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IN THE SUPREME COURT OF PENNSYLVANIA
NO. 22 MAP 2015
THE PENNSYLVANIA STATE EDUCATION ASSOCIATION, BY LYNNE WILSON,
GENERAL COUNSEL, WILLIAM MCGILL, F. DARLENE ALBAUGH, HEATHER
KOLANICH, WAYNE DAVENPORT FREDRICK SMITH, JAMIE MCPOYLE,
BRIANNA MILLER, VALERIE BROWN, JANET LAYTON, KORRI BROWN, AL
REITZ, LISA LANG, BRAD GROUP, AND RANDALL SOVISKY,
Appellants / Cross-Appellees,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF COMMUNITY AND
ECONOMIC DEVELOPMENT, OFFICE OF OPEN RECORDS, AND TERRY
MUTCHLER, EXECUTIVE DIRECTOR OF THE OFFICE OF OPEN RECORDS,
Appellees / Cross-Appellants,
and
PENNSYLVANIA ASSOCIATION OF SCHOOL RETIREES, URENEUS V.
KIRKWOOD, JOHN B. NYE, STEPHEN M. VAK, AND RICHARD ROWLAND, AND
SIMON CAMPBELL
Intervenors.
Amended Brief of Appellees/Cross-Appellants Office of Open Records and Terry Mutchler
ON APPEAL TO THE PENNSYLVANIA SUPREME COURT FROM THE FEB. 17, 2015 ORDER AND
OPINION OF THE COMMONWEALTH COURT, DOCKET NO. 396 MD 2009
Charles Rees Brown, Esq.
Supreme Court I.D. Number 70612
J. Chadwick Schnee, Esq.
Supreme Court I.D. Number 306907
The Office of Open Records
Keystone Building, Plaza Level
400 North Street
Harrisburg, PA 17120-0225
T: (717) 346-9903; F: (717) 425-5343
Counsel for the Office of Open Records and Terry
Mutchler, Appellees/Cross-Appellants
Received 08/09/2015 Supreme Court Middle District
i
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................. i
TABLE OF AUTHORITIES ......................................................................... iii
I. STATEMENT OF JURISDICTION .................................................... 1
II. ORDER OR OTHER DETERMINATION IN QUESTION ............... 2
III. STATEMENT OF STANDARD AND SCOPE OF REVIEW ........... 4
IV. STATEMENT OF THE QUESTIONS INVOLVED .......................... 5
V. STATEMENT OF THE CASE ............................................................ 6
A. Background ........................................................................................... 6
B. Procedural History ................................................................................ 7
VI. SUMMARY OF ARGUMENT .......................................................... 14
VII. ARGUMENT...................................................................................... 17
A. The Commonwealth Court erred in finding that procedural due
process is statutorily-required by the RTKL when home addresses are
requested ............................................................................................. 18
i. The opinion and order violates the plain meaning of Section
708(b)(1)(ii) and the mandate to narrowly construe exemptions ....... 20
ii. The opinion and order conflicts with other statutory provisions and
fails to give meaning to the remainder of the RTKL ....................... 243
B. When a legitimate liberty or property interest is threatened, the RTKL
provides for due process ..................................................................... 26
i. The RTKL delegates procedural due process to individual agencies
with respect to the Request Stage ....................................................... 31
ii. The Public School Code allows PSEA to negotiate the manner and
method of how procedural due process is provided by school district .
343
iii.The OOR provides for procedural due process during the Appeal
Stage ................................................................................................... 35
ii
1.PSEA has not established any harm as a result of a lack of procedural
due process ......................................................................................... 37
C. Home addresses are not protected by the constitutional right to
privacy ................................................................................................ 39
2.PSEA has rendered this matter moot and, to the extent that the right to
privacy protects home addresses from public access, PSEA has
waived such a right ............................................................................. 43
D. The lower court erred in ordering relief against agencies over which it
lacked jurisdiction .............................................................................. 48
VIII. CONCLUSION .................................................................................. 51
iii
TABLE OF AUTHORITIES
Cases
Arneson v. Wolf, No. 35 M.D. 2015, 2015 Pa. Commw. LEXIS 251 (Pa.
Commw. Ct. June 10, 2015), appeal pending 51 MAP 2015 ..................... 6
Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15
(1974) .................................................................................................. 19, 37
Atcovitz v. Gulph Mills Tennis Club, 812 A.2d 1218 (Pa. 2002) ........... 22, 24
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972) .................................................................... 19
Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) ....................... 18
Bowling v. OOR, 990 A.2d 813 (Pa. Commw. Ct. 2010) ............................. 21
Buffalo Township v. Jones, 813 A.2d 659 (2002) ......................................... 4
Caba v. Weaknecht, 64 A.3d 39, 53 (Pa. Commw. Ct. 2013) ...................... 19
Cimaszewski v. Pa. Bd. of Prob. & Parole, 868 A.2d 416 (2005) ................ 4
Commonwealth v. Cole, 52 A.3d 541 (Pa. Commw.Ct. 2012)... 32, 40, 41, 46
Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003) ................ 41, 42, 43, 46
Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013) ...................................... 18
County of York v. Office of Open Records, 13 A.3d 594
(Pa. Commw. Ct. 2011) ............................................................................. 43
Hogan Unemployment Comp. Case, 83 A.2d 386 (Pa. Super. Ct. 1951)17, 18
Holland v. Marcy, 883 A.2d 449 (Pa. 2005) ................................................ 20
In the Interest of F.C. III, 2 A.3d 1201 (Pa. 2010) (citing Morrissey v.
Brewer, 408 U.S. 471 (1972) .................................................................... 31
In Re Silberstein, 11 A.3d 629 (Pa. Commw. Ct. 2011) .............................. 27
Kelley v. Baldwin, 179 A. 736 (Pa. 1935) .................................................... 26
Kelley v. Earle, 190 A. 140 (Pa. 1937) ......................................................... 26
Marin v. Sec’y of Pa., 41 A.3d 913 (Pa. Commw. Ct. 2012) .......... 41, 42, 43
Mollick v. Twp. of Worcester, 32 A.3d 859 (Pa. Commw. Ct. 2011) .......... 27
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972) .................................................................................................. 19, 31
Office of Open Records v. Center Township, 95 A.3d 354
(Pa. Commw. Ct. 2014) ......................................................................... 6, 17
Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Commw.
Ct. 2013) ........................................................................................ 40, 41, 47
Office of the Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa.
Commw. Ct. 2013) .................................................................. 40, 41, 43, 47
Pa. Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823 (Pa. Commw.
iv
Ct. 2014) .................................................................................................... 17
Pa. Soc. Servs. Union, Local 688 v. Commonwealth, 59 A.3d 1136 (Pa.
Commw. Ct. 2012) .............................................................................. 41, 43
Pa. State Educ. Ass’n v. Commonwealth, 110 A.3d 1076 (Pa. Commw. Ct.
2015) .................................................................................................. passim
Pa. State Educ. Ass’n v. Commonwealth, 4 A.3d 1156 (Pa. Commw. Ct.
2010) ........................................................................................................ 8, 9
Pa. State Educ. Ass’n v. Dep't of Cmty. & Econ. Dev., 981 A.2d 383(Pa.
Commw. Ct. 2009) .................................................................................. 7, 8
Pa. State Educ. Ass'n ex rel. Wilson v. Pa. Office of Open Records, 2 A.3d
558 (Pa. 2010) ............................................................................................. 8
Pa. State Educ. Ass'n ex rel. Wilson v. Pa. Office of Open Records, 50 A.3d
1263 (Pa. 2012) ........................................................................................... 9
Pa. State Educ. Ass’n v. Commonwealth, 56 A.3d 692 (Pa. 2010) ................ 9
Pennsylvania Coal Mining Association v. Insurance Dep’t, 370 A.2d 685
(Pa. 1977) .................................................................................................. 19
Reed v. Harrisburg City Council, 995 A.2d 1137 (2010) ............................. 4
Sharpless v. Mayor, 21 Pa. 147 (Pa. 1853) ................................................... 27
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............................................. 18
Sweeny v. Tucker, 375 A.2d 698 (Pa. 1977) ........................................... 18, 19
Thirty, Inc. v. Gil Smart & Lancaster Newspapers, Inc.,
No. 805 C.D. 2013, 2014 Pa. Commw. Unpub. LEXIS 235
(Pa. Commw. Ct. April 14, 2014) ............................................................. 36
Tranter v. Allegheny Co. Authority, 173 A. 289 (Pa. 1934) ......................... 27
Williams v. State Civil Service Com., 300 A.2d 799 (Pa. Commw.
