PSEA v. DCED Cross Appeal of: OOR

• Court: Supreme Court of Pennsylvania
• Decided: October 18, 2016
• Docket: 22 MAP 2015
• Status: Published

Opinion

[J-44A-2016 and J-44B-2016] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

THE PENNSYLVANIA STATE : No. 11 MAP 2015 EDUCATION ASSOCIATION, BY LYNNE : WILSON, GENERAL COUNSEL, : Appeal from the Order of the WILLIAM MCGILL, F. DARLENE : Commonwealth Court at No. 396 MD ALBAUGH, HEATHER KOLANICH, : 2009 dated February 17, 2015. WAYNE DAVENPORT, FREDERICK : SMITH, JAMIE MCPOYLE, BRIANNA : ARGUED: April 5, 2016 MILLER, VALERIE BROWN, JANET : LAYTON, KORRI BROWN, AL REITZ, : LISA LANG, BRAD GROUP AND : RANDALL SOVISKY, : : Appellants : : v. : : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF COMMUNITY AND : ECONOMIC DEVELOPMENT, OFFICE : OF OPEN RECORDS, AND ERIK : ARNESON, EXECUTIVE DIRECTOR OF : THE OFFICE OF OPEN RECORDS, : : Appellees : : PENNSYLVANIA ASSOCIATION OF : SCHOOL RETIREES, URENEUS V. : KIRKWOOD, JOHN B. NYE, STEPHEN : M. VAK, AND RICHARD ROWLAND AND : SIMON CAMPBELL, : : Intervenors : :

THE PENNSYLVANIA STATE : No. 22 MAP 2015 EDUCATION ASSOCIATION, BY LYNNE : WILSON, GENERAL COUNSEL, : Appeal from the Order of the WILLIAM MCGILL, F. DARLENE : Commonwealth Court at No. 396 MD ALBAUGH, HEATHER KOLANICH, : 2009 dated February 17, 2015. WAYNE DAVENPORT, FREDERICK : SMITH, JAMIE MCPOYLE, BRIANNA : ARGUED: April 5, 2016 MILLER, VALERIE BROWN, JANET : LAYTON, KORRI BROWN, AL REITZ, : LISA LANG, BRAD GROUP AND : RANDALL SOVISKY : : v. : : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF COMMUNITY AND : ECONOMIC DEVELOPMENT, OFFICE : OF OPEN RECORDS, AND ERIK : ARNESON, EXECUTIVE DIRECTOR OF : THE OFFICE OF OPEN RECORDS : : PENNSYLVANIA ASSOCIATION OF : SCHOOL RETIREES, URENEUS V. : KIRKWOOD, JOHN B. NYE, STEPHEN : M. VAK, AND RICHARD ROWLAND AND : SIMON CAMPBELL, : : Intervenors : : CROSS APPEAL OF: OFFICE OF OPEN : RECORDS, AND ERIK ARNESON, : EXECUTIVE DIRECTOR OF THE : OFFICE OF OPEN RECORDS :

OPINION

JUSTICE DONOHUE DECIDED: October 18, 2016

This case involves an examination of the scope of the “personal security”

exception to disclosure under the Right to Know Law (“RTKL”), 65 P.S. §§ 67.101-

67.3104, and, more specifically, whether school districts must disclose the home

addresses of public school employees. Under the prior Right to Know Act, 65 P.S. §§

66.1-66.4 (repealed, effective January 1, 2009) (“RTKA”), this Court had on three

occasions ruled that certain types of information, including home addresses, implicated

the right to privacy under Article 1, Section 1 of the Pennsylvania Constitution, and thus

[J-44A-2016 and J-44B-2016] - 2 required a balancing to determine whether the right to privacy outweighs the public’s

interest in dissemination. Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local

Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Employees’

Retirement Board, 935 A.2d 530 (Pa. 2007); Tribune-Review Publ. Co. v. Bodack, 961

A.2d 110 (Pa. 2008). Our task here is to determine whether this analysis continues to

obtain under the RTKL. We hold that it does.

