November 20, 2014
Commonwealth of Pennsylvania, Governor's Office of Administration, Petitioner
Pennsylvanians for Union Reform, Inc., Respondent
Argued September 11, 2014
[Copyrighted Material Omitted]
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.
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) 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) 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. 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.
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, 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. 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. OA appealed to this Court.
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.
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 dependent information.
65 P.S. § 67.708(b)(6)(i).
Importantly, this Court in an en banc decision held in Raffle :
[T]here [is] no constitutional right to privacy in a home address and that the personal security exemption does not preclude the release of government employees' home addresses on the reasons advanced in the affidavit [attesting that disclosure of home address information increases the risk of social engineering attacks and identity theft]. . . . Moreover,
that rationale is equally applicable to the release of an employee's county of residence if it is contained in a public record.
Id. at 1109 (emphasis added).
In the instant action, there was no record evidence before the OOR demonstrating that the requested records fall within an exemption. In its Position Statement, OA requested " that the OOR permit OA to incorporate herein by reference the briefs and affidavits completed by Commonwealth agencies as directly interested third parties in OOR Docket No. AP 2013-1830, PFUR v. SERS." Reproduced Record (R.R.) at 3701a. However, notwithstanding that the February 26, 2014 OOR Final Determination mentions OA's request, the OOR did not rely on those briefs and affidavits, nor did the OOR make them part of the record. OA had the burden to provide evidence of the reasonable likelihood of a substantial and demonstrable risk caused by the disclosure of the employees' counties of residence. OA was invited to submit evidence and could have done so; however, it chose to rely on its request that the OOR " incorporate . . . by reference" evidence submitted in an entirely separate matter. Id. This, the OOR was not required to do. Because the OOR did not make the referenced briefs or affidavits a part of the record, there was no record evidence demonstrating that an exemption is applicable in the instant matter.
Notwithstanding, OA did include copies of those documents in its reproduced record to this Court in the instant matter. The documents include numerous Commonwealth agency job descriptions, employee confidentiality requests pertaining to address disclosure, and affidavits from various agency representatives expressing concerns about disclosure of employee home addresses. Even if we were to consider that evidence, it would not change the outcome. As described by OA, the briefs and affidavits supported its justification for the refusal to provide home addresses -- not counties of residence. Revealing counties of residence alone, without addresses, provides less specific geographic information, and thus, the impact of such disclosures alone must
be particularly addressed by the agency denying disclosure. OA did not meet its burden of presenting specific evidence establishing " the likelihood of a demonstrable risk to the individuals involved posed by [the] particular disclosure" of counties of residence. Schaefer, 45 A.3d at 1158 (emphasis added).
OA contends that the OOR erred when it failed to address OA's argument that county of residence is a " component part" of an address, and thus, where an address is legitimately exempted, county of residence must also be exempted. OA Br. at 13. OA acknowledges that " county of residence is not mentioned in many standard definitions of home address," however, it relies on a dictionary definition of address and the U.S. Postal Service definition of " complete address" to extrapolate that county of residence must be a component of home address. OA Br. at 13, 14. Further, OA makes the unsupported conclusory assertion that " where address is exempted
by OA, street, post office box, city and ZIP code are exempted. It does not make logical or practical sense to deny state and ZIP code, and then provide data about a geographical unit that is more, if not similarly, specific." OA Br. at 14-15. We disagree.
The RTKL does not define the term " address." " The Statutory Construction Act [of 1972, 1 Pa.C.S. § § 1501-1991] provides that in interpreting a statute it is incumbent that the reviewing court endeavor to ascertain the intent of the Legislature and that when the words of a statute are clear and free of ambiguity we must interpret those words by their plain meaning." Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 703 (Pa. 2009); see also People United to Save Homes v. Dep't of Envtl. Prot., 789 A.2d 319, 328 (Pa. Cmwlth. 2001) (" if a statutory provision is not ambiguous, the legislative intent should be effectuated by according the words their plain and ordinary meaning" ). Merriam-Webster's Collegiate Dictionary (11th ed. 2004) defines " address" as " 5 a: a place where a person or organization may be communicated with[; ] b: directions for delivery on the outside of an object (as a letter or package)[; ] c: the designation of place of delivery placed between the heading and salutation on a business letter[.]" Id. at 15. In ordinary use, such " directions for delivery" or " designation of place of delivery placed between the heading and salutation" do not generally include county of residence. Id. OA acknowledges as much in its brief: " Though county of residence is seldom used in daily domestic postal activity, it is a piece of geographic information which could contribute to a complete address." OA Br. at 13 (emphasis added). Following OA's logic, any additional piece of geographic information such as " the Susquehanna Valley," or " the Midstate," or even " two doors down from the Denny's Restaurant," could aid in identifying a location; however, OA could not credibly contend that such information is part of an address. Interpreting the word address by its plain and ordinary meaning, we conclude that county of residence is not a " component part" of a home address.
