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Commonwealth of Pennsylvania, Department of Labor and Industry v. Ronald Rudberg

December 8, 2011

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, PETITIONER
v.
RONALD RUDBERG, RESPONDENT



The opinion of the court was delivered by: Judge McCULLOUGH

Submitted: March 18, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE McCULLOUGH

The Department of Labor and Industry (Department) appeals from the September 20, 2010, order of the Office of Open Records (OOR), which directed the Department to produce employee performance review (EPR) records of unsuccessful applicants for the position of Vocational Rehabilitation Manager I, subject to redaction of personal information. We vacate and remand.

Ronald Rudberg (Requester) filed a request with the Department pursuant to the Right to Know Law (RTKL)*fn1 seeking employment interview records for the position of Vocational Rehabilitation Manager I. Requester sought, among other records, "all interviewee . Employee Performance Reviews (EPRs) .." (Reproduced Record (R.R.) at 2a.) The Department denied the request for the EPR records of those individuals that it did not hire for the position on the ground that they were exempt from disclosure pursuant to section 708(b)(7) of the RTKL, (R.R. at 4a), which provides as follows:

(b) EXCEPTIONS.-- .[T]he following are exempt from access by a requester under this act:

(7) The following records relating to an agency employee:

(ii) A performance rating or review.

(iv) The employment application of an individual who is not hired by the agency.

65 P.S. §67.708(b)(7) (emphasis added). *fn2

Requester appealed to OOR arguing that the records were not exempt under section 708(b)(7). (R.R. at 6a-7a.) After review, OOR granted Requester‟s appeal with regard to the EPRs of the unsuccessful applicants. Recognizing that an agency bears the burden of proving that a record is exempt from disclosure under the RTKL and that exemptions under the RTKL are to be narrowly construed, OOR reasoned that the Department failed to "provide sufficient legal or factual basis that the EPRs related "to an agency employee,‟ rather than merely applicants for employment.." (R.R. at 18a.) Accordingly, OOR reversed the Department‟s decision insofar as it failed to produce the EPRs and ordered it to provide Requester with all EPRs for unsuccessful job applicants, subject to redaction of personal identification information.*fn3 This appeal ensued.

On appeal to this Court,*fn4 the Department first contends that OOR raised the issue of whether the EPRs for the unsuccessful applicants relate to an agency employee and thus are exempt from disclosure under 708(b)(7)(ii) of the RTKL sua sponte. The Department asserts that, although Requester‟s appeal to OOR cited section 708(b)(7) of the RTKL, Requester did not specifically reference section 708(b)(7)(ii) of the RTKL, which provides that performance reviews relating to an agency employee are exempt from disclosure. Therefore, the Department asserts that it did not have notice or an obligation to present evidence on the issue. We disagree.

Section 903(2) of the RTKL, 65 P.S. §67.903(2), provides that an agency is required to state specific reasons for denying a RTKL request and to include a citation of supporting legal authority. Here, in denying Requester‟s RTKL request, the Department cited ...


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