rejected DGS's argument that Open Records should engage in a balancing test similar to one employed by federal entities under the FOIA, because FOIA has a specific provision requiring such balancing, whereas the RTKL contains no similar provision.

III. ISSUES FOR REVIEW/STANDARD OF REVIEW

The Agencies raise the following issues in their joint brief: (1) whether individuals have a constitutionally protected privacy interest in their names and addresses such that Open Records must balance that interest against the public interest in such information before Open Records may disclose such information; (2) whether the asserted privacy interest outweighs the public interest, where, as the Agencies contend here, the parties seeking the information have not asserted such public interest; and (3) whether the Agencies properly redacted the names and addresses from the disclosed certified payroll records under the personal security exemption and/or the personal financial information exemption in the RTKL, such that the otherwise relevant financial information they provided to the requesting parties satisfied the requirements of the RTKL.

This Court's review of final determinations by Open Records is governed by Section 1301(a) of the RTKL, which provides in pertinent part as follows:

Within 30 days of the mailing date of the final determination . a requester or the agency may file a petition for review or other document as might be required by rule of court with the Commonwealth Court. The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.

65 P.S. § 67.1301(a). In this Court's recent en banc decision in Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), we held that our standard of review of Open Records orders is as follows. "[A] reviewing court, in its appellate jurisdiction, independently reviews [Open Records'] orders and may substitute its own findings of fact for that of the agency." The Court opined that it could apply the broadest scope of review and look to information beyond the contents of the record to be reviewed as described in the RTKL-i.e., the request, the response, the requester's exceptions to the response, hearing transcript (if any), and the final determination. In other words, the Court can accept additional evidence and make its own factual findings.

IV. DISCUSSION

In this appeal, the Agencies and Open Records have largely focused on the question of whether a constitutional right to privacy protects from release the names and/or addresses of individuals identified on the certified payroll records. This Court, however, is guided by the notion that, whenever possible, a court should refrain from deciding constitutional issues when it can resolve a dispute on a statutory basis. Pottstown Sch. Dist. v. Hill School, 786 A.2d 312 (Pa. Cmwlth. 2001). Because we believe this appeal can be disposed of on statutory grounds, we will not address the parties' constitutional arguments.

A. The Certified Payroll Records Are "Records"

The parties do not dispute that the certified payroll records meet the definition of a "record" under the RTKL. The definition of "record" in the RTKL is broad enough to encompass a hard or electronically-stored document in an agency's possession, as well as information stored or maintained by an agency but that is not necessarily part of a specific document.*fn12 Here, we are dealing with "records" that are documents-certified payroll records submitted to the Agencies by third-party contractors. In each case, Budget, DGS, and DCNR produced the records in response to RTKL requests, but redacted certain identifying information about the contractors' employees. At issue in these appeals is the propriety of the Agencies' decision to redact the names and/or addresses of the contractors' employees in the copies of the certified payroll records provided to the requesters.

B. The Certified Payroll Records Include "Personal Financial Information"

The Agencies, collectively, have identified three statutory exemptions to support their decision to redact the certified payroll records in this case: (1) the personal security exemption-Section 708(b)(1)(ii) of the RTKL; (2) the personal financial information exemption-Section 708(b)(6)(i)(A) of the RTKL; and (3) the investigation exemption-Section 708(b)(17) of the RTKL. For the reasons that follow, we find that the certified payroll records include information that falls within the personal financial information exemption.*fn13

In context, the personal financial information exemption is a component part of a three-part broader exemption for "personal identification information." Section 708 of the RTKL provides, in relevant part:

(b) Exceptions.-Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act:

(6)(i) The following personal identification information:

(A) A record containing all or part of a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number.

(B) A spouse's name, marital status or beneficiary or dependent information.

(C) The home address of a law enforcement officer or judge.

(ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee.

Id. § 67.708(b)(6) (emphasis added). As written by the General Assembly, the "personal identification information" exemption is actually three separate exemptions set forth in clauses (A), (B), and (C) of Section 708(b)(6)(i) of the RTKL. The "personal financial information" exemption is found in clause (A).

The RTKL defines "personal financial information" to include: An individual's personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other ...


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