Even if we were to accept OA's argument that county of residence is a " component part" of a home address, it is indisputable that county of residence is not the same as a home address, and thus, disclosure is not exempted by Section 708(b) of the RTKL pertaining specifically to home addresses. Further, it is without question that revealing county of residence does not provide the same detailed information as a home address. The disclosure of that alleged " component part" alone does not have the same potential impact as publishing of the whole. As recognized in Raffle, there is no right to privacy in a home address and " that rationale is equally applicable to the release of an employee's county of residence if it is contained in a public record." Id. at 1109. Although we acknowledge that there may be situations in which an exemption could preclude revealing an employee's county of residence, it must be based upon the conclusion that disclosing the county of residence itself, " 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) Thus, we decline to hold that county of residence is a part of a
home address under the RTKL. We rule that where a home address is properly withheld from disclosure, the separate request for the employee's county of residence where the requirements of an exception under Section 708(b) of the RTKL have not been met, the county of residence must, as a matter of law, be revealed.
Next, OA contends that disclosure of Commonwealth employees' counties of residence undermines home address redaction. In its Position Statement, OA described the issue as " whether providing county of residence is inordinately likely to lead to the successful discernment of home address where home address is otherwise exempt." R.R. at 3702a. Relying on " statistical science" evidence, OA contends that " county of residence generally narrows, to an unacceptable degree, the search for an individual about who other identifying information is known." OA Br. at 15. We disagree.
This Court has held:
That properly disclosed public records may enable the request[e]r or others, by doing further research, to learn information that is protected from disclosure is not generally a sufficient basis to refuse disclosure. . . . There may be some cases in which the evidence establishes that disclosure of public records which are not facially exempt will necessarily or so easily lead to disclosure of protected information that production of one is tantamount to production of the other, or that disclosure of the one is highly likely to cause the very harm the exemption is designed to prevent . . . .
Hous. Auth. of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 216 (Pa. Cmwlth. 2012) (emphasis added).
Moreover, we take judicial notice of the fact that Pennsylvania counties vary in size from approximately 130 square miles to approximately 1,230 square miles, with population in those counties ranging
from 5,010 to 1,536,471. Given these facts, we do not consider the disclosure of a Commonwealth employee's county of residence " tantamount to production" of the employee's home address, " or that disclosure of the [county] is highly likely to cause the very harm the exemption is designed to prevent[.]" Id. (emphasis added). Even if OA could meet the significant burden of demonstrating that the disclosure of the Commonwealth employees' complete addresses was reasonably likely to result in harm, it does not necessarily follow that disclosure of the employees' counties of residence, alone, would carry with it a high likelihood of the same harm, given the lack of location specificity. In the absence of such evidence, we conclude that OA has not met its burden.
Finally, Requester has asked this Court to award attorneys' fees pursuant to Section 1304 of the RTKL, 65 P.S. § 67.1304, because it contends the OA's appeal is frivolous and its denial of records was based upon an unreasonable interpretation of the RTKL. Section 1304 of the RTKL governs the award of court costs and attorneys' fees. That section provides:
(a) Reversal of agency determination.-- If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
(b) Sanctions for frivolous requests or appeals.-- The court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court
finds that the legal challenge under this chapter was frivolous.
(c) Other sanctions.-- Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.
65 P.S. § 67.1304. Although we disagree with OA's legal position in the instant matter, we recognize the legitimacy of OA's general concerns regarding the personal security of the affected individuals and note its reasonable attempt to satisfy the RTKL's disclosure exemptions given the lack of clearly established law as it pertains to requests solely for employees' counties of residence where disclosure of the employees' home addresses were denied. Accordingly, we do not find an award of attorneys' fees to be warranted.