The Pennsylvania State Education Association is an organization whose

members consist of 150,000 public school teachers, support staff, bus drivers, cafeteria

workers, custodians, secretaries and teachers’ aides. On July 23, 2009, the

organization and fourteen of its member public school employees (collectively, “PSEA”)

commenced this action against the Office of Open Records, its Executive Director, and

the Pennsylvania Department of Community and Economic Development (collectively,

the “OOR”),1 seeking preliminary and permanent injunctive relief to prevent the release

of home addresses of public school employees, and a declaration that the home

addresses of public school employees are exempt from public access. PSEA 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 employees lacked any adequate

1 Two of the requesters of the home addresses at issue here intervened in this litigation. Intervenor Simon Campbell has filed with this Court a brief in support of the OOR’s position with respect to the release of home addresses under the RTKL. The Pennsylvania Association of School Retirees and four of its officers intervened in the proceedings below, but did not file a brief with this Court.

The Pennsylvania NewsMedia Association has filed an amicus brief in support of the OOR’s position with respect to the release of home addresses under the RTKL.

[J-44A-2016 and J-44B-2016] - 3 procedural remedy to prevent the release of private information protected by the

Pennsylvania Constitution, PSEA sought to enjoin the OOR from continuing to sanction

the violation of “the right to privacy of every M public school employeeM.” Id. ¶ 91.

In Count I, PSEA asserted that various exceptions to disclosure of information

under the RTKL, including the “personal security exception,”2 are applicable to protect

against the release of public school employees' home addresses. In Count II, PSEA

asserted that the RTKL must be so construed; otherwise, the statute interferes with the

right of privacy conferred upon the public school employees by Article 1, Section 1 and

Article 1, Section 8 of the Pennsylvania Constitution. Count III sought a preliminary

injunction to prevent the OOR from directing any school to release the home addresses

of public school employees, pending the outcome of a decision on the merits.

On July 28, 2009, after a hearing, the Commonwealth Court, per Senior Judge

Rochelle Friedman, entered an order granting PSEA’s request for a preliminary

injunction prohibiting the disclosure of the home addresses of its members. Pa. State

Educ. Ass’n ex rel. Wilson v. Commonwealth, Office of Open Records, 981 A.2d 383

(Pa. Commw. 2009). Judge Friedman concluded that PSEA had established that its

member public school employees have a constitutionally protect privacy interest in their

2 The personal security exception appears in Section 708(b)(1)(ii) of the RTKL, and exempts from access:

(1) A record, the disclosure of which:

**** (ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.

65 P.S. § 67.708(b)(1)(ii).

[J-44A-2016 and J-44B-2016] - 4 home addresses, whereas the OOR had offered no countervailing governmental

interest in disclosure. Id. at 386.

This court has held that the benefits of public disclosure of home addresses are outweighed by an individual's privacy interest in his or her address. See Times Publishing Company, Inc. v. Michel, 633 A.2d 1233 (Pa. Commw. 1993) (relating to law enforcement officers and judges); Cypress Media, Inc. v. Hazleton Area School District, 708 A.2d 866 (Pa. Commw. 1998) (relating to prospective teachers); Rowland v. Public School Employees' Retirement System, 885 A.2d 621 (Pa. Commw. 2005) (relating to annuitants); and Hartman [v. Dep’t. of Conservation & Nat. Res., 892 A.2d 897 (Pa. Commw. 2006] (relating to registered snowmobile owners).

Our [S]upreme [C]ourt also has held that the benefits of public disclosure of home addresses are outweighed by the privacy interest in those addresses. See Sapp Roofing Company, Inc. v. Sheet Metal Workers' International Association, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (relating to contractor employees). Our [S]upreme [C]ourt has explained that the disclosure of personal information, such as home addresses, reveals little, if anything, about the workings of government. Id.

Id. at 386. This Court affirmed Judge Friedman’s issuance of the preliminary injunction

order, “without prejudice to any party’s right to appeal the Commonwealth Court’s final

disposition of these proceedings.” Pa. State Educ. Ass’n ex rel. Wilson v.

Commonwealth, Office of Open Records, 2 A.3d 558 (Pa. 2010) (per curiam).

