Submitted September 5, 2014
M. Catherine Nolan, Harrisburg, for petitioner.
Kenneth W. Fultz, Pro se.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
RENÉ E COHN JUBELIRER, Judge
State Employees' Retirement System (SERS) petitions for review of the Final Determination of the Office of Open Records (OOR) that granted, in part, and denied, in part, Kenneth W. Fultz's (Requester) appeal from SERS' partial denial of his Right-to-Know Law (RTKL) Request (Request) for the names and home addresses of certain retirees or their beneficiaries. On appeal, SERS argues that the OOR erred by directing it to provide Requester with: (1) the home addresses of individuals or beneficiaries who reside at the same address as retired law enforcement officers or judges; (2) the home addresses of retired SERS members, who have attained superannuation age, or their beneficiaries, who are over the age of 60; and (3) the first names of law enforcement officers. Upon review, we affirm, in part, and reverse, in part.
On or about September 12, 2013, Requester submitted the Request to SERS pursuant to the RTKL seeking the
[n]ames and addresses of all retirees who retired, received an annuity and/or withdrew their contributions to their retirement account, returned to state service for a second period of employment of two years or more and then retired a second time. Also, the names and addresses of beneficiaries of the above if the retiree has passed away. Information can be omitted for any returning retiree who repaid all funds received during the initial retirement. Requested for the years of 1998 through 2013.
(Request, R.R. at 7a.) After extending the response period pursuant to Section 902 of the RTKL, SERS provided the name and addresses of 158 retirees. (SERS' Response, R.R. at 10a; Affidavit of Joseph A. Torta, Director of the Office of Member Services of SERS (Torta Affidavit) ¶ 12, R.R. at 82a.) SERS denied Requester access, pursuant to the exception set forth
in Section 708(b)(6)(i)(C) of the RTKL, to the names and addresses of: (1) all retired law enforcement officers and all retired judges; and (2) " all beneficiaries if they or the retiree has served as a law enforcement officer or judge." (SERS' Response, R.R. at 10a.) SERS denied Requester access, pursuant to the personal security exception set forth in Section 708(b)(1)(ii) of the RTKL, to the names and addresses of: (1) all retirees " who have attained superannuation age and all beneficiaries who are at least 60 years old or those for whom [SERS did] not know their age" ; and (2) all retirees who directly notified SERS " of the existence of specific threats to their personal safety and security" pursuant to the personal security exception set forth in Section 708(b)(1)(ii). (SERS' Response, R.R. at 10a-11a.)
Requester filed an appeal with the OOR. (OOR Appeal, R.R. at 1a-6a.) The OOR invited the parties to supplement the record. In response, SERS explained that it denied access, pursuant to the personal security exception, to the names and home addresses of retirees who retired after reaching superannuation age because individuals at or over the age of 60 are statistically more likely to suffer some degree of cognitive impairment; therefore, the release of this information would likely cause these individuals " to suffer financial fraud, financial exploitation, financial abuse or theft." (SERS' OOR Response at 3, 9, R.R. at 34a, 40a.) SERS contended that: (1) " [f]inancial abuse and financial exploitation of older people is a widely recognized problem with broad financial, legal and policy implications" ; and (2) " [s]ome older people are vulnerable to financial fraud, financial exploitation and financial abuse." (SERS' OOR Response at 4-9, R.R. at 35a-40a.) In support of this contention, SERS attached the sworn Affidavits of: (1) Jason Karlawish, M.D., " a tenured professor of medicine, medical ethics and
health policy at the University of Pennsylvania, Perelman School of Medicine, specializing in Alzheimer's disease and other cognitive disorders," (Karlawish Affidavit ¶ 1, R.R. at 47a); and (2) J. Kenneth Brubaker, M.D., " Medical Director of the Commonwealth of Pennsylvania, Department of Aging[,] since 2010," (Brubaker Affidavit ¶ 1, R.R. at 53a). SERS also explained that disclosing the home addresses of retirees who have reached superannuation age would be a breach of its fiduciary duty. (SERS' OOR Response at 11, R.R. at 42a.) Finally, SERS asserted that it correctly denied access to the home addresses of retired law enforcement officers, judges, and their beneficiaries under the express exception set forth in Section 708(b)(6)(i)(C) of the RTKL. (SERS' OOR Response at 14, R.R. at 45a.)
Requester submitted a reply to SERS' OOR Response challenging SERS' contention that it properly denied access to the requested home addresses pursuant to the personal security exception because of a potential risk of financial fraud, exploitation, or abuse. (Requester's Reply to SERS' OOR Response, R.R. at 65a-74a.) Requester contended that SERS failed to submit any real evidence to support its denial pursuant to the personal security exception. (Requester's Reply to SERS' OOR Response at 3, R.R. at 67a.) Referring to the Affidavits of Dr. Karlawish and Dr. Brubaker, Requester asserted that denying access to the home addresses " cannot be justified on a generic opinion as to a potential risk to just one or two class members out of over 1,500 class members." (Requester's Reply to SERS' OOR Response at 2, R.R. at 66a.) Requester also cited to statistics purporting to show that because individuals continue to work beyond the age of 59, SERS' assertions that individuals over the age of 59 are likely to suffer cognitive impairment is contrary to societal norms. (Requester's Reply to SERS' OOR Response at 3-10, R.R. at 67a-74a.)
After reviewing SERS' OOR Response, the OOR advised SERS that it required additional information in the form of documentary evidence and affidavits to support its reasons for withholding the requested home addresses. (Letter from OOR to SERS and Requester (December 12, 2013), R.R. at 76a-77a.) The OOR stated that it required " all factual allegations be supported by a statement made under penalty of perjury by a person with actual knowledge." (Letter from OOR to SERS and Requester (December 12, 2013) at 1, R.R. at 76a.) The OOR explained that " [g]iven that this appeal involves claims of personal security issues, it is incumbent upon SERS to provide as much detailed information to support its position." (Letter from OOR to SERS and Requester (December 12, 2013) at 2, R.R. at 77a.)
In response, SERS submitted the sworn Affidavit of Joseph A. Torta, Director of the SERS' ...