Ct. 1973) .................................................................................................... 26
Statutes 1 Pa.C.S. § 1921 ............................................................................................ 20
1 Pa.C.S. § 1921(a) ....................................................................................... 20
1 Pa.C.S. § 1922(3) ........................................................................... 26, 27, 32
23 Pa.C.S. §§ 1302-1309 .............................................................................. 45
24 P.S. § 11-1111-A ..................................................................... 7, 16, 34, 46
24 P.S. § 11-1112-A ........................................................................... 7, 16, 34
25 Pa.C.S. § 1207(a) ..................................................................................... 45
42 Pa.C.S. § 102 .............................................................................................. 6
42 Pa.C.S. § 5105(a)(1) .................................................................................. 1
42 Pa.C.S. § 5105(d)(1) .................................................................................. 4
42 Pa.C.S. § 723(a) ......................................................................................... 1
42 Pa.C.S. § 7540 .................................................................................... 49, 50
v
42 Pa.C.S. § 931(a) ....................................................................................... 26
42 Pa.C.S. §§ 7531-7541 .............................................................................. 48
65 P.S. § 1104(e) ........................................................................................... 45
65 P.S. § 67.1101 ................................................................................ 6, 35, 36
65 P.S. § 67.1101(a)(1) ........................................................................... 24, 25
65 P.S. § 67.1102(b) ............................................................................... 31, 35
65 P.S. § 67.1306(a) ...................................................................................... 26
65 P.S. § 67.1310(a) ........................................................................ 6, 7, 25, 33
65 P.S. § 67.1310(a)(1) ................................................................................. 33
65 P.S. § 67.1310(a)(5) ................................................................................... 7
65 P.S. § 67.502(b)(1) ............................................................................. 27, 32
65 P.S. § 67.504(a) ........................................................................................ 35
65 P.S. § 67.505(a) ........................................................................................ 33
65 P.S. § 67.506(c) .................................................................................. 23, 24
65 P.S. § 67.706 ............................................................................................ 28
65 P.S. § 67.707(a) .................................................................................. 24, 30
65 P.S. § 67.707(b) ................................................................................. 22, 30
65 P.S. § 67.708(b)(1)(ii) ....................................................................... passim
65 P.S. §§ 67.101-.3104 ............................................................................ 6, 25
65 P.S. §§ 67.1101-.1102 ................................................................................ 7
65 P.S. §§ 67.701-.903 .................................................................................... 6
65 P.S. §§ 67.707(a)-(b) .......................................................................... 30, 32
65 P.S. § 67.708 ............................................................................................ 41
65 P.S. § 67.504(a) .................................................................................. 31, 32
65 Pa.C.S. §§ 66.1 ......................................................................................... 40
Other Authorities
Eisemann v. Pennsylvania Department of Public Welfare, OOR Dkt. AP
2012-2017, 2013 PA O.O.R.D. LEXIS 297 .............................................. 31
Gross v. Pennsylvania Department of Health, OOR Dkt. AP 2013-1595,
2013 PA O.O.R.D. LEXIS 921 ................................................................. 36
Marks v. Delaware County, OOR Dkt. AP 2009-1146, 2010 PA
O.O.R.D. LEXIS 161 ................................................................................ 29
Pennsylvanians for Union Reform v. Millersville University, OOR
Dkt. AP 2015-0530, 2015 PA O.O.R.D. LEXIS 668 ............................... 49
vi
Pennsylvanians for Union Reform, Inc. v. State Empl. Retire. Sys., OOR
Dkt.AP 2013-1830, 2014 PA O.O.R.D. LEXIS 99................................... 49
Senate Bill 411 of 2015 ............................................................................. 23
43 Pa.B. 6083 ............................................................................................. 33
Rules
Pa.R.C.P. 205.1 through Pa.R.C.P. 440(a) ................................................... 45
Constitutional Provisions
PA. CONST. art. V, § 5 ................................................................................... 25
Appendix
Opinion by Judge Cohn Jubelirer dated February 17, 2015
Exhibit A
September 5, 2013 RTKL request notification from the State Employees’
Retirement System
Exhibit B
Sample Appeal Notification Letter
Exhibit C
Request to Participate as Direct Interest Party
1
I. STATEMENT OF JURISDICITION
The Supreme Court has jurisdiction over this matter pursuant to 42
Pa.C.S. § 723(a) and 42 Pa.C.S. § 5105(a)(1).
2
II. ORDER OR OTHER DETERMINATION IN QUESTION
NOW, February 17, 2015, it is hereby ORDERED as follows:
1. The Office of Open Records’ (OOR) and the Pennsylvania
Association of School Retirees (PASR) Partial Motion for Summary
Judgment as to Counts I, II, and III of Petitioners’ First Amended
Petition for Review is GRANTED and Counts I, II, and III are
DISMISSED.
2. Petitioners’ Cross Motion for Summary Judgment as to Counts I, II,
and III of the First Amended Petition for Review is DENIED.
3. The OOR’s and PASR’s Amended Partial Motion for Summary
Judgment as to Counts IV and V of the First Amended Petition for
Review is DENIED.
4. Petitioners’ Cross Motion for Summary Judgment as to Counts IV and
V of the First Amended Petition for Review is GRANTED.
5. The OOR and the public school districts are enjoined from disclosing,
pursuant to a Right-to-Know Law request, those records maintained
by the public school districts, which contain the home addresses of
public school employees until the affected employees have had
written notice and a meaningful opportunity to object at the request
stage to the disclosure of their home addresses based on, but not
3
limited to, the personal security exception set forth in Section
708(b)(1)(ii) of the Right-to-Know Law, 65 P.S. § 67.708(b)(1)(ii).
6. The OOR is directed to permit public school employees who choose
to object to the disclosure of any record maintained by a public school
district which contains their home addresses to intervene, as of right,
in an appeal from the denial of a Right-to-Know Law request for such
information or to appeal as an aggrieved party from a grant by the
public school district of the Right-to-Know Law request for their
personal address information.
7. The OOR is directed to take all reasonable steps necessary to notify
public school districts in the Commonwealth of this Order.
/s/ RENÉE COHN JUBELIRER, Judge
4
III. STATEMENT OF STANDARD AND SCOPE OF REVIEW
In reviewing questions of law, the standard of review is de novo and
the scope of review is plenary. See Reed v. Harrisburg City Council, 995
A.2d 1137, 1139 (2010) (quoting In re Milton Hershey School, 911 A.2d
1258, 1261 (2006)); Cimaszewski v. Pa. Bd. of Prob. & Parole, 868 A.2d
416, 421 n.8 (2005); Buffalo Township v. Jones, 813 A.2d 659, 664 n.4
(2002); 42 Pa.C.S. § 5105(d)(1).
5
IV. STATEMENT OF THE QUESTIONS INVOLVED
A. Having found that the constitutional right to privacy does not
protect home addresses from public access, did the
Commonwealth Court err by applying procedural due process
principles to this dispute in the absence of a protected property or
liberty interest?
SUGGESTED ANSWER: Yes.
B. Did the Commonwealth Court err in holding that the Right-to-
Know Law, as a presumptively constitutional statute, does not
provide procedural due process, either independently or in
conjunction with other laws?
SUGGESTED ANSWER: Yes.
C. Did the Commonwealth Court err in ordering relief against non-
party public school districts over which the Court lacked personal
jurisdiction?
SUGGESTED ANSWER: Yes.
D. To the extent that 65 P.S. § 67.708(b)(1)(ii) requires that notice be
provided to public school employees, should public school
employees be responsible to notify their employers that they
preemptively object to the release of their home addresses due to
a “substantial and demonstrable risk” of harm?
SUGGESTED ANSWER: Yes.
6
V. STATEMENT OF THE CASE
A. Background
Respondent Pennsylvania Office of Open Records (“OOR”) is an
independent, quasi-judicial tribunal charged with, among other duties,
adjudicating appeals of decisions concerning access to records in the
possession of Commonwealth and local agencies under the Right-to-Know
Law (“RTKL”), 65 P.S. §§ 67.101-.3104. See 65 P.S. § 67.1101; 65 P.S. §
67.1310(a); see also Arneson v. Wolf, No. 35 M.D. 2015, 2015 Pa. Commw.
LEXIS 251 (Pa. Commw. Ct. June 10, 2015), appeal pending 51 MAP
2015; Office of Open Records v. Center Twp., 95 A.3d 354, 363-64 (Pa.
Commw. Ct. 2014); see also 42 Pa.C.S. § 102 (defining “tribunal”).
Under the RTKL, individuals may request records from governmental
agencies, such as school districts (the “Request Stage”). See 65 P.S. §§
67.701-.903. The OOR has no involvement or knowledge of requests and
agency responses during the Request Stage.
