Sovisky v. Commonwealth Of Pa.

• Decision Date: 24 September 2010
• Citation: 4 A.3d 1156
• Parties: The PENNSYLVANIA STATE EDUCATION ASSOCIATION, By Lynne WILSON, General Counsel, William McGill, F. Darlene Albaugh, Heather Kolanich, Wayne Davenport, Frederick Smith, Jamie McPoyle, Brianna Miller, Valerie Brown, Janet Layton, Korri Brown, Al Reitz, Lisa Lang, Brad Group and Randall Sovisky, Petitioners 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, Respondents.
• Court: Pennsylvania Commonwealth Court

4 A.3d 1156

The PENNSYLVANIA STATE EDUCATION ASSOCIATION, By Lynne WILSON, General Counsel, William McGill, F. Darlene Albaugh, Heather Kolanich, Wayne Davenport, Frederick Smith, Jamie McPoyle, Brianna Miller, Valerie Brown, Janet Layton, Korri Brown, Al Reitz, Lisa Lang, Brad Group and Randall Sovisky, Petitioners

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, Respondents.

Commonwealth Court of Pennsylvania.

Argued March 17, 2010.

Decided Sept. 24, 2010.

Thomas W. Scott and Katherine Voye, Harrisburg, for petitioners.

Lucinda C. Glinn, Harrisburg, for respondents, Office of Open Records and Terry Mutchler.

William W. Warren, Jr., Harrisburg, for intervenor, PA Association of School Retirees.

James W. Young, Springfield, VA, for intervenor, Simon Campbell.

BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and PELLEGRINI, Judge, and LEAVITT, Judge, and BROBSON, Judge, and McCULLOUGH, Judge, and BUTLER, Judge.

OPINION BY Judge LEAVITT.

The Pennsylvania State Education Association (PSEA) petitions this court for a judgment declaring the home addresses of public school employees to be exempt from disclosure under the Right-to-Know Law ¹ and enjoining the Office of Open Records from permitting their disclosure. In response, the Office of Open Records has filed preliminary objections seeking to have the action dismissed for lack of jurisdiction and for failure to state a cause of action. In essence, the Office of Open Records contends that the statutory procedure for resolving disputes arising from document requests made under the Right-to-Know Law is exclusive and bars PSEA's attempt to seek declaratory and equitable relief.

Background

We begin with a procedural history of this case. Shortly after the enactment of the 2009 version of the Right-to-Know Law, PSEA requested an advisory opinion from the Office of Open Records that a public school employee's home address is exempt from disclosure under the Right-to-Know Law. Petition for Review, ¶ 44. The Office of Open Records responded, after some delay, that PSEA's request was moot because the Office had already made several determinations holding, generally, that the home addresses of public employees, including those employed by school districts, were not exempt from disclosure. Petition for Review, ¶ 49.

PSEA then filed the instant petition for review. It asserted that numerous school districts had received requests for the names and addresses of public school employees, and some had already released this information. Petition for Review, ¶¶ 92-93. Contending that the public school employee members of PSEA lacked any adequate remedy of law to prevent the release of private information protected by the Pennsylvania Constitution, PSEA sought to enjoin the Office of Open Records from continuing to sanction a violation of the “right to privacy of every ... public school employee....” Petition for Review, ¶ 91. PSEA's theory is that the Right-to-Know Law can be construed to exempt the disclosure of public school employees' addresses or, alternatively, must be so construed lest the statute interfere with the right of privacy conferred upon public school employees by the Pennsylvania Constitution.

With its complaint, PSEA filed an application for a preliminary injunction to prevent the Office of Open Records from directing any school to release the addresses of public school employees, pending the outcome of a decision on the merits of its request for permanent injunctive relief. ² On July 28, 2009, after a hearing, this Court granted the request for a preliminary injunction. Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, Office of Open Records, 981 A.2d 383 (Pa.Cmwlth.2009). On August 17, 2010, the Pennsylvania Supreme Court affirmed this Court's order, without prejudice to any party's right to appeal a final disposition of the present action. Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, Office of Open Records, --- Pa. ----, 2 A.3d 558 (2010).