The OOR filed preliminary objections to the petition for review, arguing, inter alia,

that the Commonwealth Court lacked subject matter jurisdiction because PSEA had not

named an indispensable Commonwealth party as a defendant. On September 24,

2010, the Commonwealth Court sustained the OOR’s preliminary objections and

dismissed the case. Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, Office of

Open Records, 4 A.3d 1156, 1166 (Pa. Commw. 2010). The Commonwealth Court

[J-44A-2016 and J-44B-2016] - 5 held that the OOR was not an appropriate defendant because, as a quasi-judicial

tribunal, it had no interest in the outcome of the adjudication and, therefore, it could not

serve as the governmental unit over which the Commonwealth Court could exercise its

jurisdiction. Id. at 1164 (citing 42 Pa.C.S.A. § 761(a)(1)). Instead, the Commonwealth

Court ruled that the proper Commonwealth defendants were the individual school

districts that actually received RTKL requests. Id. at 1165. In the absence of the OOR,

and based upon the lack of any other Commonwealth agency properly named as a

defendant, the Commonwealth Court concluded that it lacked subject matter

jurisdiction.3 Id. at 1166.

The Commonwealth Court majority further made two separate points, although it

did not base its decision on them. First, the majority recognized the possibility that it

lacked jurisdiction over PSEA’s declaratory judgment action because the matter was

subject to “a tribunal other than a court.” Id. at 1162-63 (citing 42 Pa.C.S. § 7541(c)(2)).

In particular, the majority explained that by statute (65 P.S. § 67.1101(a)), the OOR

decides appeals from RTKL requests. Id. at 1163. The existence of an adequate

statutory remedy, the majority reasoned, renders the exercise of equitable jurisdiction

improper. Id. Aggrieved individuals may “file a written request to provide information or

to appear before the appeals officer [of the OOR] or to file information in support of the

requester's or agency's position.” Id. at 1168 (citing 65 P.S. § 67.1101(c)(1)). Following

the OOR's final determination in a matter, the majority noted that “a teacher may appeal

3 In its order, the Commonwealth Court dissolved the previously entered preliminary injunction. Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, Office of Open Records, 2010 WL 8795339 (Pa. Nov. 1, 2010) (per curiam). This Court, however, stayed this part of the order pending resolution of this appeal. Id.

[J-44A-2016 and J-44B-2016] - 6 that determination to the Court of Common Pleas of the County where the school district

is located.” PSEA, 4 A.3d at 1163 (citing 65 P.S. § 67.1302(a)). As such, the majority

acknowledged that even if a Commonwealth party had been properly named as a

defendant, a question remained as to “whether the statutory procedure established in

the Right–to–Know [Law] forecloses the ability of [the Commonwealth Court], or any

court, to circumvent the statutory procedure by allowing PSEA's action for declaratory

and equitable relief to proceed.” Id. at 1164.

Second, contrary to Judge Friedman’s analysis, the majority stated that PSEA’s

contention that its members had a constitutionally protected privacy interest in their

home addresses was “fraught with challenge,” id. at 1162, given this Court’s decision in

Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003). In Duncan, construing Article 1,

section 8 of the Pennsylvania Constitution in a criminal suppression motion context, this

Court held that given “the realities of our modern, consumer age and the experience of

other courts,” appellant did not have “an expectation of privacy in his name and address

that society is willing to recognize as reasonable and legitimate.” Id. at 469.

On August 21, 2012, this Court vacated the decision of the Commonwealth

Court. Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, Office of Open Records,

50 A.3d 1263 (Pa. 2012) (“PSEA I”). At the outset, we observed that public school

employees clearly have colorable interests in protecting their home address information

from disclosure under the RTKL. Id. at 1274-75. The RTKL, however, does not make

public school employees parties to requests for such information or at any appeal

proceedings before the OOR, and in fact does not even provide them with notice of

either the requests or the existence of appeal proceedings. Id. at 1275. Justice (now

