Department of Conservation & Natural Resources v. Office of Open Records

1 A.3d 929, 2010 Pa. Commw. LEXIS 722, 2010 WL 3157170
CourtCommonwealth Court of Pennsylvania
DecidedMay 24, 2010
Docket1165 C.D. 2009, No. 1209 C.D. 2009, No. 1557 C. D. 2009
StatusPublished
Cited by19 cases

This text of 1 A.3d 929 (Department of Conservation & Natural Resources v. Office of Open Records) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Conservation & Natural Resources v. Office of Open Records, 1 A.3d 929, 2010 Pa. Commw. LEXIS 722, 2010 WL 3157170 (Pa. Ct. App. 2010).

Opinions

OPINION BY

Judge BROBSON.

I. INTRODUCTION

In these consolidated appeals,1 three Commonwealth agencies — the Office of the Budget (Budget), the Department of Conservation and Natural Resources (DCNR), and the Department of General Services (DGS) (collectively, Agencies) — seek our review of separate but related decisions by the Office of Open Records (Open Records) pursuant to our statutory jurisdiction under the Right-to-Know Law (RTKL).2

The records at issue are certified payroll records of third-party contractors who entered into contracts with the Commonwealth of Pennsylvania for public projects. The certified payroll records of these nongovernmental employers contain information relating to each of the contractors’ employees who worked on the particular public project, such as each employee’s name, social security number, home address, hourly rate of pay, gross amount of wages earned, number of hours worked, amount deducted from gross pay for taxes and/or benefits, and net pay.3 In response to RTKL requests for copies of these certified payroll records, the Agencies produced only redacted versions of the certified payrolls. The requesters challenged the Agencies’ productions, and Open Records appeals officers directed the Agencies to release un-redacted copies of the certified payroll records.

Having reviewed the record in these consolidated appeals as a whole, and based on the findings of fact and conclusions of law set forth below, we reverse the final determinations of the Open Records appeals officers.

II. FACTS AND PROCEDURAL POSTURE

A. DCNR v. Office of Open Records (Gribbin)

On April 17, 2009, Thomas M. Gribbin, Sr. (Gribbin) requested4 the release of all [932]*932certified payroll records submitted by contractor Marion Hill Associates, Inc. and all subcontractors that had been working on a construction project identified in Gribbin’s request as “Marina Dock Rehabilitation.” DCNR responded by letter dated April 24, 2009, enclosing redacted copies of the requested records. DCNR redacted the Social Security numbers and home addresses of the contractors’ employees, taking the position that this information was exempt under the RTKL. The letter further informed Gribbin that he had a right to appeal the response to Open Records because of the redactions.

On April 27, 2009, Gribbin sent a letter to Open Records, identical to his original request for documents. By a second letter to Open Records dated April 28, 2009, Gribbin indicated that he wished to appeal DCNR’s April 24th decision to produce only redacted copies of the certified payroll records.5 Open Records sent a letter to Gribbin and DCNR on May 1, 2009, describing the process Open Records uses to evaluate appeals, including proceedings before appeals officers, who, according to the letter, may or may not conduct a hearing on the appeal.

Open Records assigned an appeals officer to decide Gribbin’s appeal. Following various e-mail correspondence, DCNR submitted a brief in support of its denial of the requested information. In its cover letter accompanying the brief, DCNR asked the appeals officer to conduct a hearing to allow DCNR to present evidence of the potential personal harm that would result if Open Records required DCNR to release the information. The appeals officer denied the request by email dated May 28, 2009.

In its brief to Open Records, DCNR argued that home addresses do not constitute records under the RTKL because they are (1) exempt under Section 708(b)(1)(h) of the RTKL6 (records the disclosure of which “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to the personal security of an individual”) and Section 708(b)(6)(i)(A)7 (personal identification information ... “[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”) and (2) they are exempt under the RTKL because the RTKL exempts any information that is exempt under federal or state law, regulation, or judicial decree (under the theory that an individual has a constitutional right to privacy). Around the time DCNR submitted its brief, the contractor that was performing the subject construction sought to intervene.

The Open Records appeals officer issued a Final Determination on June 1, 2009, granting Gribbin’s open records appeal and permitting him access to the home addresses of the contractor’s employees whose wage information was included on the certified payroll records. The appeals officer referred to earlier decisions of Open Records that had specifically held that addresses were not the subject of any [933]*933exemption in the RTKL under Section 708(b)(6) because that provision, which defines “personal identification information,” specifically exempts only the home addresses of individuals such as law enforcement officers and judges. Also, with regard to Section 708(b)(1) of the RTKL, the appeals officer indicated that DCNR did not meet its burden of proof regarding the substantial/demonstrable risk of harm.8

DCNR and the intervenor third-party contractor appealed the Open Records appeals officer’s Determination, raising the same issues noted above.

B. Budget v. Open Records (Malley/Leet/Sheet Metal Workers’ Union)

On March 2, 2009, Shaun Leet, a representative of Sheet Metal Workers’ Local 12 (Leet or Union, as appropriate), sent a RTKL request to the open records officer of Budget, requesting copies of the certified payroll of a roofing contractor — Burns & Scalo Roofing — that had performed services on a construction project for the Fred Rogers Center and Business Conference Center. The request also sought the same information for any roofing subcontractors. Budget’s open records officer responded to Leet’s request by letter dated March 12, 2009, indicating that Budget would use the RTKL’s extension provision, whereby an agency may take longer than the usual statutory period to provide copies when redaction is necessary. By letter dated April 13, 2009, Budget’s open records officer produced a compact disc (CD-Rom) with two .pdf files consisting of 180 pages of information responsive to Leet’s request. Budget, however, redacted from its production the following information: (1) Social Security numbers, (2) signatures, (3) names, (4) addresses, and (5) W-4 tax exemption information.

By letter dated April 24, 2009, Kevin Malley (Malley) and Leet, on behalf of the Union, filed an appeal with Open Records, challenging the redaction by Budget of the contractors’ employees’ names. Open Records sent a letter to Budget, Malley, and Leet on April 27, 2009, describing the appeal process. Appeals officer Audrey Buglione sent Budget a letter dated April 29, 2009, alerting it to the fact that Open Records had issued earlier determinations in unrelated cases which held that names are not exempt information and directing him, among other things, to inform Open Records of the legal and factual basis for redacting the names.

Budget submitted to the appeals officer a memorandum of law with affidavits.

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Cite This Page — Counsel Stack

Bluebook (online)
1 A.3d 929, 2010 Pa. Commw. LEXIS 722, 2010 WL 3157170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-conservation-natural-resources-v-office-of-open-records-pacommwct-2010.