Argued December 10, 2014
[Copyrighted Material Omitted]
Appealed from No. AP 2013-1830. Office of Open Records.
Craig J. Staudenmaier, Harrisburg, for designated petitioner Pennsylvanians for Union Reform.
M. Catherine Nolan, Harrisburg, for designated respondent State Employees' Retirement System.
Richard E. Burridge and Joseph F. Canamucio, Harrisburg, for intervenor Pennsylvania State Education Association.
Lorie K. Dakessian, Philadelphia, for intervenor Pennsylvania Turnpike Commission.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
P. KEVIN BROBSON, JUDGE
In this appeal from a final determination of the Pennsylvania Office of Open Records (OOR) under the Right-to-Know Law (RTKL), we consider the merits of a request for names and home/mailing addresses in the possession of a Commonwealth entity, in this case the State Employees' Retirement System (SERS).
Both SERS and the requester, Pennsylvanians for Union Reform (PFUR), have appealed OOR's final determination. See Section 1301(a) of the RTKL, 65 P.S. § 67.1301(a) (granting right of appeal under RTKL to requester or agency). We consolidated the appeals and designated PFUR as the petitioner. The Pennsylvania Game Commission (Game Commission), the Pennsylvania Turnpike Commission (Turnpike Commission), and the Pennsylvania State Education Association (PSEA) are participating as intervenors in these consolidated appeals. For the reasons set forth below, we affirm in part, reverse in part, and remand to OOR for further proceedings.
In a request dated August 23, 2013, PFUR sought the following from SERS: " The names and associated home/mailing addresses of all active members, retired members (annuitants), and inactive vested members of SERS." (Reproduced Record (R.R.) 1a.) By letter dated August 30, 2013, SERS acknowledged receipt of PFUR's request and notified PFUR that it was extending the response period by an additional thirty days pursuant to Section 902(b) of the RTKL, 65 P.S. § 67.902(b). By letter dated August 30, 2013, PFUR informed SERS that it was narrowing its request to exclude information relating to employees of OOR, judges of the Commonwealth Court, and justices of the Pennsylvania Supreme Court. ( Id. 5a.) In that same letter, PFUR expressed concern about and disagreement with the possibility that SERS, either on its own or as a result of a directive issued by OOR, might attempt to notify individual SERS members of PFUR's request and invite objections by these " third parties." ( Id.)
In a letter dated September 30, 2013, SERS responded to PFUR's request, granting it in part and denying it in part. (R.R. 8a-10a.) SERS provided PFUR with the names and home addresses of 34,524 SERS members. SERS, however, refused to provide access to the home addresses of law enforcement officers and judges, citing the express exemption from access to this information set forth in Section 708(b)(6)(i)(C) of the RTKL, 65 P.S. § 67.708(b)(6)(i)(C). SERS also refused to provide the home addresses of SERS members who reside in the same household as law enforcement officers and judges, reasoning that the same exemption applies. SERS denied access to records of members seventeen years of age or younger, citing the exemption from access set forth in Section 708(b)(30) of the RTKL, 65 P.S. § 67.708(b)(30) (" A record identifying the name, home address or date of birth of a child 17 years of age or younger." ). SERS also denied access to information relating to retired members of SERS who have attained superannuation age, citing the RTKL's exemption from access under Section 708(b)(1)(ii), 65 P.S. § 67.708(b)(1)(ii), often referred to as the personal security exemption. Citing that same exemption, SERS denied access to
records relating to " approximately" 363 members who, either individually or through their employing agency, notified SERS of specific threats to their personal safety and security.
Again citing the personal security exemption, SERS denied access to the records of another 78,784 active SERS members employed by agencies under the jurisdiction of the Governor's Office of Administration, 3,804 active members employed by " quasi-independent agencies," and " approximately" 3,561 inactive, vested members of SERS. SERS claimed that it was unable to determine whether any members within these three groups had any particular security concerns and, therefore, invoked the exemption out of an abundance of caution. SERS reasoned:
As you know, a blanket application of the personal security exception is not valid and will not withstand judicial scrutiny. However, providing home addresses of all employees in those classes of members, excepting no one based on the personal security exception, " would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of" some of those individuals.
Id. 10a.) SERS, however, promised to continue its review of those records, anticipating that it may be able to grant in part and deny in part that portion of the request by the end of the year or sooner. ( Id.)
PFUR appealed the partial denial to OOR. Of the denials set forth in SERS' response letter, PFUR challenged the following:
(1) records of all law enforcement officers and family members within the same household;
(2) records of all judges (other than judges and justices of the Commonwealth Court and Pennsylvania Supreme Court, respectively) and family members within the same household; and
(3) records of SERS members seventeen years of age or younger.
PFUR contended that because it did not seek any information that would identify any of these individuals as law enforcement, judges and justices, or minors, SERS cannot claim that the records, on their face, are exempt. ( Id. 14a.)
PFUR also challenged SERS' use of the personal security exemption to support denial of the records of SERS members who have attained superannuation age. It also challenged SERS' invocation of the same exemption with respect to the 78,784 active SERS members employed by agencies under the jurisdiction of the Governor's Office of Administration, 3,804 active members employed by " quasi-independent agencies," and " approximately" 3,561 inactive, vested members of SERS. In the absence of specific evidence of an individual concern for personal security, PFUR contended that SERS improperly invoked the personal security exemption for these three classes of SERS members. ( Id. 14a-15a.)