[J-44A-2016 and J-44B-2016] - 7 Chief Justice) Saylor, writing for the Majority, indicated that while the OOR “portrays

itself as a “quasi-judicial tribunal relative to the interests of public school employees, it

must bear much of the responsibility for the procedural shortcomings in this area, as it

has “settled on a construction [of the RTKL] which permits the disclosure of personal

information of school employees without any requirement that notice be provided to

such individuals.” Id. The Chief Justice further indicated that the OOR’s contention that

notice issues should be handled at the local agency level essentially ignored its

statutory authority to “promulgate regulations relating to appeals involving a

Commonwealth agency or local agency.” Id. As such, because the RTKL, “as presently

implemented by the OOR,” fails to provide public school employees with any

administrative or judicial method of obtaining redress for the procedural and

constitutional rights, the Court concluded that “[i]n these unique circumstances, we have

no difficulty in concluding that it is just and proper for the OOR to be haled into court to

address core and colorable issues connected with such treatment at the behest of

affected persons and their associations.” Id. at 1275-76.

In addition, with respect to the Commonwealth Court’s suggestion that it lacked

jurisdiction to consider a declaratory judgment petition because the RTKL provided

adequate administrative remedies (with the right of public school employees to appeal

an OOR decision to a court of common pleas), this Court likewise disagreed. To the

contrary, we indicated that it was unclear how, “absent recourse to the declaratory

judgment avenue,” that public school employees “would be able to obtain timely,

meaningful judicial review” of their statutory and constitutional issues. Id. at 1277. As

such, we concluded that “[p]articularly in the absence of administrative or judicial

[J-44A-2016 and J-44B-2016] - 8 process reliably afforded to affected school employees, we find that the circumstances

fall well within the contemplation of the General Assembly in its prescription of the

Declaratory Judgment Act.” Id.

On remand, PSEA filed an Amended Petition, adding two new claims. In Count

IV, PSEA averred that the RTKL violates the fundamental constitutional due process

rights of its members because it does not provide affected individuals with notice that a

request has been received, an opportunity to be heard, or party status -- thereby

depriving them of any meaningful opportunity to challenge an agency decision to

release information. In Count V, PSEA averred that, as currently administered by the

OOR, the RTKL is fatally flawed because it lacks any mechanism to ensure that

individuals have advance notice and an opportunity to be heard before the release of

their personal data and the opportunity to challenge the release. In Counts IV and V,

PSEA requested that the Commonwealth Court enjoin the release of public school

employees’ home addresses until the OOR establishes a mechanism to ensure that

affected individuals will be afforded due process.

On February 25, 2013, the OOR moved for summary judgment as to Counts I

through III, arguing that neither the Pennsylvania Constitution nor the RTKL protects

home addresses from disclosure.4 The OOR also moved for summary judgment with

4 In support of its motion for summary judgment, OOR relied on the Commonwealth Court’s decisions in Office of Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Commw. 2013) (en banc) and Office of Governor v. Raffle, 65 A.3d 1105 (Pa. Commw. 2013) (en banc). In Mohn, the Commonwealth Court held that there is no constitutional privacy right in one's home address. Mohn, 67 A.3d at 132. This holding was based principally on the Commonwealth Court’s application of this Court’s decision in Duncan. Id. The Commonwealth Court further held that “any previous privacy exception for that information [under the RTKA] was based only in statute. Id. at 131. “There is no (Mcontinued)

[J-44A-2016 and J-44B-2016] - 9 respect to Counts IV and V, arguing that it lacks any statutory authority to regulate

procedural due process during the RTKL request stage, and that the RTKL provides for

adequate procedural due process at the appeal stage.

In Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, Office of Open

Records, 110 A.3d 1076 (Pa. Commw. 2015) (en banc), a divided Commonwealth Court

granted the OOR’s motion for summary judgment and dismissed Counts I, II, and III,

ruling that neither the Pennsylvania Constitution nor the RTKL protects the home

addresses of public school employees from disclosure in response to a RTKL request.

Id. at 1088. In so ruling, the Commonwealth Court considered itself to be bound by its

prior en banc decisions in Mohn and Raffle. With respect to PSEA’s due process

claims, the Commonwealth Court granted PSEA’s cross-motion for summary judgment,

holding that the RTKL is procedurally deficient because it does not provide affected

individuals with necessary due process when their personal information is requested.

Id. at 1084-85. The Commonwealth Court stated that this Court permitted PSEA’s

petition for declaratory judgment to proceed based primarily on due process concerns.