If a requester is denied access to records or an agency fails to timely
respond to a request for records during the Request Stage, the requester may
file an appeal to an Appeals Officer under Chapter 11 of the RTKL (the
“Appeal Stage”). See 65 P.S. § 67.1101. The OOR employs Chapter 11
Appeals Officers, who are charged with issuing final orders that adjudicate
7
whether records are subject to public access. See 65 P.S. §§ 67.1101-.1102;
65 P.S. § 67.1310(a)(5).
The Pennsylvania State Education Association (“PSEA” or
“Petitioners”) is a labor union representing public school employees that
possesses the power to collectively bargain over the “terms and conditions”
of employment and to require public school districts to “meet and discuss”
matters of inherent managerial policy that affect the “terms and conditions”
of the employment of public school employees. See 24 P.S. § 11-1111-A;
24 P.S. § 11-1112-A.
B. Procedural History
In 2009, PSEA filed a declaratory judgment action against the OOR,
its Executive Director and the Pennsylvania Department of Community and
Economic Development, seeking a permanent injunction preventing the
release of home addresses of public school employees and a declaration that
such addresses are protected under the constitutional right to privacy
(“Complaint”). See Pa. State Educ. Ass’n v. Dep’t of Cmty. & Econ. Dev.,
981 A.2d 383, 384 (Pa. Commw. Ct. 2009) (“PSEA I”); Reproduced Record
(“R.”) 1a-143a. On July 28, 2009, Senior Judge Rochelle Friedman entered
an order granting PSEA’s request for a preliminary injunction that enjoined
both: 1) the OOR from ordering the release of the home addresses of public
8
school employees; and 2) unidentified, nonparty school districts from
releasing the home addresses of their employees. R. 264a-65a. Senior
Judge Friedman authored a supporting opinion on August 6, 2009. See
PSEA I, supra; R. 266a-70a. The OOR appealed the single-judge order to
this Court, which, on August 17, 2010, affirmed the order “without prejudice
to any party’s right to appeal the Commonwealth Court’s final disposition of
these proceedings.” See Pa. State Educ. Ass'n ex rel. Wilson v. Pa. Office of
Open Records, 2 A.3d 558 (Pa. 2010) (per curiam); R. 301a-14a; R. 316a.
The OOR filed preliminary objections, raising jurisdictional
arguments and a demurrer that argued that there is no constitutional right to
privacy in a home address. See Pa. State Educ. Ass’n v. Commonwealth, 4
A.3d 1156, 1158-64 (Pa. Commw. Ct. 2010) (“PSEA II”). Judge Mary
Hannah Leavitt entered an en banc order and opinion of the Commonwealth
Court sustaining the OOR’s preliminary objections, dismissing the
Complaint, and holding that the OOR is not a proper defendant to PSEA’s
action. Id. at 1165-66; R. 317a-55a. Now-President Judge Dan Pellegrini
dissented, stating that he would have granted the OOR’s demurrer
“[b]ecause there is no constitutional right to privacy in Pennsylvania that
protects disclosure of home addresses and no provision in the RTKL that
grants a statutory right to non-disclosure of public employee home
9
addresses.” PSEA II, 4 A.3d at 1166-71 (Pellegrini, J., dissenting); R. 336a-
47a. Judge Patricia McCullough also dissented from the majority’s opinion.
R. 348a-55a.
PSEA appealed the Commonwealth Court’s en banc opinion and
order to the Pennsylvania Supreme Court. See Pa. State Educ. Ass'n ex rel.
Wilson v. Pa. Office of Open Records, 50 A.3d 1263, 1265 (Pa. 2012)
(“PSEA III”); R. 356a-75a. PSEA sought reinstatement of the injunction,
which this Court granted. See Pa. State Educ. Ass’n v. Commonwealth, 56
A.3d 692 (Pa. 2010) (per curium). Now-Chief Justice Thomas Saylor issued
an opinion and order of the Supreme Court vacating the Commonwealth
Court’s decision, finding that, based on an “inadequate” “administrative
process … to address the claim[s of third parties] and … a substantial
constitutional issue,” the OOR was a proper defendant to PSEA’s action in
that limited due process context. See PSEA III, 50 A.3d at 1275-76; R.
376a-415a. Then-Chief Justice Ronald Castille and Justice Debra Todd filed
concurring opinions. R. 402a-12a. Justice J. Michael Eakin filed a
dissenting opinion. R. 413a-15a.
On remand, the Commonwealth Court directed the OOR to file an
answer to PSEA’s Petition for Review. After the OOR filed an Answer and
New Matter to which PSEA responded, the OOR filed an application for
10
summary relief styled as a “Motion for Summary Judgment” as to all three
counts listed in the Petition for Review. R. 416a-24a. On May 22, 2013,
PSEA, over the OOR’s objection, filed an Amended Petition for Review,
which added two additional counts asking the Commonwealth Court to
declare that the RTKL is unconstitutional “to the extent the [RTKL] requires
the disclosure of the home addresses of a public school employee without
providing procedural due process” and seeking injunctive relief preventing
the release of “the home addresses of public school employees” until the
OOR regulates individual agencies receiving RTKL requests. R. 430a-507a.
On July 30, 2013, Judge Renée Cohn Jubelirer entered an opinion and
order permitting the addition of new Counts IV and V of the Amended
Petition for Review. R. 508a-524a. The July 30, 2013 order also stated that
the OOR’s February 25, 2013 “Motion for Summary Judgment will be
treated as a Partial Motion for Summary Judgment as to Counts I, II, and III
of the First Amended Petition for Review.” Id.
On March 25, 2014, after a hearing, Judge Friedman issued a
memorandum opinion and order that limited the July 28, 2009 injunctive
order solely to records in the hands of public school districts. R. 857a-68a;
see R. 720a-809a. On May 21, 2014, the Commonwealth Court issued a per
curiam order lifting the stay as to the OOR’s Partial Motion for Summary
11
Judgment as to Counts I, II and III of the First Amended Petition for Review
and scheduled briefing. R. 889a-90a.
On May 23, 2014, the OOR filed an application for summary relief
entitled “Partial Motion for Summary Judgment as to Counts IV and V of
Petitioners’ Amended Petition for Review” as to PSEA’s allegations
concerning procedural due process. R. 903a-30a. The OOR’s Partial
Motion for Summary Judgment as to Counts I, II and III of the First
Amended Petition for Review and its Partial Motion for Summary Judgment
as to Counts IV and V of Petitioners’ Amended Petition for Review are
collectively referred to herein as the OOR’s “Motion for Summary
Judgment.”
On February 17, 2015, Judge Cohn Jubelirer issued an order and
opinion on behalf of the Commonwealth Court, which held that, although
home addresses are not protected by a constitutional right to privacy,
procedural due process principles apply to requests for records containing
the home addresses of public school employees because of the “personal
security exemption” under 65 P.S. § 67.708(b)(1)(ii). See Pa. State Educ.
Ass’n v. Commonwealth, 110 A.3d 1076 (Pa. Commw. Ct. 2015) (“PSEA
IV”); R. 937a-78a. President Judge Pellegrini authored a dissenting opinion
in which Judge Bernard McGinley joined. R. 960a-68a. The dissent agreed
12
with the OOR that procedural due process principles should not apply to the
present dispute because “the personal security exemption[] does not provide
any property or personal right requiring … personal notice.” PSEA IV at
1089-93 (Pellegrini, P.J., dissenting). As a result, President Judge Pellegrini
wrote that the majority, in reaching its result
[s]uccumb[ed] to unfounded fears and a parade of speculative
horribles, ignor[ed] the public’s control over public records,
[and] cripple[ed] the [RTKL] … to such an extent that the
public access to public records will be impeded…
Id. at 1089.
Judge Kevin Brobson authored a concurring opinion stating that he
would extend the majority’s holding “to require due process protections
involving all records that fall within all exemptions in the RTKL…” Id. at
1093-94; R. 970a-73a. Judges Leadbetter and Cohen Jubelirer joined this
concurrence. R. 973a.
Judge McCullough authored a concurring opinion stating that “a
constitutional right of privacy in one’s home address is implied into the
‘personal security’ exception as a matter of law.” Id. at 1094-95; R. 975a-
78a.
PSEA filed an appeal of the Commonwealth Court’s opinion and
order on February 20, 2015, which is pending before this Court at 11 MAP
2015. R. 979a-1028a. The OOR filed an appeal to this Court on March 19,
13
2015. R. 1032a-38a. PSEA, over the OOR’s objections, sought and
obtained supersedeas and the restoration of Judge Friedman’s July 28, 2009
injunction as modified by Judge Friedman’s March 25, 2014 order. R.
1029a-31a; R. 1039a-42a.
14
VI. SUMMARY OF ARGUMENT
Putting the cart before the horse, the Commonwealth Court
erroneously imposed procedural due process principles onto the RTKL in
the absence of a protected property right or liberty interest. In finding that
home addresses are not protected by a constitutional right to privacy, the
majority’s analysis should have ended there, as, without a protected interest
worthy of constitutional protection, procedural due process principles should
not apply.
In leapfrogging over the need to find a protected interest in order for
procedural due process to apply to the RTKL, the majority developed a
vision of how procedural process should apply to the RTKL that is found
nowhere in the statute. Although procedural due process principles should
not be triggered by a request for records containing home addresses, the
plain language of the RTKL provides for procedural due process when
warranted, either explicitly or by delegating the provision of procedural due
process to the individual agencies receiving RTKL requests when other
types of information are sought.
Further, the Commonwealth Court reached beyond its jurisdiction by
ordering public school districts – none of which are parties to this litigation –
to undertake the burdensome, costly and time-consuming expense of
15
providing “written notice and a meaningful opportunity to object” to all
public school employees in response to each and every RTKL request for
public records that may contain a public school employee’s home address.
Because the majority directed relief against non-party school districts, the
Commonwealth Court’s opinion exceeded the scope of the Court’s authority.