For all of the above reasons, the OOR's Final Determination is affirmed.
AND NOW, this 20th day of November, 2014, the Office of Open Records' February 26, 2014 Final Determination is affirmed.
COHN JUBELIRER, JUDGE
I respectfully dissent. Rather than affirm the Office of Open Records' (OOR) Final Determination, I believe this matter should be remanded to the OOR to examine, as requested by the Governor's Office of Administration (OA), the evidence submitted by numerous Commonwealth agencies in a case involving the same Requester, Pennsylvanians for Union Reform v. State Employees Retirement System (PFUR v. SERS), OOR Dkt. AP 2013-1830.
The Majority holds, for the first time, that county of residence is not a component of home address and, therefore, OA may only withhold Commonwealth employees' county of residence where it separately demonstrates that disclosure of county of residence, by itself, satisfies the requirements of an exception under Section 708(b) of the Right-to-Know Law (RTKL). Thus, under the rule adopted by the Majority, OA would have to demonstrate that disclosure of county of residence, alone, " 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), in order to properly withhold county of residence information. However, the OOR's decision to ignore OA's request for the OOR to take notice of the evidence submitted by OA in the similar case of PFUR v. SERS denies OA and Commonwealth employees the opportunity to demonstrate that access to county of residence information should be withheld.
The important purpose of the RTKL, promoting transparency in government, does not come without cost and the reality is that there can be a costly burden imposed on Commonwealth agencies in complying with broad RTKL requests. For example, in PFUR v. SERS, nearly twenty separate Commonwealth agencies submitted over 3,500 pages of briefs, affidavits, and job descriptions in support of the RTKL personal security exemption. However, there is no reason that these justifiable costs need to be made greater than necessary. In its response to the OOR's invitation to submit information to support
its position in this matter, instead of attempting to compile new materials for nearly 10,000 employees, OA respectfully requested " that the OOR permit OA to incorporate herein by reference the briefs and affidavits completed by the Commonwealth agencies as directly interested third parties" in PFUR v. SERS. (OA's Response at 2, R.R. at 3701a.) As support for this request, OA informed the OOR that " [t]he significant effort which was undertaken to create [the] materials [for PFUR v. SERS] in a timely fashion cannot easily be duplicated by the agencies, nor should it have to be where . . . the materials are recent and responsive as they stand." (OA's Response at 2, R.R. at 3701a.) Because considerable taxpayer funds were already expended as a result of the time and effort needed to support RTKL exceptions in PFUR v. SERS, efficiency should dictate that the OOR at least examine the materials already compiled for that case. The Majority's opinion does not consider the taxpayer savings that would be accomplished through this--particularly where no statute or rule requires this unnecessary duplication of effort.
While the Majority finds that the materials from PFUR v. SERS are largely irrelevant, I believe that their relevance has increased following the unappealed determination by the OA Open Records Officer that the home address information for 9,444 employees in this matter is exempt from disclosure pursuant to the personal security exception. Because there has already been a conclusion that a substantial and demonstrable personal security risk exists if OA employees' home address information is released, these materials have acquired additional relevance for proving whether county of residence information for these Commonwealth employees should also be exempt from disclosure.
The Majority assumes that the evidence submitted for PFUR v. SERS would not change the outcome of this case because those materials were submitted to provide justification for withholding home address rather than county of residence information and, thus, that there is no need to remand this matter to the OOR. In support of this assumption, the Majority points out that " this Court may exercise functions of a fact-finder, and has the discretion to rely upon the record created below or to create its own." Commonwealth, Governor's Office of Administration v. Pennsylvanians for Union Reform, Inc., A.3d, (Pa. Cmwlth., No. 498 C.D. 2014, filed November 20, 2014), slip op. at 7 n.12 (citation omitted). While the Majority is correct that this Court may exercise the functions of a fact-finder, Department of Labor & Industry v. Heltzel, 90 A.3d 823, 828 (Pa. Cmwlth. 2014), this Court has not actually exercised this function by accepting the materials from PFUR v. SERS into the record and then making findings of fact and conclusions of law based upon an examination of this evidence. Therefore, in the absence of this Court engaging in actual fact finding, the Majority's assumption that the evidence from PFUR v. SERS would not change the outcome in this case is unsupported. I believe that either this Court or the OOR should make findings based on a review of the materials from PFUR v. SERS to determine whether disclosure is reasonably likely to result in a substantial and demonstrable personal security risk to any of the affected Commonwealth employees if their county of residence information is released.