Id. at 1084. As a result, the Commonwealth Court decided that the lack of procedural

due process under the RTKL eviscerates the legislature’s intent under the personal

security exception, and accordingly, violates the statutory scheme of the RTKL. Id. at

1086. The Commonwealth Court did not announce that the RTKL was unconstitutional,

(continuedM) language in the current RTKL's personal security exception that requires the agency to balance personal security interests against the benefits of disclosure.” Id. Raffle applied the same rationale as Mohn, holding that citizens have no constitutional right to privacy in a home address and that the personal security exemption of the RTKL does not provide any statutory basis for such protection. Raffle, 65 A.3d at 1109.

[J-44A-2016 and J-44B-2016] - 10 as PSEA had requested, and instead fashioned a remedy designed to apply when a

school district receives a request for personal employee information (such as a home

address). Id. at 1086-87. Specifically, the court declared that school districts must give

all potentially affected public school employees notice of the request and reasonable

advance opportunity to object prior to the release of personal information. Id. at 1087. It

further declared that all affected public school employees may participate in any

hearings regarding the release of their information and have standing to appeal an

adverse decision. Id.

PSEA and the OOR both filed appeals from the en banc decision of the

Commonwealth Court, which have been consolidated here for our review. In its appeal,

PSEA raises several arguments in support of its contention that the Commonwealth

Court erred in ruling that neither the Pennsylvania Constitution nor the RTKL protects

against the disclosure of home addresses of public school employees in response to a

RTKL request. In its cross-appeal, the OOR contends, inter alia, that the

Commonwealth Court exceeded its authority by fashioning a procedural remedy not

found in the RTKL.

We first address the issues raised by PSEA. PSEA contends that the home

addresses of its member public school employees are exempt from disclosure under the

“personal security” exception in Section 708(b)(1)(ii) of the RTKL, 65 P.S. §

67.708(b)(1)(ii), which requires recognition of the constitutional right to privacy

guaranteed by the Pennsylvania Constitution. Brief of Appellant/PSEA at 30. Applying

section 1922(4) of the Statutory Construction Act, PSEA contends that when

interpreting a statute, there is a presumption that “when a court of last resort has

[J-44A-2016 and J-44B-2016] - 11 construed the language used in a statute, the General Assembly in subsequent statutes

on the same subject matter intends the same construction to be placed upon such

language.” Id. at 35 (citing 1 Pa. C.S.A. § 1922(4)). PSEA asserts that the now-

repealed RTKA and the current RTKL contain the same “personal security” exclusion

from disclosures of personal information, and that this Court, in Sapp Roofing, Penn

State and Bodack, had interpreted this exclusion to require recognition of a

constitutional right to informational privacy. Id. at 35-37. Based upon application of

statutory construction principles, PSEA submits that the “personal security” language in

the current RTKL must be similarly interpreted. Id. at 37. PSEA argues that “if the

‘personal security’ exemption in section 708(b)(1)(ii) is not interpreted to include a

constitutional balancing test, M it violates the Right to Privacy and is unenforceable.”

Id. at 42. Employing a balancing test, PSEA contends that any public interest in

disclosing the home addresses of public school employees in this instance is

outweighed by its members’ interests in maintaining the privacy of their personal

information. Id. at 44-45.

In response, the OOR contends that the protections for personal information

(including home addresses) that this Court recognized in Sapp Roofing, Penn State and

Bodack were based exclusively upon the statutory language of the former statute and

had no constitutional basis. Brief of Appellee/OOR, at 13-16. The OOR posits that the

language surrounding the phrase “personal security” in the current RTKL differs from

that of the prior RTKA, and thus the prior protections for home addresses are now gone.

Id. at 20. Relying instead on the Commonwealth Court’s decisions in Mohn and Raffle,

the OOR contends that when the legislature enacted the RTKL, it chose not to carry

[J-44A-2016 and J-44B-2016] - 12 over the statutory privacy exception and its attendant balancing test. OOR contends

that under the RTKL, an analysis must made on a case-by-case basis to determine if

there is a “substantial and demonstrable risk of physical harm to, or the personal

security of,” an individual resulting from disclosure of his or her home address.

