Public school entities are local agencies subject Pennsylvania’s Right-to-Know Law (RTKL) Your Open Records Officer (ORO) or the attorney advising OROs, in addition to determining what explicit RTKL provisions might apply to a request must always assess whether a RTKL request seeks information that would divulge private personal information about individual Pennsylvania citizens. Sometimes it is obvious that, although personal, the information sought is not sufficiently personal to any individual to cause concern. At that point, agencies will follow the provisions of the RTKL alone. Other times, information sought raises privacy concerns under the Pennsylvania Constitution and a different procedure applies.
Upon a determination that the information requested might be private to individuals, it is always best practice to notify potentially affected individuals about the request and to give them a reasonable opportunity to timely raise any and all legal objections they have to release of requested information including their constitutional right to privacy, as well as any personal security concerns they may have. At the same time, the ORO or agency attorney should attempt to find out from the requester what the requester believes is the public interest in disclosure that would outweigh an individual’s constitutional right to privacy. Armed with this information, the ORO, with the advice of an attorney when needed, must perform a balancing test established by Pennsylvania courts before deciding whether to release this requested information. In performing this test, it is relevant that the General Assembly has made a given record public, whether via the RTKL or some other statute. Often it is obvious that there is legislative intent to make particular information publicly accessible and that this decision by the General Assembly outweighs individual privacy interests. However, a case which was just decided by Commonwealth Court reminds us that sometimes an individual’s constitutional right to privacy outweighs even explicit statutory language.
On Jan. 24, 2019, Pennsylvania Commonwealth Court unanimously reminded agencies subject to Pennsylvania’s RTKL that they cannot violate individual Pennsylvanians’ constitutional right to privacy in responding to a RTKL request. Agencies may not disclose anyone’s personal information unless they perform a balancing test to weigh, “…privacy interests and the extent to which they may be invaded against the public benefit which would result from disclosure,” and then make a determination that the public benefit outweighs the presumption of privacy. Governor’s Office of Administration v. Campbell, No. 103 C.D. 2017, 2019 WL 302355 (Pa. Cmwlth. 2019) (OA). The Court noted that even where a different statute makes certain information expressly public, this does not relieve agencies of a responsibility to balance constitutional privacy interests in the information against public interest in knowing the information. (citing, Reese v. Pennsylvanians for Union Reform, 173 A. 3d 1143 (Pa. 2017) which found that the Administrative Codes’ provisions making certain commonwealth employee information public must be read in conjunction with the Pennsylvania Constitution and a balancing test is required, independently of what the RTKL may permit or require.)
OROs and agency counsel should ask themselves, “how does this intrusion into an individual’s privacy rights give insight into government operations and decision-making as envisioned by the RTKL?” In the OA case, Commonwealth Court held the that commonwealth employees’ counties of residence are personal information that trigger the requirement that an agency balance privacy versus public interests. The agency had in fact argued this to the Office of Open Records (OOR) noting this information is only in the commonwealth’s possession in its role as an employer that must provide information to taxing authorities and ascertain the benefits due to employees that may differ county to county. OA asserted that the best practice in the human resources industry is to protect confidentiality of personnel records. All of this was supported by a sworn affidavit of the human resources officer. Although OOR could have accepted OA’s balancing test conclusion or performed its own balancing test, it found this information was not private in nature. The Court disagreed. It exercised its discretion to perform the balancing test and reversed OOR. It found that disclosure of commonwealth employees’ counties of residence “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.’” Governor’s Office of Administration v. Campbell, supra.
These cases do not necessarily stand for the proposition that all home addresses or everything about a given individual’s home address is per se private. Responses to requests for home addresses must always balance the right to privacy against the public interests in disclosure. However, it is notable that courts have focused on the purpose of the RTKL in balancing these interests. OOR and the courts want to know, when personal information is involved, how disclosure furthers a public interest in disclosure even when a requester suggests there is a public interest. Under these cases, the risk related to violation of individuals’ constitutional right to privacy as well as potential harm to people whose information is disclosed is significant and calls for agencies to take the time to (1) assess the nature of the information sought; (2) find out the public interest in disclosure of private information; (3) balance the interests and (4) only then respond to a RTKL request.