Argued: November 15, 2018
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL
H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge
MICHAEL H. WOJCIK, JUDGE.
these cross-petitions for review, the Pennsylvania Liquor
Control Board (PLCB) and Lazlo Beh (Requester) seek review of
the Final Determination of the Office of Open Records (OOR)
granting in part and denying in part Requester's appeal
of the PLCB's partial denial of his request under the
Right-to- Know Law (RTKL) for liquor license applications and
renewals for various licensees submitted to the PLCB pursuant
to the Liquor Code. We affirm in part, and reverse in part.
August 1, 2017, Requester requested the following records
from the Open Records Officer (ORO) of the PLCB:
[T]he names of all individuals, officers, and managers
associated with each of the following License Names and LIDs,
the dates of original application and, if applicable,
renewal, for each, as well as copies of each such application
and renewal request:
2074 E. Clearfield Street, Inc., LID 50412;
Zheng Beer Distributor Inc., LID 54531;
Linda's Beer Distributor Inc., LID 56061;
C and H Beer Distributor Inc., LID 60267;
Phin Inc., LID 61561;
CSSO Distributors LLC, LID 69255;
L & C Clearfield Inc., LID 71013;
3V Beer Distributors Inc., LID 65791.
Record (R.R.) at 1a.
extending its time to respond, the PLCB granted the request
in part and denied it in part. The PLCB provided over 250
pages of documents, see R.R. at 213a-488a, but
redacted the following information as exempt from disclosure:
(1) home, cellular, or personal telephone numbers; (2) home
addresses; (3) personal email addresses; (4) sales tax
numbers; (5) bank account numbers; (6) social security
numbers; (7) personal financial information; (8) employee
numbers; and/or (9) other confidential personal
identification numbers. Id. at 5a-6a.
September 26, 2017, Requester appealed to OOR the PLCB's
redaction of home addresses, length of residency information,
and personal financial information from the records that were
provided. R.R. at 18a-20a. Requester contested the redaction
of home addresses and length of residency as exempt under
Section 708(b)(1)(ii) because "there has been no suggestion
that providing the home addresses . . . "would be
reasonably likely" to result in any physical harm or
other risk to the personal security of the individual's
whose name [is] included in [P]LCB's response."
Id. at 19a. Requester also contested the redaction
of the names/addresses of investors/sources of funds, the
amounts invested/contributed, the source from which the
monies were received, the private and commercial lenders, and
the amount of loans that were listed on the Individual
Financial Disclosure Affidavits, PLCB Form 1842 (IFDAs)
submitted to the PLCB with the applications under Section
708(b)(6)(i)(A). Id. at 19a-20a.
parties submitted position statements to OOR. The PLCB
asserted, inter alia, that Requester was improperly
attempting to modify his request on appeal to include home
addresses because they were not specifically asked for in the
initial request that was submitted. The PLCB also argued that
the disclosure of home addresses and length of residency also
violated the right to privacy guaranteed by Article 1,
Section 1 of the Pennsylvania Constitution. The PLCB further
claimed that the IFDAs were exempt from disclosure under
Section 708(b)(17)(ii) of the RTKL because they related to
the noncriminal investigation of a licensee's eligibility
for a license or a permit.
December 22, 2017, OOR issued a Final Determination granting
Requester's appeal in part and denying it in part. R.R.
at 149a-164a. Initially, OOR determined that Requester did
not modify his request on appeal by seeking the home
addresses or length of residency of the licensees. OOR noted
that while the request did not specifically ask for this
information, it sought copies of the applications and permit
renewals, which contain this information. OOR also found that
the PLCB did not present any evidence that Requester did not
seek this information in his request or that he waived his
right to challenge these redactions on appeal. Id.
OOR considered whether the disclosure of home addresses or
length of residency would threaten personal security to be
exempt under Section 708(b)(1)(ii). To establish the
exemption applies, the PLCB was required to show: (1) a
"reasonable likelihood" of (2) a "substantial
and demonstrable risk" to a person's security.
Delaware County v. Schaefer, 45 A.3d 1149 (Pa.
Cmwlth. 2012). "More than mere conjecture is
needed" to establish that the exemption applies.
Lutz v. City of Philadelphia, 6 A.3d 669, 676 (Pa.