The reason I believe a fact finder should make findings based on the materials from PFUR v. SERS is that a cursory review illustrates real and demonstrable security risks that certain Commonwealth employees face each day at work. In one affidavit submitted for PFUR v. SERS, the affiant asserts that at a state hospital run by the Department of Public Welfare (DPW), " [a] resident with a history of sexual abuse has told various employees that he will come to their homes and rape their children." (R.R. at 104a.) In another affidavit, submitted by the Bureau of State Licensing of the DPW, the affiant asserts that one " employee was beaten while executing a closure of a home" while a second " employee was held at knife point for several hours while conducting an investigation of a home operating without a license by the two illegal operators." (R.R. at 114a.) Whether these extreme personal security risks might support exempting the release of county of residence information where, as here, a determination has already been made that their home address information is exempt from disclosure, should be determined based on fact not assumption. In a third affidavit, Michael D. Klopotoski, the Eastern Regional Deputy Secretary of the Pennsylvania Department of Corrections, asserts that he is subject to retaliation and harassment and that " retaliation takes the form of threats, harassment, assaults, or physical harm, or the filing of fraudulent liens or other financially damaging documents against me." (R.R. at 2394a (emphasis added).) I note that liens are filed at the county level, and Mr. Klopotoski has a rather unique last name. Thus, whether releasing his county of residence could lead to a retaliatory lien being filed against him, should likewise be determined.
These are just three examples from the thousands of pages of materials that OA requests the OOR incorporate by reference. My analysis of this issue is not specific to the particular request before us, nor this Requester's motivation for requesting county of residence information, which may be perceived as laudable; instead, because the principle we apply here will apply in future cases, and because a requester does not have to provide a reason for requesting information, our job is to apply the statutory protection the legislature has created to protect Commonwealth employees from harm. Even though an examination of materials from PFUR v. SERS may not result in a different determination, I believe that the Majority errs by neither remanding the matter to the OOR to examine the materials nor, in the alternative, accepting the materials into the record for this Court to examine, as fact-finder, so that the statutory standard can be applied.
Moreover, I believe the Majority's attempt to analogize the proceedings of the OOR to those of a court does not take into account the RTKL's unique statutory scheme. Under Section 1102(b) of the RTKL, 65 P.S. § 67.1102(b), the OOR is permitted to adopt procedures for RTKL appeals. Section 1102(b) provides that:
(1) If an appeal is resolved [by the OOR] without a hearing, 1 Pa. Code [§ § 31.1-35.251] (relating to general rules of administrative practice and procedure) do not apply except to the extent that the agency has adopted these chapters in its regulations or rules . . . .
(2) If a hearing is held, 1 Pa. Code [§ § 31.1-35.251] shall apply unless the agency has adopted regulations, policies or procedures to the contrary under this subsection.
(3) In the absence of a regulation, policy or procedure governing appeals under this chapter, the [OOR] shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the dispute.
65 P.S. § 67.1102(b). In interpreting Section 1102(b), this Court held that " a court reviewing an appeal from the OOR . . . should consider the manner of proceeding most consistent with justice, fairness, and expeditious resolution. For example, should a hearing be necessary for proper review, a court may consider that a hearing before . . . OOR . . . is not attended with the same formality as in court." Bowling v. Office of Open Records, 990 A.2d 813, 823 (Pa. Cmwlth. 2010) (emphasis added), aff'd, 621 Pa. 133, 75 A.3d 453 (Pa. 2013). Because typical administrative practice and procedure is often inapplicable to the OOR, 65 P.S. § 67.1102(b)(1), and the OOR is not subject to the same formalities as courts, an examination by the OOR of the evidence from PFUR v. SERS would be most consistent with a just, fair, and expeditious resolution of this matter. Bowling, 990 A.2d at 823.
For the foregoing reasons, I would vacate the OOR's Final Determination and remand this matter for it to take notice of, and consider in this matter, the evidence submitted in PFUR v. SERS.