On August 6, 2009, the Office of Open Records filed preliminary objections to PSEA's petition for review, seeking the petition's dismissal on several grounds. First, the Office of Open Records contends that this Court lacks subject matter jurisdiction. It contends that the statutory remedy in the Right-to-Know Law is exclusive and deprives this Court of jurisdiction over PSEA's request for declaratory relief. Second, it asserts that PSEA and its members lack standing because the alleged harm is speculative at best and not immediate, direct and substantial. Third, it asserts that the petition for review fails to state a cause of action because neither the Right-to-Know Law nor the Pennsylvania Constitution has established a blanket right in every public school employee to have his address kept private. Such rights, if any, can only be determined on a case-by-case basis, depending on the circumstances of the individual employee.

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations, as well as all inferences reasonably deducible therefrom. Pennsylvania Chiropractic Federation v. Foster, 136 Pa.Cmwlth. 465, 583 A.2d 844, 847 (1990). Preliminary objections will be sustained where, assuming the truth of the facts as pled, it is clear that the law does not permit recovery. Stilp v. Cappy, 931 A.2d 108, 110 (Pa.Cmwlth.2007).

Right-to-Know Law

The 1957 version of the Right-to-Know Law ³ placed the burden on the requester to prove that the requested record was a public record. See Rowland v. Public School Employees' Retirement System, 885 A.2d 621, 627 (Pa.Cmwlth.2005); Section 2 of the prior Right-to-Know Law, formerly 65 P.S. § 66.2. ⁴ The former law defined “public record” to exclude those records that “would operate to the prejudice or impairment of a person's reputation or personal security.” Section 1(2) of the prior Right-to-Know Law, formerly 65 P.S. § 66.1(2). This Court interpreted that statutory definition “as creating a privacy exception to the Right-to-Know Law's general rule of disclosure.” Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897, 905 (Pa.Cmwlth.2006). When considering this “privacy exception,” we applied a balancing test that weighed the privacy interests at issue against the public benefits to follow from the disclosure of the document in question. Id. at 906. Generally, home addresses were exempted from disclosure under this balancing test, but the right to privacy in one's home address was never absolute. See Goppelt v. City of Philadelphia Revenue Department, 841 A.2d 599, 606 (Pa.Cmwlth.2004) (allowing the disclosure of delinquent taxpayers' addresses because it benefitted the public).

The current Right-to-Know Law became effective on January 1, 2009, and it differs from the 1957 version in two ways critical to PSEA's petition for review. First, all records held by an agency are now presumed to be public records. ⁵ Second, the language and scope of the “personal security” exemption has changed.

Beginning with the second of these key differences, the Right-to-Know Law now exempts the disclosure of a record that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” Section 708(b)(1)(ii) of the Right-to-Know Law, 65 P.S. § 67.708(b)(1)(ii). This standard is harder to satisfy than was the personal security exemption in the former law, which exempted the disclosure of a record that “would operate to the prejudice or impairment of a person's reputation or personal security.” Section 1(2) of the former Right-to-Know Law, formerly 65 P.S. § 66.1(2). Notably, the current Right-to-Know Law requires a risk of physical harm to an individual and does not aim to protect an individual's reputation.

The new Right-to-Know Law also expands the meaning of a “public record” by establishing a presumption that every record of a state or local agency is a public record. Section 102 of the Right-to-Know Law, 65 P.S. § 67.102. At the same time, the Law creates exemptions for certain information often contained in a public record. Specifically, Section 708(b)(6)(i)(A)-(C) identifies exemptions for the following information:

(A) A record containing all or part of a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number.

(B) A spouse's name, marital status or beneficiary or dependent information.

(C) The home address of a law enforcement officer or judge.

65 P.S. § 67.708(b)(6)(i)(A)-(C). Notably, subsection (C) prevents the disclosure of home addresses for judges and law enforcement officers, but it is silent as to other state employees.

Finally, the new Right-to-Know Law provides that disclosure of a record will not be required where disclosure would violate another State or Federal law. Section 3101.1 states:

If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.

65 P.S. § 67.3101.1.

Positions of Parties

PSEA argues that there is a right to privacy implicit in Article I, Sections 1 ⁶ and 8 ⁷ of the Pennsylvania Constitution that prohibits the disclosure of any teacher's home address. In other words, PSEA begins with the premise that to be constitutional, the Right-to-Know Law must be read to prohibit disclosure of teacher addresses. From this premise, PSEA makes two points.

First, PSEA argues that Section 708(b)(6)(i)(A) must be given the same effect as the personal security exemption in the 1957 version of the Right-to-Know Law....