RTKL requests can only be submitted to public agencies. By virtue of
the decision to be employed by a public agency, certain information
concerning a public employee’s employment will be subject to public access
through the RTKL, especially if the public agency has no notice that a public
employee objects to the release of certain information. If a public employee
truly fears that the release of his or her home address will result in a
“substantial and demonstrable risk of … harm,” that employee has a
personal responsibility to preemptively notify their public employer in order
to ensure that requests for certain information, such as home addresses, are
denied. Otherwise, as here, where a well-heeled labor union is involved,
employees can make their concerns related to the release of potentially-
sensitive information known to their employers while also ensuring that
elements of procedural due process are tailored to their unique
circumstances by either collectively bargaining over the “terms and
conditions” of public employment or by requiring public school districts to
16
“meet and discuss” matters of inherent managerial policy that affect the
“terms and conditions” of the employment of public school employees. See
24 P.S. § 11-1111-A; 24 P.S. § 11-1112-A.
The OOR asks this Court to hold that: 1) agencies are not required to
provide procedural due process each and every time a request for public
records containing a home address is filed, and 2) home addresses are not
protected by a constitutional right to privacy.
17
VII. ARGUMENT
Procedural due process cannot be extended to apply to public records
containing home addresses, especially in the present case where PSEA
baldly alleges that home addresses are selectively protected by the
constitutional right of privacy only on records held by public school districts
rather than when held by other agencies or when they have already been
released to the public at large. As home addresses are not protected by the
Pennsylvania Constitution and the Commonwealth Court did not identify
any property interest in public records containing home addresses,
procedural due process is not constitutionally or statutorily required.1 Even
assuming, arguendo, that procedural due process must be applied to requests
for public records containing home addresses, the Commonwealth Court
erred in fashioning a system intended to set forth procedural due process
when the RTKL, explicitly and implicitly, already ensures procedural due
process is afforded when required. Additionally, the Commonwealth Court
exceeded its jurisdiction by ordering relief against non-party school districts.
1 As the Commonwealth Court held that procedural due process is statutorily required by
the RTKL, it should be noted that, as a threshold matter, the OOR, as the agency created
by the RTKL, is entitled to some deference to its interpretation of its enabling legislation.
See Pa. Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823, 834 (Pa. Commw. Ct. 2014)
(“[T]he interpretation of Section 708(b) exceptions is squarely within OOR’s agency
expertise”); Office of Open Records v. Center Township, 95 A.3d 354, 363 (Pa. Commw.
Ct. 2014) (“[T]he OOR is … a quasi-judicial agency possessing administrative expertise
in the area of document disclosure”); Hogan Unemployment Comp. Case, 83 A.2d 386,
18
To the extent that a public employee has a legitimate fear concerning
the release of a home address, that individual has a duty to notify his or her
public employer of the need to deny access to that information prior to a
request. The General Assembly did not intend to require the government to
expend time and money to notify public employees of a request for their
home addresses where the public employees did not previously inform their
employer of any objections to disclosure.
A. The Commonwealth Court erred in finding that procedural
due process is statutorily-required by the RTKL when home
addresses are requested
In its most basic sense, procedural due process prevents government
agencies from “depriving individuals of life, liberty, or property, unless it
provides the process that is due.” Commonwealth v. Turner, 80 A.3d 754,
764 (Pa. 2013). “In order to determine the requirements of procedural due
process, [courts] must first determine if the interest asserted … is protected
by the due process clause…” Sweeny v. Tucker, 375 A.2d 698, 712 (Pa.
389 n.2 (Pa. Super. Ct. 1951) (“When an administrative board rests its conclusion upon
its own official experience the courts generally respect its special competence”) (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see also Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013) (Saylor, J., concurring) (stating that he “would
favor the affordance of some deference to” the OOR based on the legal tenet that
“reviewing courts generally will lend a degree of deference to interpretations or
constructions by administrative agencies of their enabling statutes”).
19
1977) (citing Pennsylvania Coal Mining Association v. Insurance Dep’t, 370
A.2d 685 (Pa. 1977)). As this Court has explained
“The applicability of the constitutional guarantee of procedural
due process depends in the first instance on the presence of a
legitimate ‘property’ or ‘liberty’ interest within the meaning of
the Fifth or Fourteenth Amendment.” Arnett v. Kennedy, 416
U.S. 134, 164, 94 S.Ct. 1633, 1649, 40 L.Ed.2d 15 (1974)
(Powell, J., concurring joined by Blackmun, J.); accord, Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972). Only if a legitimate property or
liberty interest exists does a court determine “what process is
due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593,
2600, 33 L.Ed.2d 484 (1972).
Id.; Caba v. Weaknecht, 64 A.3d 39, 53 (Pa. Commw. Ct. 2013) (“The right
to procedural due process only attaches where there is … deprivation of a
protected property or liberty interest”).
The Commonwealth Court’s opinion and order did not hold that
procedural due process is constitutionally required; instead, the Court held
that procedural due process is statutorily required by the RTKL. See PSEA
IV, 110 A.3d at 1084 (“[T]he RTKL’s lack of a mechanism to ensure that an
affected individual has notice and an opportunity to be heard in order to
demonstrate that his or her personal information may be exempt from
disclosure pursuant to Section 708(b)(1)(ii), otherwise known as the
personal security exception, violates the statutory scheme”); id. at 1086
(“[T]his lack of due process violates the statutory scheme of the RTKL”).
20
As the lower court held that “the salient analysis [in its decision] is
not based on a constitutional right to privacy, but examines whether the
RTKL’s inclusion of a personal security exception entitles an affected
individual to procedural due process before certain information is disclosed
by a government agency,” the primary question before this Court is one of
statutory interpretation. See id. at 1086-87 n.19. In examining the RTKL, it
should be noted that the “object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly”
and that a statute should be construed to “give effect to all its provisions.” 1
Pa.C.S. § 1921(a); Holland v. Marcy, 883 A.2d 449, 456 (Pa. 2005) (“In
construing a statute, the courts must attempt to give meaning to every word
in a statute as we cannot assume that the legislature intended any words to
be mere surplusage”). In addition, “[w]hen the words of a statute are clear
and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa.C.S. § 1921.
i. The opinion and order violates the plain meaning of Section
708(b)(1)(ii) and the mandate to narrowly construe exemptions
The Commonwealth Court’s holding with respect to applying
procedural due process only “if a RTKL request seeks [an] employee’s home
address” nullifies the plain language found in other provisions of the RTKL.
Specifically, the lower court’s finding is based entirely upon 65 P.S. §
21
67.708(b)(1)(ii), which states that records that “would be reasonably likely
to result in a substantial and demonstrable risk of physical harm to or the
personal security of an individual” may be withheld from public access. See
PSEA IV, 10 A.3d at 1086 n.18. Indisputably, this provision does not
contain an explicit requirement that procedural due process be provided,
especially when only a home address is requested or through the costly
procedure set forth by the lower court. See 65 P.S. § 67.708(b)(1)(ii). As an
exemption under the RTKL, this provision, instead, “must be narrowly
construed.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa.
Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013).
Ignoring the plain text of this provision, the lower court erred by
broadly interpreting this section as requiring that
1) agencies provide “written notice and a meaningful
opportunity to object at the request stage to the disclosure of …
home addresses;”
2) “[t]he OOR … permit any public school employees who
choose to exercise their procedural due process rights and
object … to intervene, as of right, in an appeal;” and
3) the OOR allow objecting public school employees “to appeal
as an aggrieved party from a grant by [a] public school district
of [a] RTKL request for … personal address information.”
PSEA IV, 110 A.3d at 1088. Plainly, none of these requirements set forth in
the opinion are present in the plain text of the RTKL. Because there is no
ambiguity in the language of 65 P.S. § 67.708(b)(1)(ii), the lower court
22
incorrectly expanded the nature and scope of this provision – a single,
optional reason for denying access to records – far beyond its limited
confines and its plain language.
Although 65 P.S. § 67.708(b)(1)(ii) and the rest of the RTKL is silent
with respect to providing procedural due process for requests for records
containing home addresses, the RTKL explicitly provides for due process
with respect to other types of records. Specifically, Section 707(b) of the
RTKL provides that agencies “shall notify a third party of a request for a
record… contain[ing] a trade secret or confidential proprietary information”
and that, if a third party objects to the release of such information, “[t]he
agency shall deny the request … and shall notify the third party of the
decision.” 65 P.S. § 67.707(b). “[U]nder the doctrine of expressio unius est
exclusio alterius, the inclusion of a specific matter in a statute implies the
exclusion of other matters.” See Atcovitz v. Gulph Mills Tennis Club, 812
A.2d 1218, 1223 (Pa. 2002). Since the General Assembly specifically
provided procedural due process with respect to requests seeking trade
secrets or confidential proprietary information, it follows that the General
Assembly did not intend for procedural due process to be applied when
home addresses are sought. See id. Similarly, the fact that the General
Assembly is now considering amending the RTKL to include a new
23
requirement for agencies to notify agency employees of requests seeking
home addresses strongly implies that the current law does not already do so.
