Rowland v. Com.

• Decision Date: 24 October 2005
• Citation: 885 A.2d 621
• Parties: Richard ROWLAND, Executive Director, Pennsylvania Association of School Retirees, Petitioner v. COMMONWEALTH of Pennsylvania, PUBLIC SCHOOL EMPLOYEES' RETIREMENT SYSTEM, Respondent.
• Court: Pennsylvania Commonwealth Court

885 A.2d 621

Richard ROWLAND, Executive Director, Pennsylvania Association of School Retirees, Petitioner v. COMMONWEALTH of Pennsylvania, PUBLIC SCHOOL EMPLOYEES' RETIREMENT SYSTEM, Respondent.

Commonwealth Court of Pennsylvania.

Argued September 12, 2005.

Decided October 24, 2005.

William W. Warren, Jr. and Edward G. Lanza, Harrisburg, for petitioner.

Gerald Gornish, Chief Counsel, Harrisburg, for respondent.

BEFORE: McGINLEY, Judge, and LEAVITT, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge LEAVITT.

Richard Rowland, Executive Director of the Pennsylvania Association of School Retirees (Association), petitions for review of a final decision of the Public School Employees' Retirement System (PSERS) denying his request for the addresses, dates of birth and last employer of each PSERS annuitant. Rowland requested the information pursuant to the statute commonly referred to as the Right-to-Know Law.¹ At issue in this case is whether PSERS may refuse to disclose documents that contain this information because disclosure would violate members' rights to privacy and confidentiality.

The Association is a volunteer membership organization with over 40,000 members who are former public school employees. Its primary functions, as described by Rowland, are to serve and promote the social and economic needs of its members, to promote improvements in the public education system of the Commonwealth and to promote community service through member volunteer efforts. Notes of Testimony, December 2, 2004, at 10 (N.T. ___). The Association accomplishes these goals through lobbying efforts, which, for example, have been instrumental in securing cost of living adjustments for retired school employees. The Association also provides its members with opportunities to save on different services and programs that it endorses, such as group insurance.

PSERS is an agency of the Commonwealth charged with administering the pension fund for the Commonwealth's public school employees and retirees. Since at least 1987, it has been the practice of PSERS to produce a report for its trustees, the Public School Employees' Retirement Board (Board), in advance of each Board meeting. This report, which identified new retirees, their addresses, social security numbers and retirement dates, was generated so that the Board could approve prospective retirees for retirement benefits.

On December 13, 1994, the Board adopted a "Policy on Public Information" to establish the protocols for fulfilling requests for records that are public under the Right-to-Know Law. With respect to requests for information about pension benefits, the Policy on Public Information provides that personal information about members should not be disclosed. It states, specifically, as follows:

The Retirement Code requires the Board to "protect the rights of its membership as to privacy and confidentiality." 24 Pa.C.S. § 8502(i). The [Right-to-Know Law] expressly prohibits release of information that would impair a member's reputation or personal security.... In addition, a member has a privacy interest guaranteed by the Pennsylvania Constitution in avoiding disclosure of personal matters.... Therefore, in responding to requests for records that contain members' personal information, PSERS will follow the balancing test adopted in Times Publishing Co. v. Michel, 159 Pa.Cmwlth. 398, 633 A.2d 1233 (1993), appeal denied, 538 Pa. 618, 645 A.2d 1321 (1994), and will release the records only if the benefits of releasing the information outweigh the individual's privacy interest.

Reproduced Record at 51a (R.R. ___) (citations omitted). The Policy on Public Information identifies specific examples of public and non-public information. Examples of non-public information are the addresses and dates of birth of active and non-active members of PSERS.²

Notwithstanding the adoption of the foregoing policy, some members of the Board shared their meeting reports with the Association. In addition, some staff persons at PSERS regularly provided a list of deceased PSERS members to the Association, so that the Association could update its records. This sharing of information was done informally and was never officially sanctioned by PSERS. When the current Executive Director of PSERS, Jeffrey B. Clay, became aware that non-public information was being disseminated in contravention of PSERS' Policy on Public Information, the meeting reports issued to the Board were revised to identify only the names of the new retirees and their retirement dates. Mr. Clay also instructed PSERS staff members to stop providing information on deceased members to the Association.