We begin our analysis with a review of the contours of the various rights to

privacy embodied in the Pennsylvania Constitution.5 In this regard, the right to privacy

most frequently discussed under our Constitution is the protection against unreasonable

searches and seizures under Article 1, section 8, which is entitled “Security from

searches and seizures:”

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. 1, § 8. This right of privacy typically arises when the government seeks

information related to persons accused of crimes or other malfeasance, and requires an

assessment of the extent to which the government’s demands invade the bounds of the

person’s subjective privacy interest, which in turn requires consideration of the extent to

which the person’s privacy interests are reasonable. As such, when considering the

extent to which the government must recognize privacy rights under Article 1, section 8,

this Court has routinely required a factual examination of whether (1) the person has

5 Our analysis here involves matters of constitutional and statutory interpretation. As we are presented with pure questions of law, our standard of review is de novo and our scope of review is plenary. See, e.g., Buckwalter v. Borough of Phoenixville, 985 A.2d 728, 730 (Pa. 2009); Schappell v. Motorists Mut. Ins. Co., 934 A.2d 1184, 1187 (Pa. 2007); Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co., 908 A.2d 888, 897 (Pa. 2006).

[J-44A-2016 and J-44B-2016] - 13 exhibited an actual (subjective) expectation of privacy in the items to be searched or

disclosed, and (2) whether society is prepared to recognize this expectation as

reasonable and protectable. See, e.g., Commonwealth v. Rekasie, 778 A.2d 624, 628

(Pa. 2001).

Constitutional rights to privacy are not, however, limited to those claimed by

people who have been accused of, or associated with, criminal activity. In a scholarly

article many years ahead of its time, Samuel D. Warren and Louis D. Brandeis

advocated for legal systems to recognize privacy rights beyond those related to

searches and seizures under the Fourth Amendment to the United States Constitution.

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890). According to Warren and Brandeis, all citizens (as persons, unrelated to any

subjective expectations) have the “right to immunity of the person,” the “right to be let

alone,” and the “right to one’s personality.” Id. at 207. Subsequent legal scholars have

dubbed this collection of privacy rights the “right of informational privacy,” namely the

right of the individual to control access to, or the dissemination of, personal information

about himself or herself. See, e.g., Richard C. Turkington, Legacy of the Warren and

Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational

Privacy, 10 N. Ill. U. L. Rev. 479, 519-20 (1990).

Although slow to respond to the call of Warren and Brandeis, in 1965 the United

States Supreme Court first recognized a constitutional right to privacy unrelated to

Fourth Amendment searches in Griswold v. Connecticut, 381 U.S. 479 (1965)

(recognizing a right to independence of decision-making in relationships like marriage).

Twelve years later, in Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court first

[J-44A-2016 and J-44B-2016] - 14 acknowledged specific rights to informational privacy, including an individual’s “interest

in avoiding disclosure of personal matters” and an “independence in making certain

kinds of important decisions.” Id. at 598-601 (citing, inter alia, Griswold and Roe v.

Wade, 410 U.S. 113 (1973)). While rejecting the plaintiff’s specific claims on the

particular facts presented in that case, the Court acknowledged that the New York

statute in question, which required copies of prescriptions for certain drugs to be

maintained in a government database, raised serious informational privacy implications.

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. M The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures.

Id. at 605.

In identifying rights to informational privacy under the Pennsylvania Constitution,

this Court has focused its attention not on the rights of persons accused as set forth in

Article 1, section 8, but rather to the broader array of rights granted to citizens under

Article 1, Section 1, which is entitled “Inherent rights of mankind:”

All men are born and equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const. art. 1, § 1.