In addition to these specific objections, PFUR raised several additional points in its appeal to OOR. It offered SERS additional time to respond to PFUR's request and, concomitantly, offered to grant an extension to OOR until December 31, 2013, to issue its final determination on PFUR's appeal. PFUR also noted that SERS'
response did not specifically mention members of SERS in the legislative branch. PFUR contended that the names and addresses of those members should be released. Responding to a request made by a union to PFUR through PFUR's web site, PFUR refused to exempt from its request members of unions as a class. Finally, PFUR offered to exempt from its request any individual who makes a request directly to PFUR, through a web link, to be exempted. ( Id. 15a.)
On October 2, 2013, OOR acknowledged receipt of PFUR's appeal. OOR gave PFUR and SERS seven days to submit information and legal argument in support of their respective positions. In addition, OOR advised SERS:
Agency Must Notify Third Parties: If records concern or pertain to an employee of the agency; constitute confidential or proprietary or trademarked records of a person or business entity; or are held by a contractor or vendor, the agency must notify such parties of this appeal immediately and provide proof of that notice to the OOR within 7 business days.
Such notice must be made by 1) providing a copy of all documents included with this letter; and 2) advising that interested persons may request to participate in this appeal ( see 65 P.S. § 67.1101(c)).
Id. 33a (emphasis in original).)
Thereafter, the parties and OOR engaged in several communications relating to procedural matters, mostly surrounding efforts to notify third parties of the PFUR appeal and an opportunity to participate. On October 7, 2013, OOR informed the parties that it had established an email address that SERS members could use to submit information to OOR regarding PFUR's appeal. OOR refused to give SERS additional time to notify its members of the appeal, absent good cause. OOR offered to provide SERS with a link to its request to participate form, which SERS could send to its members. OOR, however, did not require SERS to use the form. OOR gave SERS until October 11, 2013, to submit its evidence and legal argument, at which point the record would be closed and only reopened for good cause. OOR, however, also indicated that it would consider further extending the deadline in the future. ( Id. 42a.) OOR, over PFUR's objection, later granted SERS additional time until December 6, 2013, to provide notice to its members and agreed to keep the record open an additional ten business days. ( Id. 46a.)
OOR granted requests to participate submitted by thirty Commonwealth agencies, four public employee labor unions, and 3,851 individual SERS members who objected to the release of their information to PFUR. OOR referred to these individuals and entities as " Direct Interest Participants." After additional sparring between SERS and OOR over procedure and the
submission of additional information, evidence, and legal arguments by SERS, PFUR, and others permitted by OOR to participate, PFUR, in a reply to the third-party submissions, notified OOR on January 9, 2014, that it was withdrawing its appeal in part. According to PFUR, as a result of this partial withdrawal, it sought names and home/mailing addresses for only the following: (1) all individual members of SERS who notified OOR, directly or indirectly, that they objected to the disclosure of their information (" Individual Objectors" ); (2) all SERS members who have an out-of-state or foreign country home/mailing address; (3) all members of the Pennsylvania House of Representatives and Pennsylvania Senate; (4) individual members of SERS who, in the course of the proceeding before OOR, were identified as members of the State College and University Professional Association (SCUPA) and the Correctional Institutional Vocational Education Association (CIVEA), both of which are local association members of PSEA; (5) Governor Tom Corbett; (6) Lieutenant Governor Jim Cawley; and (7) Pennsylvania Treasurer Rob McCord. ( Id. 272a.)
OOR issued its final determination on the PFUR appeal on January 31, 2014. ( Id. 307a-31a.) With respect to the merits of PFUR's appeal, OOR granted the appeal in part and denied the appeal in part. OOR first rejected the argument, raised by several of the Direct Interest Participants, that there is a constitutional right to privacy in one's home address. OOR next rejected SERS' argument that its fiduciary duty to its members prevented SERS from releasing their names and home/mailing addresses. OOR also held that SERS failed to meet its burden of proving that the records of SERS members who had reached superannuation age are exempt from disclosure under the RTKL personal security exemption. In a footnote, OOR also rejected SERS' evidence as insufficient to support an exemption for the home addresses of SERS members who are law enforcement officers or judges. OOR explained:
While SERS submitted an affidavit attesting that it is able to identify which SERS members are law enforcement officers and judges, SERS's affidavit failed to identify which SERS members fell into these categories. Therefore, SERS has failed to meet its burden of proof that these exemptions shield the requested records from disclosure.
Id. 323a.) OOR also concluded that there was no evidence to support exemption of the home/mailing addresses for the Governor, Lieutenant Governor, Treasurer, Senators, Representatives, and SERS members with out-of-state or foreign country home/mailing addresses.
OOR rejected PSEA's contention that the RTKL violated the due process rights of CIVEA and SCUPA members, because it does not provide those members with notice and an opportunity to challenge release of their personal information before an agency or a court. Although OOR sustained PFUR's appeal with respect to SCUPA members, it analyzed the issue of whether members of CIVEA should be entitled to protection of their information under the personal security exemption (Section 708(b)(1) of the RTKL) or the exemption from release of home addresses of law enforcement officers (Section 708(b)(6)(i)(C) of the RTKL). The Department of Corrections (Corrections) submitted affidavits to support its contention that
employees of Corrections, identified members of CIVEA, are entitled to the protections of the personal ...