On July 6, 2004, Rowland submitted the following written request to PSERS:

In accordance with the Commonwealth's Right-to-Know Law (RTKL) and PSERS' Public Information Policy, I wish to obtain data from PSERS' annuitant member accounts. Specifically, I am requesting the following information for all PSERS annuitants:

Name Address Date of Birth Date of Retirement Years of Credited Service Last Employer Reported Current Monthly Annuity

R.R. 54a. This was the first time that a representative of the Association had made a formal request to PSERS for information under the Right-to-Know Law.

PSERS granted in part and denied in part Rowland's request. PSERS provided to Rowland, in electronic format, the names of retirees, their dates of retirement, years of credited service and monthly annuity. PSERS denied Rowland's request for address and date of birth information on three grounds: (1) such data does not fall within the definition of "public record" under the Right-to-Know Law; (2) PSERS is required under Section 8502(i) of the Public School Employees' Retirement Code, 24 Pa.C.S. § 8502(i), to protect its members' right to privacy and confidentiality; and (3) PSERS does not maintain a list of its retired members' addresses and dates of birth. PSERS also denied Rowland's request for the last employer reported by its annuitants since PSERS does not have a document that contains that information. Rowland filed exceptions, and the parties proceeded to a hearing before a PSERS hearing officer. PSERS' Executive Director Clay testified that the only document maintained by PSERS that includes an annuitant's address, date of birth and last employer is the retirement application that is submitted at the time of retirement. When PSERS receives a retirement application, it is indexed by social security number as the internal identifier of the member, and imaged for PSERS' data files. The application is also indexed by document type, which is known as the "front-end package." In addition to the application, the front-end package includes an initial benefit letter that advises the retiree of his or her monthly benefit and a front-end benefit check.³ Clay also explained that, in order for a PSERS employee to retrieve a retirement application from PSERS' storage system, the employee would have to access the front-end package in the imaged data files, retrieve the application and convert it to paper. Retrieving the initial benefit letter would entail the same procedure, although Clay testified that that document probably does not contain a member's date of birth. Because PSERS does not currently maintain a report listing the address, date of birth and last employer of each annuitant, it would have to prepare a new report to fulfill Rowland's request. PSERS has no need for such a report.

In response, Rowland testified about the Board's history of sharing annuitant information with the Association and also about the Association's mission. It is an organization that delivers important benefits to all retired public school employees whether or not they are members of the Association. Finally, Rowland presented evidence on what annuitant information is in the possession of PSERS. Because the Association relies heavily on the annuitant information previously obtained from PSERS, Rowland predicts that loss of this information will jeopardize its very existence.

Following the hearing, the hearing officer certified the record to the designated PSERS Right-to-Know Law Exceptions Official. The Exceptions Official issued a final determination affirming PSERS' denial of Rowland's request, which she noted had changed in the course of the hearing. Rowland's formal written request was for specific "data," not for specific documents. In his post-hearing briefs, however, Rowland claimed that he was seeking access to PSERS' "benefit decisions," namely the documents contained in the front-end package. This change was, in itself, grounds for dismissal of Rowland's exceptions.⁴ Nevertheless, the Exceptions Official considered the merits of Rowland's exceptions.

The Exceptions Official rejected Rowland's request for "benefit decisions" and related documents for three reasons. First, the only document in the front-end package that constitutes a decision of PSERS is the initial benefit letter, which explains how the annuity will be disbursed. This letter does not contain the member's date of birth. Second, the address and date of birth of the recipient is not an essential component of PSERS' decision to fix a retiree's benefit. Third, assuming, arguendo, that annuitant addresses and dates of birth are public records within the meaning of the Right-to-Know Law, in order to make this information available to Rowland, PSERS' staff would have to access the imaged data files of over 140,000 retirees and compile a report for which PSERS has no need. Rowland now appeals from the final determination of the Exceptions Official.⁵

Rowland raises several issues on appeal that may be summarized as follows. He argues that the Exceptions Official erred in finding that the documents sought, and the data contained therein regarding address, date of birth and last employer reported, do not constitute "public records" under the Right-to-Know Law. Rowland contends that,...