On August 20, 2013, the Pennsylvania Supreme Court issued its long-awaited decision in Bowling v. Office of Open Records. In Bowling, an employee of the Pittsburgh Tribune-Review filed a request for records from the Pennsylvania Emergency Management Agency (“PEMA”). The employee requested invoices and contracts that related to equipment and services purchased by PEMA with federal grant funds. While PEMA provided access to the records, it redacted much of the information in the records including the recipients of the goods and services, giving homeland security, national defense, and public safety as the reasons.
Upon receipt of the redacted records, the employee appealed to the Office of Open Records (OOR). OOR affirmed the decision to keep certain information redacted. The employee appealed that ruling by petition to the Commonwealth Court. The Commonwealth Court reversed the decision of OOR, concluding that it was entitled to review OOR’s decision without any deference to OOR’s findings. The Commonwealth Court then engaged in its own fact-finding, determining that in addition to the official records from the decisions below, the court could consider any other records necessary to judge the propriety of the agency’s decision under the Right to Know Act.
It is significant that the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court upon appeal. Specifically, the Court set forth two holdings: (1) final determinations made by OOR (or appeals officers) are not entitled to a deferential standard of review and are to be reviewed de novo; and (2) state courts are provided latitude to expand the record as necessary to determine the propriety of the agency’s decision under the Right to Know Act.
What are the practical effects of this decision? To start, it imposes a greater burden on Pennsylvania state courts to review cases arising under the Right to Know Act. They must now conduct an independent review of the case through its appeal process, which means a complete review of the law and an expansion of the record as needed. The courts cannot merely defer to OOR. The decision may result in OOR modifying the process in which they review cases, understanding that its decisions will be examined under the microscope at the state court level. For school districts, it is conceivable that requests for information should be reviewed in a sentence-by-sentence method, even when faced with a voluminous request. For this reason, the Bowling ruling results in a victory for citizens requesting district records as it broadens access to public records.
On April 24, 2013, the PA Supreme Court and Commonwealth court decided three cases which provided additional guidance regarding Right-To-Know Law (RTKL) requests. In Office of the Governor v. Andy Raffle, the Commonwealth Court addressed a request for government employee home addresses, counties of residence and middle names of government employees. The requests had been denied based upon the personal security exception under the RTKL. The Court determined that all candidates for public office are required to file an Affidavit and Nomination Petition with the Pennsylvania Department of State specifying their residence, including street and number. Those records are public records under the Pennsylvania Election Code. Therefore, the Court reasoned that an individual cannot reasonably expect to keep his or her middle name private and that its disclosure, even with the release of the employee’s home address, did not result in a reasonable likelihood of a risk of harm to the personal security of that employee. The Court did confirm that the personal identification information exception under the RTKL exempts from disclosure a record containing all or part of a person’s cellular or personal telephone number.
The Commonwealth Court in Office of the Lieutenant Governor v. Mohn, addressed the claim that the constitutional privacy right under the Pennsylvania Constitution protects the disclosure of a government employee’s home address. The Court reasoned that since there was no mention of birthdates and addresses of all public employees under the personal identification exception of the RTKL, such information is not entitled to an unconditional protection afforded the home addresses and birthdates of other at risk individuals, such as law enforcement officers, judges and minor children. The Court then recognized that there is a constitutional right to privacy under the Pennsylvania Constitution, but this right is not absolute. The Court indicated that the constitutional right to privacy does not extend to the protection of one’s home address. The only exception would be under the personal security exception of the RTKL which must be established by a preponderance of the evidence that disclosure would be reasonably likely to result in a substantial and demonstrable risk of physical harm to the personal security of an individual. Please note that despite this decision, as of this time, the PSEA injunction is still in place as it relates to the home addresses of teachers employed by School Districts.
Finally, the Pennsylvania Supreme Court in Levy v. Senate of Pennsylvania addressed the application of the attorney/client privilege to legal invoices and the information which may be protected and also what must be disclosed. The end result of the court’s analysis was that requests for legal invoices will still require line by line redaction of legal bills to remove privileged information. Client identities and generic information that does not reveal the legal advice at issue is open to the public and cannot be redacted. In addition, within the Court’s analysis, it reversed the prior holding in Signature Information Solutions v. Aston Township which prevented public agencies from changing or supplementing their reasons for denying a request at the OOR level. This is excellent news for school districts who may not conduct an in-depth legal analysis of each request until an appeal is filed with OOR.
Our office will continue to monitor notable appellate decisions regarding the RTKL and periodically provide additional updates to school districts regarding cases which significantly impact school district processing of RTKL requests.