Cmwlth. 2010). OOR found that neither the PLCB nor the
interested third parties presented evidence in support of the
argument that disclosure of the home addresses would threaten
personal security so they did not meet their burden that the
information is exempt under Section
708(b)(1)(ii). R.R. at 154a.
also determined that the PLCB did not demonstrate that
disclosure of home addresses or length of residency violates
the right to privacy guaranteed under Article 1, Section 1.
In Pennsylvania State Education Association v.
Commonwealth, 148 A.3d 142, 158 (Pa. 2016)
(PSEA), the Supreme Court held that an agency must
consider an individual's constitutional right to privacy
before granting access to information in a record under the
RTKL. A balancing test is applied, "weighing the privacy
interest and the extent to which [it] may be invaded against
the public interest that would result from disclosure."
Id. at 154-55 (citations omitted). The Court held
that "'certain types of information,' including
home addresses, by their very nature, implicate privacy
concerns and require balancing." Id. at 156-57
Reese v. Pennsylvanians for Union Reform, 173 A.3d
1143, 1150 (Pa. 2017), Pennsylvanians for Union Reform (PFUR)
sought a list of employees from the State Treasurer including
names, dates of birth, and voting residences. The State
Treasurer asserted that the PSEA balancing test
should be applied prior to disclosure while PFUR argued that
the information was accessible under Section 614(c) of the
Administrative Code of 1929 (Administrative Code),
which states that the requested information, with the
exception of voting residence, "shall be public
information." The Supreme Court held that the exemptions
in the RTKL did not apply because Section 614 of the
Administrative Code states that the information is public
information and Section 306 of the RTKL, 65 P.S.
§67.306, provides that "[n]othing in this act shall
supersede the public or nonpublic nature of a record or
document established in . . . State law . . . ."
Id. at 1158-59. Nevertheless, the Supreme Court held
that "the PSEA balancing test is applicable to
all government disclosures of personal information, including
those not mandated by the RTKL or another statute" as a
matter of constitutional law. Id. at 1159.
explained that, as in Reese, Section 473 of the
Liquor Code provides that "[t]he names and
addresses" of "[a]ny person having a pecuniary
interest in the conduct of business on licensed
premises" filed with the PLCB "shall be recorded by
[the PLCB] and made available to the public as a public
record." 47 P.S. §4-473. OOR also noted that
Section 403 of the Liquor Code requires that "if the
applicant is a natural person, his application must show that
he . . . has been a resident of this Commonwealth for at
least two years immediately preceding his application."
47 P.S. §4-403. The PLCB's Director stated that the
PLCB collects applicants' home addresses "for
purposes of investigating the reputation/backgrounds of those
individuals" and collects the residency information for
the sole purpose of determining whether an applicant meets
the statutory requirements. R.R. at 158a, 160a. Requester
asserted the "obvious public interest" in reviewing
the information upon which the PLCB grants licenses and
renewals and determining whether it has fulfilled its
statutory duty prior to awarding or renewing the licenses.
Id. at 158a.
concluded that "[w]ithout these addresses, the public
would be prevented from scrutinizing the actions of [the
PLCB] and restricted in its ability to hold [the PLCB]
accountable for its decision(s) and that "[t]he powerful
public interest in shedding light on [the PLCB]'s
administration of the Liquor Code outweighs the privacy
interest raised by [the PLCB] and intervenors." R.R. at
160a. OOR also concluded, "Because [the PLCB] has not
demonstrated how the privacy interests in [the length of
residency] outweighs the public's interest in ensuring
that the applicants meet the residency requirements under the
Liquor Code, the length of time the respective applicants
were residents of Pennsylvania is subject to public
OOR determined that, based on Director Peifer's
affidavit, the PLCB had demonstrated that the IFDAs relate to
its noncriminal investigations of applicants "pursuant
to its legislatively granted fact-finding powers to determine
whether the respective applicants meet the requirements of
the Liquor Code and [the PLCB's] regulations . . .