See PSEA IV, 110 A.3d at 1085 n.15 (mentioning Senate Bill 444 of 2014).
ii. The opinion and order conflicts with other statutory provisions
and fails to give meaning to the remainder of the RTKL
The holding that Section 708(b)(1)(ii) requires procedural due process
also directly conflicts with another provision of the RTKL. Under the
RTKL, agencies may exercise their discretion and grant access to records
that could be withheld under any of the RTKL’s thirty exemptions. See 65
P.S. § 67.506(c) (“An agency may exercise its discretion to make any
otherwise exempt record accessible…”). Agencies, however, can only
exercise their discretion by releasing an exempt record “if all of the
following apply:”
(1) Disclosure of the record is not prohibited under any of the
following:
(i) Federal or State law or regulation.
(ii) Judicial order or decree.
(2) The record is not protected by a privilege.
(3) The agency head determines that the public interest favoring
access outweighs any individual, agency or public interest that
may favor restriction of access.
65 P.S. § 67.506(c). Although this section lists certain restrictions on an
agency’s decision to release exempt records, the failure to provide third
parties notice of (or an opportunity to respond to) RTKL requests (by, for
24
example, containing language like “The agency has not notified affected
third parties of the request for the exempt record”) is not included in this
section. See Atcovitz, 812 A.2d at 1223 (“[T]he inclusion of a specific
matter in a statute implies the exclusion of other matters”).
Accordingly, under Section 506(c), agencies may voluntarily choose
to release exempt records, including records exempt under 65 P.S. §
67.708(b)(1)(ii), without any statutory requirement to provide notice or an
opportunity to object to affected individuals. See 65 P.S. § 67.506(c). The
only notice that is required when an agency chooses to release records is
after the records have already been released. See 65 P.S. § 67.707(a) (“If, in
response to a request, an agency produces a record that is not a public
record … the agency shall notify any third party that provided the record to
the agency, the person that is the subject of the record and the requester”)
(emphasis added).
Further, the Commonwealth Court’s holding that the OOR must allow
public school employees who object to the pending release of a record
containing their home addresses “to appeal as an aggrieved party from a
grant by [a] public school district of [a] RTKL request for … personal
address information” nullifies the express language in 65 P.S. §
67.1101(a)(1). See PSEA IV, 110 A.3d at 1088. Under Section 1101(a)(1),
25
the OOR (and other Chapter 11 Appeals Officers) only have jurisdiction
from appeals concerning a “request for access to a record [that] is denied or
deemed denied.” 65 P.S. § 67.1101(a)(1) (emphasis added); see also 65
P.S. § 67.1310(a)(5) (requiring the assignment of OOR appeals officers to
review decisions … filed under section 1101) (emphasis added). There is
no provision under the RTKL that provides the OOR with jurisdiction to
review an agency’s decision to grant access to records. See generally 65
P.S. §§ 67.101-.3104. Accordingly, as Section 1101 only vests the OOR
with jurisdiction over “denied or deemed denied” RTKL requests, the
Commonwealth Court’s decision directly conflicts with the plain language
(and, accordingly, the General Assembly’s express intent) by providing the
OOR with additional jurisdiction over “granted” RTKL requests.
If an agency denies access to records after providing employees with
notice and an opportunity to object, there is certainly no harm, as no records
have been released. Should a local agency overrule an agency employee’s
objections as to the release of records and choose to grant access, the agency
employee still has an available recourse — employees can seek an injunction
barring the release of information held by their employer (the agency in
possession of the records that plans on releasing them) through local Courts
of Common Pleas. See PA. CONST. art. V, § 5 (“There shall be one court of
26
common pleas for each judicial district … having unlimited original
jurisdiction in all cases except as may otherwise be provided by law”); 42
Pa.C.S. § 931(a) (vesting courts of common pleas with “unlimited original
jurisdiction of all actions and proceedings” in certain situations). The RTKL
recognizes the availability of injunctive relief against individual agencies
during the Request Stage by specifically providing that agencies, officials
and employees are civilly and criminally immune for actions “resulting from
compliance … with” the RTKL. See 65 P.S. § 67.1306(a).
B. When a legitimate liberty or property interest is threatened,
the RTKL provides for due process
Although procedural due process is not ordinarily triggered by a
request seeking a home address, the RTKL provides for procedural due
process when constitutionally required. The RTKL, like all statutes, is
presumptively constitutional. See 1 Pa.C.S. § 1922(3). PSEA bears a “very
heavy burden” of demonstrating otherwise. See Williams v. State Civil
Service Com., 300 A.2d 799, 802 (Pa. Commw. Ct. 1973) (emphasis added);
Kelley v. Earle, 190 A. 140, 144 (Pa. 1937) (“While it is the duty of the
courts to uphold the Constitution, it is likewise their duty not to declare an
act unconstitutional unless it is imperatively necessary to do so”) (emphasis
added); Kelley v. Baldwin, 179 A. 736, 737 (Pa. 1935) (“An act may not be
declared unconstitutional unless ‘it violates the Constitution clearly,
27
palpably, plainly; and in such manner as to leave no doubt or hesitation in
our minds’”) (emphasis added) (quoting Sharpless v. Mayor, 21 Pa. 147, 164
(Pa. 1853) and citing Tranter v. Allegheny Co. Authority, 173 A. 289, 293-
94 (Pa. 1934)).
Specifically, Sections 502(b)(1), 706 and 707 of the RTKL must all be
presumptively interpreted as providing for procedural due process during the
Request Stage. See 1 Pa.C.S. § 1922(3). With respect to requests filed with
individual agencies, the RTKL requires agency open-records officers to
“direct requests to other appropriate persons within the agency or to
appropriate persons in another agency.” See 65 P.S. § 67.502(b)(1). In
practice, if potentially sensitive information is requested concerning public
school employees, Section 502(b)(1) requires agency open-records officers
to inform the affected employees of such a request and inquire as to whether
these employees have any objection. See In Re Silberstein, 11 A.3d 629,
634 (Pa. Commw. Ct. 2011) (holding that it is “the open-records officer’s
duty and responsibility” to both send an inquiry of agency personnel
concerning a request and to determine whether to deny access); Mollick v.
Twp. of Worcester, 32 A.3d 859, 875 (Pa. Commw. Ct. 2011) (stating that an
open-records officer “had a duty to inquire of [agency personnel] as to
whether he or she was in the possession, custody, or control of any of the …
28
requested emails that could be deemed public and, if so, whether the emails
were, in fact, public and subject to disclosure or exemption from access by
Requestor”) (emphasis added).
From a practical perspective, agency open-records officers are
statutorily required to determine whether affected employees object to
RTKL requests, as open-records officers cannot “determine [whether] … a
public record … contains information which is subject to access as well as
information which is not subject to access” without hearing from affected
employees. See 65 P.S. § 67.706. As correctly noted by President Judge
Pellegrini in his dissent:
If an employee does not want his or her home address or a
person does not want his or her personal information released, it
is incumbent on the employee to make the reason known to the
[agency] and how the release will subject him or her to a
demonstrable and substantial harm so that the agency can make
a reasoned judgment not to provide the information.
PSEA IV, 110 A.3d at 1089 (Pellegrini, P.J., dissenting). Agencies are not
statutorily or constitutionally required to provide notice of each and every
RTKL request seeking an individual’s home address in the face of general
knowledge or a disclaimer that such information may be subject to public
access. Otherwise, under the reasoning of the opinion below, counties
would have to provide individual notice to each and every resident whenever
property tax rolls are viewed online or when faced with a request seeking the
29
addresses of licensed dog owners;2 prothonotaries would bear the burden of
providing individualized notice whenever pleadings or dockets containing a
home address are accessed;3 and municipalities across the Commonwealth
would be forced to expend funds to provide individual notice of RTKL
requests when permits containing a home address are sought.
Instead, to the extent that an employee believes that there would be a
demonstrable substantial risk of harm as a result of the release of that
particular employee’s home address, that employee must notify his or her
employer in order to ensure that his or her home address is not released and
to obtain notice of future RTKL requests. See generally id. By notifying
public agencies that certain information should not be released prior to an
active RTKL request, individuals can ensure that such information is not
released by an agency without notice, as, otherwise, agencies may choose to
voluntarily release seemingly-innocuous information presumptively subject
to public access. The concept of notifying an agency that records contain
sensitive information in order to receive further notice of RTKL requests
prior to a RTKL request is not foreign to the RTKL, as requiring affected
2 See, e.g., Marks v. Delaware County, OOR Dkt. AP 2009-1146, 2010 PA O.O.R.D.
LEXIS 161 (granting access to “the home addresses for all non-public school employees
who are dog owners” based on a prior injunctive order in this case). 3 Notably, PSEA voluntarily disclosed the home addresses of its members in its Petition
for Review. R. 3a-7a. This pleading is a court record subject to public access through the
Commonwealth Court.
30
individuals to provide pre-RTKL request notification to agencies that certain
information related to these individuals should not be disclosed is already
required for certain records under the RTKL. See 65 P.S. § 67.707(b) (“An
agency shall notify a third party of a request … if the third party … included
a written statement signed by a representative of the third party that the
record contains a trade secret or confidential proprietary information”).
