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Commonwealth v. Pennsylvanians for Union Reform, Inc.

Commonwealth Court of Pennsylvania

November 20, 2014

Commonwealth of Pennsylvania, Governor's Office of Administration, Petitioner
v.
Pennsylvanians for Union Reform, Inc., Respondent

Argued September 11, 2014

Page 62

[Copyrighted Material Omitted]

Page 63

For Petitioner: Patrick O. Kerwin, Deputy Chief Counsel, Crystal D. Fox, Senior Counsel, Harrisburg.

For Respondent: Craig J. Staudenmaier, Harrisburg.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 64

ANNE E. COVEY, Judge

The Governor's Office of Administration (OA) petitions this Court for review of the Office of Open Records' (OOR) February 26, 2014 Final Determination (Final Determination) granting Pennsylvanians For Union Reform Inc.'s (Requester) appeal and directing OA to provide the counties of residence for 9,444 Commonwealth employees. There are four issues for this Court's review: (1) whether Commonwealth employees' counties of residence is a " component part" of home address under the Right to Know Law (RTKL)[1] and thereby are also exempt from disclosure where home address has been exempted; (2) whether disclosure of Commonwealth employees' counties of residence pursuant to the RTKL undermines the redaction of their home addresses; (3) whether Section 614 of The Administrative Code of 1929 (Administrative Code)[2] requires disclosure of Commonwealth employees' counties of residence; and, (4) whether Requester is entitled to attorneys' fees. After review, we affirm.

On November 25, 2013, Requester filed a RTKL request seeking, inter alia, the address and county of residence of all Commonwealth employees whose information was ordered to be released in the matter of Campbell v. Office of Open Records, OOR Dkt. AP 2013-1371.[3] On January 3, 2014, OA issued a Final Response which granted in part and denied in part the request, providing the home addresses and counties of residence for 5,994 of the 15,438 employees. OA refused to disclose the home addresses or county of residence for the remaining 9,444 employees. Rather than provide a basis for its refusal, OA merely explained that home address disclosure was currently being litigated before the OOR and the Commonwealth Court. On January 9, 2014, OA issued a Supplement to its Final Response (Supplemental Response) which restated OA's decision, and added numerous statutory references in support of its refusal to disclose home addresses and counties of residence.[4]

Page 65

On January 27, 2014, Requester filed a timely appeal with the OOR challenging only OA's refusal to disclose the subject employees' counties of residence and withdrawing its request for all other information. By January 28, 2014 letter, the parties were invited to submit information and argument to the OOR. On February 14, 2014, OA submitted its position statement (Position Statement) and, rather than include documentary evidence, requested the OOR to take official notice of the evidence it had furnished to support redaction of certain Commonwealth employee home addresses in the matter of Pennsylvanians for Union Reform v. State Employees Retirement System, OOR Dkt. AP 2013-1830. OA also asserted in its Position Statement that it had properly denied disclosure because county of residence is a part of an address (which had properly been denied), that revealing county of residence would divulge too much information where address disclosure had been denied,[5] and that Section 614 of the Administrative Code did not require such disclosure.

On February 18, 2014, OA sent an email notice to affected employees advising them of Requester's RTKL request and the pending appeal before the OOR, and notifying them that they could ask to participate.[6] On February 26, 2014, the OOR, without holding a hearing, issued its Final Determination granting Requester's appeal and directing OA to disclose the subject employees' counties of residence.[7] OA appealed to this Court.[8]

Page 66

The RTKL was designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. The current version of the RTKL, passed in 2008, changed the method of access to an individual's personal information and set forth new criteria to determine whether information is protected from disclosure. Under the current RTKL, a record in the possession of a Commonwealth agency or local agency is presumed to be a public record unless[:] (1) the record is exempt under Section 708 [65 P.S. § 67.708]; (2) the record is protected by a privilege; or (3) the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), entitled 'Exceptions for public records,' places the burden on the agency to prove by a preponderance of the evidence that a particular record is exempt from public access.[9]

Office of the Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. 2013) (citations omitted).

Section 708(b)(1)(ii) of the RTKL provides an exception to the disclosure requirements where a record disclosure " would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual." 65 P.S. § 67.708(b)(1)(ii). " To establish this exception, an agency must show: (1) a reasonable likelihood of (2) substantial and demonstrable risk to an individual's security if the information sought is not protected. We defined substantial and demonstrable as actual or real and apparent." Carey v. Dep't of Corr., 61 A.3d 367, 373 (Pa. Cmwlth. 2013) (citations and quotation marks omitted). " More than mere conjecture is needed." Id. (quoting Governor's Office of Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011)). Further, " [g]eneral, broad-sweeping conclusions will not be a substitute for actual evidence of the likelihood of a demonstrable risk to the individuals involved posed by a particular disclosure." Delaware Cnty. v. Schaefer, 45 A.3d 1149, 1158 (Pa. Cmwlth. 2012). Section 708(b) of the RTKL, in pertinent part, also exempts the home address of a law enforcement officer from disclosure, as well as:

(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 ...

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