." R.R. at 163a. As a result, OOR found that the PLCB
properly determined that the IFDAs are exempt from disclosure
under Section 708(b)(17)(ii) of the RTKL. Id. Based
on the foregoing, OOR directed the PLCB to provide Requester
with the previously redacted information relating to
applicants' home addresses and lengths of residency in
Pennsylvania. The PLCB and Requester filed the instant
cross-appeals of OOR's Final Determination.
appeal, the PLCB first argues that OOR incorrectly applied
the PSEA constitutional balancing test and erred in
requiring the disclosure of home addresses and length of
residency information of applicants and/or licensees. The
PLCB claims that OOR erred in relying on Section 708(a) of
the RTKL to place the burden of proving, by a preponderance
of the evidence, that the right to privacy outweighs the
public benefit of disclosure under the constitutional
balancing test required by PSEA because under
PSEA and Reese, the constitutional right to
privacy in home addresses and other personal information
exists independently of the RTKL and the presumptions and
burdens of the RTKL do not apply. The PLCB contends, rather,
that under the constitutional balancing test, the requester
seeking protected information must demonstrate a significant
public interest warranting the infringement of those privacy
rights under Reese, 173 A.3d at 1159, and
PSEA, 148 A.3d at 151-158. The PLCB submits that the
requester must also show that there is no alternate
reasonable method of lesser intrusiveness to accomplish the
governmental purpose. See, e.g., Denoncourt v.
State Ethics Commission, 470 A.2d 945, 949 (Pa. 1983)
(plurality) ("[The] government's intrusion into a
person's private affairs is constitutionally justified
when the government interest is significant and there is no
alternate reasonable method of lesser intrusiveness to
accomplish the governmental purpose.") (footnote
contrast, in his cross-appeal, Requester contends that the
PLCB incorrectly argues that the burden is on the requester
to demonstrate that the public interest outweighs the privacy
interest. Section 708(a) of the RTKL places the burden on the
agency to show exemption from disclosure and Section 473 of
the Liquor Code makes the addresses of all license holders
and those with a pecuniary interest a matter of public
record. Further, the PLCB fails to establish that there is
any meaningful privacy interest in the length of residency in
further argues that, in this case, in ordering disclosure,
OOR gave proper deference to the General Assembly's
determination that there is a public benefit to disclosure as
Section 473 of the Liquor Code declares that the information
is a public record. Requester identified the public interests
in disclosure of this information whereas none were advanced
in the PSEA line of cases. Specifically, Requester
contends that by its terms, Section 473 requires disclosure
of the licensee's home address and not the licensed
premises address as asserted by the PLCB, and that by
"enacting [Section] 473 the legislature must have deemed
it to be in the public's benefit to have access to
information about those individuals that were entrusted to
sell alcohol to the public," and that "in cases
such as this, there may be a lesser privacy interest for
individuals who have applied to distribute alcohol[.]"
R.R. at 144a. The use of "residence address"
in Section 504(a)(1) does not compel a different conclusion
because examination of all sections of the Liquor Code show
that "residence," "residence address,"
and "address" all refer to an applicant or
individual and not the licensed premises. See
Sections 436, 437, 504 of the Liquor Code, 47 P.S.
§§4-436, 4-437, 5-504. As a result, Requester
asserts, OOR properly applied the PSEA balancing
test and properly concluded that the public interest
outweighs the privacy interest in the disclosure of a
licensee's home address and length of residence.
we find that, pursuant to Section 708(a)(1) of the RTKL, OOR
properly placed the burden on the PLCB to demonstrate that
the requested addresses were not a public record subject to
disclosure. As this Court has recently explained with respect
to a similar provision relating to applications for medical
marijuana grower/processor or dispensary permits submitted
pursuant to Section 302(b) of the Medical Marijuana Act
Records in an agency's possession are presumed public
unless exempt under an exception in the RTKL, a privilege, or
another law. Section 305(a) of the RTKL, 65 P.S.
§67.305(a). Also, the RTKL does not supersede the public
nature of a record established by statute or regulation.
Section 306 of the RTKL, 65 P.S. §67.306.
The Act expressly provides permit applications "are
public records and subject to the [RTKL]."
Section 302(b) of the Act, 35 P.S. §10231.302(b)
(emphasis added). We agree with OOR that the phrase
"subject to" renders the Applications public except
when any RTKL exceptions or other exceptions apply.
[OOR's jurisdiction to assess statutory and regulatory
exemptions pursuant to Section 305(a)(3) of the RTKL, 65 P.S.
§67.305(a)(3), is well-established. Department of
Labor and Industry v. Heltzel, 90 A.3d 823, 834 (Pa.
Mission Pennsylvania, LLC v. McKelvey, ___ A.3d ___
(Pa. Cmwlth., Nos. 185 C.D. 2018, 186 C.D. 2018, 187 C.D.