Assuming that an agency wants to grant access to records seeking
information regarding agency employees during the Request Stage, the
agency cannot do so without providing notice to “the person that is the
subject of the record” — the individual agency employees whose
information is requested and have, prior to a RTKL request being filed,
notified their employer that they object to the release of such information.
See 65 P.S. § 67.707(a). Additionally, the RTKL explicitly provides that, in
addition to receiving notification of requests, third parties are able, during
the Request Stage, “to provide input on the release of the record,” and that,
an “agency shall deny the request [if warranted] … and … notify the third
party of the decision.” See 65 P.S. §§ 67.707(a)-(b). Agencies regularly
provide procedural due process to affected individuals. See, e.g., September
5, 2013 RTKL request notification from the State Employees’ Retirement
System, attached hereto as Exhibit A; Eisemann v. Pennsylvania Department
31
of Public Welfare, OOR Dkt. AP 2012-2017, 2013 PA O.O.R.D. LEXIS 297
(stating that an agency provided notice of a request to third parties during the
Request Stage and that those third parties raised objections to the release of
the records), rev’d on other grounds 86 A.3d 932 (Pa. 2014).
i. The RTKL delegates procedural due process to individual
agencies with respect to the Request Stage
As “[d]ue process is a flexible concept and calls for such procedural
protections as the particular circumstances require,” see In the Interest of
F.C. III, 2 A.3d 1201, 1215 (Pa. 2010) (citing Morrissey v. Brewer, 408 U.S.
471, 481 (1972)), the RTKL wisely empowers individual agencies to
develop mechanisms providing for procedural due process during the
Request Stage that are tailored to the particular demands of each unique
circumstance.
Specifically, while the RTKL only permits the OOR to create
regulations and policies “relating to appeals,” the actual agencies receiving
requests during the Request Stage are, instead, solely vested with the
authority to “promulgate regulations and policies necessary for the agency to
implement” the RTKL. Compare 65 P.S. § 67.504(a) (“The Office of Open
Records may promulgate regulations relating to appeals involving a
Commonwealth agency or local agency”) and 65 P.S. § 67.1102(b) (“The
Office of Open Records … may adopt procedures relating to appeals …”),
32
with 65 P.S. § 67.504(a) (“An agency may promulgate regulations and
policies necessary for the agency to implement this act”). Since providing
procedural due process is constitutionally “necessary for [agencies] to
implement” the RTKL in certain cases, the RTKL entrusts individual
agencies with this important task — especially since agencies do “not have
the right or authority to waive an individual’s interest in keeping his
information confidential.” Cole, 52 A.3d at 551.
Although the RTKL does not specifically detail the mechanics of how
individual agencies should provide due process during the Request Stage
outside of 65 P.S. § 67.502(b)(1) and 65 P.S. §§ 67.707(a)-(b), this does not
mean that the RTKL is constitutionally infirm. See 1 Pa.C.S. § 1922(3).
Instead, the RTKL entrusts agencies — the holders of records — to provide
procedural due process because they are in the best position to know, based
on the content of their own records, whether notification is required and the
best means with which to notify affected third parties, including their own
employees.
Even though the OOR lacks the power to regulate the conduct of
agencies during the Request Stage, it has exercised its statutory powers to
the fullest to encourage agencies to provide for procedural due process.
Pursuant to its ability to “develop a uniform form which shall be accepted by
33
all Commonwealth and local agencies,” see 65 P.S. § 67.505(a), for
example, the OOR has published a form that includes a checkbox for agency
open-records officers with the following language: “I have provided notice
to appropriate third parties and given them an opportunity to object to this
request.” See 43 Pa.B. 6083. Further, using its authority to “[p]rovide
information relating to the implementation and enforcement of” the RTKL,
see 65 P.S. § 67.1310(a)(1), the OOR has issued the following guidance for
agencies, which appears on the OOR’s website:
Does the Right-to-Know Law provide for due process for
agency employees?
Yes. Specifically, Section 502(b)(1) provides that agency open-
records officer must “direct [Right-to-Know Law] requests to
other appropriate persons within the agency,” which includes
affected agency employees. Additionally, Section 707(a)
requires agencies to notify “the person that is the subject of the
record” if releasing a record containing withholdable
information. If additional time is needed to issue a response,
agencies can invoke extensions of time pursuant to Section
902(a)(7). As a result, all agencies must provide due process
considerations to agency employees affected by a Right-to-
Know Law request.
See Open Records Pennsylvania - FAQs,
http://openrecords.state.pa.us/portal/server.pt/community/open_records/4434
/faqs/462051 (last visited July 27, 2015) (emphasis added).
ii. The Public School Code allows PSEA to negotiate the manner
and method of how procedural due process is provided by
school districts
34
The Commonwealth Court erred in not addressing the impact of the
Public School Code (specifically, 24 P.S. § 11-1111-A and 24 P.S. § 11-
1112-A) with respect to PSEA’s procedural due process claims. It cannot be
overlooked that PSEA, as a representative of public school employees, can
play a critical role in developing appropriate “regulations and policies
necessary for” public school districts “to implement” the RTKL, but has
chosen not to. Rather than litigating the issue of when and how public
school employees receive notice and an opportunity to object, PSEA is
empowered by the Public School Code to negotiate the “when” and “how”
of procedural due process with the public school districts with whom PSEA
collectively bargains. See 24 P.S. § 11-1111-A (permitting bargaining over
“terms and conditions” of public employment). Since the RTKL only
affects public employees by virtue of their public employment, the manner
and method of notification to RTKL requests is a “term[] and condition[]” of
public employment. See id. Even if providing procedural due process in the
RTKL context was one of “inherent managerial policy,” PSEA could still
require public school districts “to meet and discuss … policy matters
affecting … terms and conditions of employment as well as the impact
thereon” by merely requesting a meeting. See 24 P.S. § 11-1112-A.
Indisputably, PSEA could have negotiated the very issue it continues to
35
litigate here. The lower court erred by allowing PSEA to proceed with its
claims for declaratory relief when PSEA could have availed itself of this
readily-available statutory relief under the Public School Code.
iii. The OOR provides for procedural due process during the
Appeal Stage
Although the OOR has no authority to regulate matters involving
agencies during the Request Stage and has no knowledge of pending RTKL
requests unless an appeal is filed, the OOR does possess the power to ensure
that procedural due process occurs during the Appeal Stage. See 65 P.S. §
67.504(a) (providing that the OOR may only develop regulations
“regulations relating to appeals”); 65 P.S. § 67.1102(b) (“[The OOR] …
may adopt procedures relating to appeals …”).
During the Appeal Stage, the OOR specifically directs all agencies to
provide notice of RTKL appeals to affected individuals and inform these
individuals of their ability to participate pursuant to 65 P.S. § 67.1101(c).
Every docketed appeal contains the following or similar language:
Agency Must Notify Third Parties: If records contain
personal information of an employee of the agency; contain
confidential, 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.
36
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)).
See Sample Appeal Notification Letter, attached hereto as Exhibit B
(emphasis in original). Additionally, the OOR includes a form entitled
“Request to Participate as Direct Interest Party” with each Official Notice of
Appeal. See Request to Participate as Direct Interest Party, attached hereto
as Exhibit C. Third parties, although not required to do so, regularly use this
form to assert their interests in whatever records are at issue before Chapter
11 Appeals Officers. The OOR has even ordered that such notice be
provided, as needed. See, e.g., Gross v. Pa. Dep’t of Health, OOR Dkt. AP
2013-1595, 2013 PA O.O.R.D. LEXIS 921 (ordering an agency to provide
third party notice of an appeal seeking the names of employees working at
Planned Parenthood’s Harrisburg location).
Although PSEA has argued that third parties cannot appeal the OOR’s
final orders, the Supreme Court has regularly permitted third parties
appearing before the OOR to file appeals. See, e.g., Thirty, Inc. v. Gil Smart
& Lancaster Newspapers, Inc., No. 805 C.D. 2013, 2014 Pa. Commw.
Unpub. LEXIS 235 (Pa. Commw. Ct. April 14, 2014) (unreported) (listing
examples of where the Commonwealth Court has permitted third parties to
appeal under the RTKL and questioning the argument that third parties
37
cannot appeal “in light of the due process concerns that have arisen under
(albeit divergent) caselaw interpreting the new RTKL”). Accordingly, based
on the OOR’s actions during the Appeal Stage, PSEA’s assertions alleging a
lack of procedural due process are meritless.
1. PSEA has not established any harm as a result of a lack of
procedural due process
Assuming, arguendo, that PSEA: 1) established “the presence of a
legitimate ‘property’ or ‘liberty’ interest within the meaning of the Fifth or
Fourteenth Amendment,” Arnett, 416 U.S. at 164; and 2) demonstrated that
it was not provided with procedural due process, PSEA has still not shown
that it has been harmed by the purported lack of procedural due process.
In fact, the pleadings and evidence presented before the lower court
firmly establish that PSEA has regularly been provided with procedural due
process. In its pleadings, for example, PSEA avers that it received notice of
pending RTKL requests from dozens of school districts. See, e.g., R. 447a-
50a, ¶5-18 (stating that PSEA has received notice of pending RTKL requests
from 14 school districts); R. 57a-59a (averring that PSEA has received
notice of pending RTKL requests from 66 additional school districts).