In an early case dealing with whether a private detective’s tap on a switchboard

violated the anti-wiretapping statute, Justice Michael Musmanno, speaking for the

Court, explained that Article 1, Section 1 provides the citizens of this Commonwealth

with “inherent and indefeasible rights” to pursue “their own happiness.” Commonwealth

[J-44A-2016 and J-44B-2016] - 15 v. Murray, 223 A.2d 102, 109 (Pa. 1966). “One of the pursuits of happiness is privacy,”

and, as such, “[t]he right to privacy is as much property of the individual as the land to

which he holds title and the clothing he wears on his back.” Id. Justice Musmanno then

eloquently expounded on the importance of the right to privacy:

The greatest joy that can be experienced by mortal man is to feel himself master of his fate,-- this in small as well as in big things. Of all the precious privileges and prerogatives in the crown of happiness which every American citizen has the right to wear, none shines with greater luster and imparts more innate satisfaction and soulful contentment to the wearer than the golden, diamond-studded right to be let alone. Everything else in comparison is dross and sawdust.

Id. at 109-110.

Subsequent Pennsylvania cases on informational privacy likewise focused on the

protections guaranteed in Article 1, Section 1 of our Constitution. In In re “B”, 394 A.2d

419 (Pa. 1978), for instance, we addressed whether a mother’s psychiatric records

could be subpoenaed in connection with proceedings related to the placement of her

delinquent juvenile son. Id. at 420-21. This Court determined that the mother’s

constitutionally protected right to privacy barred the release of her psychiatric records

without her consent, ruling that even though the information might have been useful in

the placement proceedings, the mother’s “right of privacy M must prevail in this

situation.” Id. at 426. In so ruling, we indicated that Article 1, Section 1 of the

Pennsylvania Constitution provides even “more rigorous and explicit protection for a

person’s right to privacy” than does the United States Constitution. Id. at 425.

Similarly, in In re June 1979 Allegheny Cty. Investigating Grand Jury, 415 A.2d

73 (Pa. 1980), we held that Article 1, Section 1 of the Pennsylvania Constitution

protects the same rights to informational privacy as those recognized by the United

[J-44A-2016 and J-44B-2016] - 16 States Supreme Court in Whalen v. Roe, including “the interest in avoiding disclosure of

personal matters.” Id. at 77; see also In re T.R., 731 A.2d 1276, 1279 (Pa. 1999)

(plurality) (“There is no longer any question that the United States Constitution and the

Pennsylvania Constitution provide protections for an individual’s right to privacy,”

including “the individual’s interest in avoiding disclosure of personal matters M .”) (citing

Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796, 800 (Pa. 1992)).

In Denoncourt v. Com., State Ethics Comm’n, 470 A.2d 945 (Pa. 1983)

(plurality), a plurality of this Court yet again affirmed that rights to privacy, including the

“freedom from disclosure of personal matters,” find “explicit protection in the

Pennsylvania Constitution, Art. 1, § 1.” Id. at 948. In this regard, we quoted a legal

opinion authored by Mr. Justice Brandeis:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

Id. at 948 (Brandeis, J., dissenting) (emphasis in original) (quoting Olmstead v. United

States, 277 U.S. 438, 478 (1927)).

Denoncourt involved a constitutional challenge to a statutory provision that

required the filing of a statement by every public official (as a condition of holding office)

setting forth detailed financial information with respect to both the public official and all

members of his or her immediate family. Id. at 945. With respect to disclosures by

immediate family members, this Court acknowledged that “there is a recognized privacy

[J-44A-2016 and J-44B-2016] - 17 interest sought to be protected in this case; it is in the nature of freedom from

disclosures of personal matters; and it is constitutionally based.” Id. at 948. Noting that

the constitutional right to privacy is not absolute, this Court indicated that a proper

assessment of privacy claims requires a balancing of “the nature of the privacy right and

its important relationship to other basic rights.” Id.; see also T.R., 731 A.2d at 1280

(“Privacy claims must be balanced against state interests.”). Finding that the

government proffered no significant interest or purpose in requiring immediate family

members to publicly disclose private financial information, the plurality found the

statutory provision to be unconstitutional. Id. at 949.

Turning now to the RTKL, in 1957 the Pennsylvania General Assembly codified

the common law right to inspect public records by enacting the RTKA to provide public

access to public records. 65 P.S. §§ 66.1-66.4 (repealed); see Wiley v. Woods, 141

A.2d 844, 848 (Pa. 1958) (stating that the RTKA was enacted to “enlarge the rights of

the general public for the examination and inspection of public records.”). According to

its legislative account, the stated purpose of the RTKA was designed to “strike the veil

of secrecy from [those] M government departments and agencies” which have become

so far removed from the electoral process that public oversight is necessary to keep

them in check. Pennsylvania Legislative Journal, Session 1957, No. 35, April 10, 1957,

2186.