2018, 188 C.D. 2018, 189 C.D. 2018, 190 C.D. 2018, filed June
4, 2019) (Mission Pennsylvania, LLC), slip op. at
Mission Pennsylvania, LLC, in response to a claim
for exemption from disclosure under Article 1, Section 1,
"OOR determined that the street addresses may be
redacted from the applications, but required disclosure of
the cities, states, and zip codes of the residential
addresses." Slip op. at 18. Accordingly, in that case,
"residential addresses that reveal an individual's
location [we]re not at issue," and this Court "only
evaluat[ed] an individual's privacy right in the
remainder of the residential address." Id.
ultimately determined that "[t]he record does not
contain support for a reasonable subjective belief that
residential addresses would be protected from disclosure
[because] the application instructions d[id] not list
'residential addresses' as confidential information .
. . ." Slip op. at 18. We also noted that "none of
the parties submitted evidence supporting a subjective
expectation in the privacy of residential addresses submitted
in a voluntary application process." Id. at
18-19. Accordingly, we concluded that "OOR struck an
appropriate balance in permitting partial redaction of
addresses," and "we discern[ed] no error by OOR in
analyzing the right to privacy." Id. at 19.
in Governor's Office of Administration v.
Campbell, 202 A.3d 890 (Pa. Cmwlth. 2019)
(GOA), the requester sought the full names,
position/job titles, dates of birth, and counties of
residence of all employees in the Governor's Office of
Administration's (GOA) computerized database. GOA granted
the request in part, directing the requester to a publicly
accessible electronic database listing the names and job
titles of Commonwealth employees, which includes salaries,
compensation, and employing agency, subject to redaction
under Section 708(b) of the RTKL. GOA denied the request in
part, to the extent that it sought the employees' dates
of birth and counties of residence.
requester's appeal to OOR, GOA submitted the affidavit of
the Commonwealth's Acting Director for the Human
Resources Service Center (HR Director), which stated that:
where an employee lives is a unique piece of data in his or
her confidential personnel file, the use of which is related
exclusively to the Commonwealth's role as employer; the
Commonwealth only uses the address information to discern the
particular benefits to which an employee is entitled as the
benefits packages, programs, and requirements vary from
county to county; and that information as to the sub-units of
government of an employee's address (e.g., municipality
or township) were also saved to provide tax information to
the appropriate taxing authority. The HR Director indicated
that "Commonwealth human resource professionals consider
demographic information about an employee to be
confidential," and "the confidential nature of
demographic information is a well-accepted best practice in
the human resource industry" that "is memorialized
as a Commonwealth policy in Management Directive 505.18,
Maintenance, Access, and Release of Employe
Information," limiting "access to confidential
employee information . . . to those who need to use the
information for job-related purposes, the employee or persons
explicitly permitted by the employee." Id. at
895 (footnote omitted).
recognized the provisions of the Employment Records
Law "protecting employment records by
creating an expectation that only those who have a legitimate
need, or those explicitly authorized . . . will access the
employee's records," and Section 731 of the Fiscal
Code that "treats information collected
for tax purposes as confidential [and] for official use
only." GOA, 202 A.3d at 895. We also noted that
the requester therein "provided no countervailing public
interest in support of disclosure." Id.
On balance, we perceive no public benefit or interest in
disclosing the requested counties of residence of
Commonwealth employees and Requester has asserted none. 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 . . . ."
Governor's Office of Administration v. Purcell,
35 A.3d 811, 820 (Pa. Cmwlth. 2011). The requested disclosure
of information about the counties of residence of
Commonwealth employees is not closely related to the official
duties of the Commonwealth employees, and does not provide
insight into their official actions. Indeed, "[t]he
disclosure of personal information such as home addresses,
reveals little, if anything about the workings of
government[.]" PSEA, 148 A.3d at 145 (quoting
Pennsylvania State Education Association ex rel. Wilson
v. Department of Community and Economic Development, Office
of Open Records, 981 A.2d 383, 386 (Pa. Cmwlth. 2009),
aff'd, [2 A.3d 558 (Pa. 2010)]).
In rejecting a similar request for the home addresses of
public school employees, our Supreme Court stated:
[N]othing in the RTKL suggests that it was ever intended to
be used as a tool to procure personal information about
private citizens or, in the worst sense, to be a generator of
mailing lists. Public agencies are not clearinghouses of
"bulk" personal information ...