At the July 28, 2009 hearing, PSEA presented testimony establishing
that PSEA and public employees received notice of pending RTKL requests
from school districts. See R. 170a, ln. 18-R. 174a, ln. 24 (testimony of
38
PSEA General Counsel Lynne Wilson, who stated that PSEA “received
notification of a number of requests that were going into school districts”
related to home addresses); R. 188a, ln. 17-18 and R. 192a, ln. 14-19
(testimony of school district solicitor Robert Frankhouser, who stated that he
personally notified PSEA of a request seeking home addresses and that he
advised his school district clients “to immediately notify” PSEA of requests
seeking home addresses); R. 226a, ln.15-22 R. 227a, ln. 12-14 (testimony of
public school employee and Vice President of the Middletown Education
Association Brianna Miller, who affirmed that she received notice of a
RTKL request for home addresses and was given an opportunity to object to
the release of those home addresses); R. 236a, ln 4-9 (testimony of public
school employee and Chief Negotiator for the Phoenixville Area Education
Association Al Reitz, who averred that his local union received notice of a
pending RTKL request and notified him).
Again, at the December 5, 2013 hearing, the Executive Director of the
Pennsylvania Association of School Retirees testified that he received letters
from school districts advising him that they were providing notice to public
school employees with respect to RTKL requests. See R. 748a, ln. 1-13
(testimony of Executive Director of the Pennsylvania Association of School
Retirees Richard Rowland). During the same hearing, PSEA presented
39
testimony from Dr. James Monk, who discussed how requests for employee
information have routinely been denied. See R. 801a, ln. 3-11 (testimony of
Dr. James Monk).
The record in this matter is replete with examples of how PSEA has
received procedural due process with respect to pending RTKL requests.
Even though this litigation has spanned more than six (6) years, PSEA has
not alleged or offered evidence establishing even one example of how it has
been harmed by the implementation of the RTKL during either the Request
Stage or the Appeal Stage.
C. Home addresses are not protected by the constitutional
right to privacy
To the extent that PSEA has hinged its procedural due process claims
upon the existence of a constitutional right to privacy in the home addresses
of public school employees, the Commonwealth Court correctly held that
“there is no constitutional privacy right in one’s home address,” meaning
that the release of a public record containing the home address of a public
school employee does not result in any deprivation of a liberty or privacy
interest as required for the application of procedural due process. Further,
PSEA has not — and could not have — reasonably claimed that PSEA has a
property interest in a school district’s taxpayer-generated public records.
Because PSEA has failed to identify any legitimate property or liberty
40
interest in home addresses contained in public records, PSEA’s procedural
due process claims must be rejected.
With respect to PSEA’s claims concerning whether the constitutional
right to privacy protects home addresses from public access, the
Commonwealth Court faced this identical issue in 2013. In a RTKL case
involving a request for a public employee’s home address, the
Commonwealth Court, en banc, thoroughly analyzed case law under the
former RTKL, 65 Pa.C.S. §§ 66.1, et seq. (repealed), (“Old Law”) and
explicitly held that “there is no constitutional privacy right in one’s home
address.” Office of the Lieutenant Governor v. Mohn, 67 A.3d 123, 131 (Pa.
Commw. Ct. 2013). Issued the same day, the Commonwealth Court issued
another en banc decision following Mohn and reiterating that there 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…” Office of the Governor v. Raffle, 65 A.3d 1105, 1109
(Pa. Commw. Ct. 2013).
Similarly, in Commonwealth v. Cole, the Commonwealth Court was
not persuaded by the Pennsylvania Department of Environmental
Protection’s argument that home addresses of recipients of a specific rebate
program were “protected by Section 708 of the Right-to-Know Law, 65 P.S.
41
§67.708, and the individuals’ constitutional right to privacy.” 52 A.3d
541, 551 (Pa. Commw. Ct. 2012) (emphasis added). The Court rejected the
agency’s constitutional claims and statutory arguments related to home
addresses because the rebate recipients were aware that their rebate
applications submitted to a public agency were subject to public access. Id.
at 552. Accordingly Cole, like Mohn and Raffle, dismissed assertions of a
constitutional right to privacy in a home address and should be followed by
this Court.
Additionally, in a persuasive single-judge opinion that was affirmed
per curiam by this Court, the Commonwealth Court examined claims
concerning whether the constitutional right to privacy protects a home
address from release and held that “there is no constitutional right to privacy
in one’s home address under the Pennsylvania Constitution.” See Marin v.
Sec’y of Pa., 41 A.3d 913 (Pa. Commw. Ct. 2012), aff’d 66 A.3d 250 (Pa.
2013) (per curium).
The Commonwealth Court has also favorably cited this Court’s
decision in Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003). See, e.g.,
Mohn, 67 A.3d at 129-30; Pa. Soc. Servs. Union, Local 688 v.
Commonwealth, 59 A.3d 1136, 1144 (Pa. Commw. Ct. 2012) (citing Duncan
42
in a civil matter involving the availability of records under the RTKL);
Marin, 41 A.3d at 915-16. In Duncan, this Court stated that:
we agree with the Commonwealth that any subjective
expectation of privacy that appellant may have had in the name
and address information is not an expectation which society
would be willing to recognize as objectively reasonable in
light of the realities of our modern age. Whether registering
to vote, applying for a driver’s license, applying for a job,
opening a bank account, paying taxes, etc., it is all but
impossible to live in our current society without repeated
disclosure of one’s name and address, both privately and
publicly. There is nothing nefarious in such disclosures. An
individual’s name and address, by themselves, reveal nothing
about one’s personal, private affairs. Names and addresses are
generally available in telephone directories, property rolls,
voter rolls, and other publications open to public inspection.
In addition, it has become increasingly common for both the
government and private companies to share or sell name and
address information to unaffiliated third-parties....
In this day and age where people routinely disclose their names
and addresses to all manner of public and private entities, this
information often appears in government records, telephone
directories and numerous other documents that are readily
accessible to the public, and where customer lists are regularly
sold to marketing firms and other businesses, an individual
cannot reasonably expect that his identity and home address
will remain secret -- especially where, as here, he takes no
specific action to have his information treated differently and
more privately.
We are further convinced of the correctness of our conclusion
that no privacy expectation reposes in this information by the
fact that the majority of courts to consider the question have
agreed that a person’s name and address is not information
about which a person can have a reasonable expectation of
privacy.
43
Duncan, 817 A.2d at 459 (emphasis added); id. at 458 (“[T]here is a
fundamental difference between the type of information that is subject to a
constitutionally protected right to privacy and a person’s identification
information, i.e., one’s name and address”) (quoting the Honorable Kate
Ford Elliott); see also County of York v. Office of Open Records, 13 A.3d
594, 597 n.6 (Pa. Commw. Ct. 2011) (granting access to cross-street
information and finding that any constitutional privacy concerns related to
the release of addresses were waived).
The Commonwealth Court has explicitly cited Duncan in, as here, an
original jurisdiction matter seeking to prevent the release of certain records
under the RTKL due to the constitutional right to privacy in Mohn and Pa.
Soc. Servs. Union, Local 688, properly making no arbitrary distinction
between criminal and civil contexts. See Mohn, 67 A.3d at 129-30; Pa. Soc.
Servs. Union, Local 688, 59 A.3d at 1144; see also Marin, 41 A.3d at 915-
16. Because of the decisions of Mohn, Raffle, Cole and Duncan, this Court
should follow this reasoned analysis by affirming the Commonwealth
Court’s holding that home addresses are not protected by the constitutional
right to privacy.
2. PSEA has rendered this matter moot and, to the extent
that the right to privacy protects home addresses from
public access, PSEA has waived such a right
44
While PSEA alleges the release of the home addresses of its members
would be detrimental, there is no evidence to support such a bald contention.
In fact, PSEA, by knowingly and voluntarily releasing the home addresses of
its named petitioners multiple times during the course of this litigation, has
demonstrated the opposite — that no harm has occurred despite public
availability of these home addresses. In Paragraphs 5-18 of its original
Petition for Review, for example, PSEA published the addresses of the
individual Petitioners and, in Paragraphs 112 and 116 of PSEA’s November
28, 2012 Answer to New Matter, PSEA specifically acknowledges
publishing these addresses, stating “It is admitted that the individual
petitioners have set forth their home addresses in the referenced paragraphs.”
See R. 3a-7a, ¶5-18; see also R. 693a, ¶189 (“The home addresses of
individual petitioners are stated in the original Petition for Review”).
At the preliminary injunction hearing held July 28, 2009, PSEA again
publically disclosed the home address of one of its members:
MR. SCOTT: … We would next call Brianna Miller, who’s one
of the petitioners.
….
Q Ms. Miller, although it is somewhat incongruous in the
context of these proceedings, would you please give your
residence address and indicate by whom you’re employed?
A 3010 Duke Street, Harrisburg, Pennsylvania. And am
employed at the Middletown Area School District.
45
See R. 225a, ln. 2-15. PSEA was not required to disclose home addresses of
its members pursuant to Pa.R.C.P. 205.1 through Pa.R.C.P. 440(a), but
chose to, undermining any allegations of harm with respect to its members.
There is no dispute that home addresses of PSEA members have been
repeatedly disclosed
on a number of public records and in a number of settings, such
as when registering to vote (25 Pa.C.S. § 1207(a)); by filing
statements of financial interest (65 P.S. § 1104(e)); by getting
married (23 Pa.C.S. §§ 1302-1309 (marriage licenses must list
the residence of each applicant and “shall be immediately filed
and docketed as public records”)); by applying for employment
and by owning property, among many other settings.
See OOR’s November 8, 2012 Answer and New Matter, ¶114. Instead,
PSEA argues that “there is a substantial difference between providing one’s
home address on a government required form in order to secure something
from government, or to satisfy a legitimate governmental requirement, and
having that same address disseminated by a governmental employer…” See
PSEA’s November 12, 2012 Answer to New Matter, ¶114. In other words,
PSEA acknowledged that its members have repeatedly disclosed their home
addresses to governmental entities in a number of forms readily accessible to
public access, but, rather than objecting to the release of their home
addresses in that context, merely objects to the release of this information by
nonparty school district employers with whom they could collectively
46
bargain under 24 P.S. § 11-1111-A. See generally Cole, 52 A.3d at 551-52
(holding that home addresses on a government-required form were subject to
public access despite allegations that the constitutional right to privacy
prevented the release of the home addresses).
Logic cannot bridge the gap of PSEA’s theory that the constitutional
right to privacy only protects public school employees’ home addresses
when in the hands of public school districts, rather than when held by other
governmental agencies or members of the public. Because PSEA has
voluntarily released the very home addresses it seeks to protect, it has
rendered this matter moot. See R. 460a, ¶62-63 (“Once personal information
is released it cannot be recalled… Once the personal right of privacy has
been violated it cannot be restored”).
While there exists no constitutional right to privacy in a home address,
PSEA waived any asserted claims by releasing the home addresses of its
members during the course of this litigation and through the ordinary
societal activities of its members. See generally Duncan 817 A.2d at 458-59
(discussing examples of routine disclosures of home addresses). As the
Commonwealth Court held in Cole, when an individual knowingly discloses
his or her address to a public agency on a record known to be subject to
public access without raising any concerns, that individual has waived any
47
objection to the release of that information. 52 A.3d at 551-52; see also
Mohn, 67 A.3d at 131 (holding that home addresses are not protected by the
constitutional right to privacy); Raffle, 65 A.3d at 1109 (stating that there 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”). Here, PSEA has released some of its members’ addresses
in its Petition for Review and at the preliminary injunction hearing and does
not dispute that its members have disclosed their home addresses on a wide-
variety of public records. Accordingly, even if the protections of the
constitutional right to privacy could protect a home address from public
knowledge, PSEA has waived such a right through its own disclosures.
As case law has firmly established that there is no constitutional right
to privacy in a home address, PSEA has failed to demonstrate that public
school employees must be afforded procedural due process when public
records containing their home addresses are requested. Even if, arguendo,
PSEA’s claims are worthy of constitutional consideration, the lower court’s
opinion should be reversed with respect to its holding regarding due process
because the RTKL explicitly provides for procedural due process when
warranted and delegates the mechanics to individual agencies during the
Request Stage. Accordingly, this Court should affirm the Commonwealth
48
Court to the extent that it held that home addresses are not protected by the
constitutional right to privacy and reverse the lower court’s opinion as it
relates to procedural due process.
D. The lower court erred in ordering relief against agencies over
which it lacked jurisdiction
By ordering relief against school districts across the Commonwealth
that have not been named parties to PSEA’s Petition for Review, the lower
court’s opinion violates the Declaratory Judgment Act, 42 Pa.C.S. §§ 7531-
7541. Specifically, the lower court ordered that
public school districts are enjoined from disclosing those
records maintained by the public school districts, which contain
the home addresses of public school employees, pursuant to a
RTKL request until the affected employees have had written
notice and a meaningful opportunity to object at the request
stage to the disclosure of their home addresses based on, but not
limited to, the personal security exemption set forth in Section
708(b)(1)(ii) of the RTKL…
PSEA IV, 110 A.3d at 1088. Although the Commonwealth Court granted
PSEA’s Amended Petition for Review by ordering public school districts to
provide for procedural due process, PSEA did not name or seek to join even
a single school district as a defendant to its action seeking declaratory relief,
even though PSEA sought relief directly impacting all school districts across
the Commonwealth.
The Declaratory Judgments Act requires that
49
When declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be affected
by the declaration, and no declaration shall prejudice the rights
of persons not parties to the proceeding.
42 Pa.C.S. § 7540. The impact of the lower court’s notice requirement
sought by PSEA cannot be overstated, as it requires school districts to
expend scant resources in administrative and personnel costs by mailing
individualized notices in response to each and every RTKL request and
appeal. See, e.g., Pennsylvanians for Union Reform, Inc. v. State Empl.
Retire. Sys., OOR Dkt. AP 2013-1830, 2014 PA O.O.R.D. LEXIS 99 (noting
that SERS calculated the cost of providing notice of just one RTKL appeal at
$90,000), aff’d in part 113 A.3d 9 (Pa. Commw. Ct. 2015). Indeed, based
on the Commonwealth Court’s declaration “that an agency, as defined in the
RTKL, is prohibited from granting access to an individual’s personal address
information without” providing procedural due process, this decision affects
how every agency in this Commonwealth uses its financial and personnel
resources in order to provide procedural due process. See, e.g.,
Pennsylvanians for Union Reform v. Millersville University, OOR Dkt. AP
2015-0530, 2015 PA O.O.R.D. LEXIS 668 (noting that an agency provided
notice of a request to all 1,065 of its employees and that only 195 were
withheld under 65 P.S. § 67.708(b)(6)(i)(C) or 65 P.S. § 67.708(b)(1)(ii)).
50
By requiring non-party public school districts to spend money mailing
notices of RTKL requests to agency employees, the Commonwealth Court
erred by granting the relief sought by PSEA when PSEA did not name any
school districts as parties to either its original or amended Petition for
Review as required by 42 Pa.C.S. § 7540. See generally R. 1a-69a; R. 445a-
75a.
51
VIII. CONCLUSION
For the foregoing reasons, the OOR respectfully asks this Honorable
Court to 1) affirm the Commonwealth Court’s holding that home addresses
are not protected by the constitutional right to privacy; and 2) reverse the
Commonwealth Court’s finding that procedural due process is invariably
required in response to RTKL requests seeking home addresses.
Respectfully submitted,
By: /s/ Charles Rees Brown
Charles Rees Brown, Esq.
Chief Counsel
Office of Open Records
Supreme Court I.D. Number 70612
/s/ J. Chadwick Schnee
J. Chadwick Schnee, Esq.
Assistant Chief Counsel
Office of Open Records
Supreme Court I.D. Number 306907
Keystone Building, Plaza Level
400 North St
Harrisburg, PA 17120-0225
T: (717) 346-9903; F: (717) 425-5343
For the Office of Open Records and Terry
Mutchler, Appellees/Cross-Appellants
DATE: August 9, 2015
IN THE SUPREME COURT OF PENNSYLVANIA,
MIDDLE DISTRICT
THE PENNSYLVANIA STATE EDUCATION :
ASSOCIATION, BY LYNNE WILSON, GENERAL :
COUNSEL, WILLIAM McGILL, F. DARLENE :
ALBAUGH, HEATHER KOLANICH, WAYNE :
DAVENPORT FREDRICK SMITH, JAMIE McPOYLE, :
BRIANNA MILLER, VALERIE BROWN, :
JANET LAYTON, KORRI BROWN, AL REITZ, :
LISA LANG, BRAD GROUP, AND :
RANDALL SOVISKY, :
Appellants/Cross-Appellees, :
v. :No. 22 MAP 2015
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF COMMUNITY AND :
ECONOMIC DEVELOPMENT, OFFICE OF :
OPEN RECORDS, AND TERRY MUTCHLER, :
EXECUTIVE DIRECTOR OF THE OFFICE :
Of OPEN RECORDS, :
Appellees/Cross-Appellants, :
:
and :
:
PENNSYLVANIA ASSOCIATION OF SCHOOL :
RETIREES, URENEUS V. KIRKWOOD, JOHN B. :
NYE, STEPHEN M. VAK, AND RICHARD :
ROWLAND AND SIMON CAMPBELL, :
Intervenors. :
_____________________________________________________________
CERTIFICATE OF COMPLIANCE
I hereby certify that the attached brief complies with the word count limits
set forth under Pa.R.A.P. 2135.
/s/ J. Chadwick Schnee
J. Chadwick Schnee, Esq.
Assistant Chief Counsel
Office of Open Records
Supreme Court I.D. Number 306907
Keystone Building, Plaza Level
400 North St
Harrisburg, PA 17120-0225
T: (717) 346-9903; F: (717) 425-5343
For the Office of Open Records and Terry
Mutchler, Appellees/Cross-Appellants
DATE: August 9, 2015