Section 1(2) of the RTKA defined a “public record,” in part, as “any minute, order

or decision by an agency fixing the personal or property rights, privileges, immunities,

duties or obligations of any person or group of persons.” There were nine exclusions

from that definition, including (of relevance here) an exclusion for any public record that

[J-44A-2016 and J-44B-2016] - 18 “would operate to the prejudice or impairment of a person’s reputation or personal

security.” 65 P.S. § 66.1(2).6 Under the RTKA, the requester bore the initial burden of

demonstrating that the record at issue was a public record. The burden then shifted to

the governmental agency to establish that the record should not be disclosed under one

of the statutory exceptions. See Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185,

189 n. 1 (Pa. 2003); Tribune–Review Publ. Co. v. Westmoreland Cty. Hous. Auth., 833

A.2d 112, 115 (Pa. 2003).

Among the first occasions on which a Pennsylvania appellate court considered

the limits on the government’s right (or obligation) to disclose public records containing

personal information pursuant to the RTKA was in Times Publishing Company, Inc. v.

Michel, 633 A.2d 1233 (Pa. Commw. 1993). In Times Publishing, a newspaper

submitted a RTKA request to a local sheriff’s office seeking copies of applications of

6 The exceptions in section 1(2) were defined in full as follows:

[T]he term ‘public records’ shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

65 P.S. § 66.1(2) (repealed).

[J-44A-2016 and J-44B-2016] - 19 persons to whom he had issued licenses to carry firearms. Id. at 1234. When the

sheriff refused to do so, the requesters appealed. Id. The trial court held that the

addresses, telephone numbers and social security numbers of the applicants were not

subject to disclosure. Id.

On appeal, the Commonwealth Court acknowledged that the issue to be

addressed was the extent to which personal information contained in the applications at

issue was subject to disclosure under the RTKA. Id. The requester argued that

because the RTKA contained no exceptions to disclosure relating to privacy concerns,

privacy and confidentiality issues were thus irrelevant and could not be the basis for

protecting information from disclosure under the RTKA. Id. at 1237. The

Commonwealth Court disagreed, citing to this Court’s decision in Denoncourt

recognizing an independent constitutional right to informational privacy arising under,

inter alia, Article 1, Section 1 of the Pennsylvania Constitution. Id. Although the RTKA

did not expressly reference “privacy” as an exception to its disclosure requirements, the

Commonwealth Court recognized that government disclosures of personal information

must, under all circumstances, be made with proper recognition and respect for the

constitutionally protected privacy interests of the citizens of this Commonwealth. Id. at

1239. Accordingly, acknowledging that the release of personal information “raises

similar concerns regarding personal security and privacy,” the Commonwealth Court

decided that deference to personal privacy rights must be accommodated pursuant to

the “personal security” exception in the RTKA. Id. Furthermore, the Commonwealth

Court, borrowing from our decision in Denoncourt, found that when evaluating claims

involving constitutional privacy interests related to RTKA requests for personal

[J-44A-2016 and J-44B-2016] - 20 information, courts must “apply a balancing test, weighing privacy interests and the

extent to which they may be invaded, against the public benefit which would result from

disclosure.” Id.

It was against this backdrop that we decided the trilogy of cases central to the

issues before us in this appeal, namely Sapp Roofing, Penn State and Bodack. In

these three cases, this Court essentially adopted the Commonwealth Court’s analysis in

Times Publishing, including that the “personal security” exception in the RTKA is the

statutory locus for constitutionally required recognition of personal rights to informational

privacy. Following Denoncourt, we likewise agreed with the Commonwealth Court that

the determination of whether personal information may be disclosed pursuant to a

RTKA request requires a balancing to assess whether the privacy interests outweigh

the public’s interest in the dissemination of the information.

Beginning with Sapp Roofing, a union submitted a RTKA request to a school

district for payroll records of a non-union roofing company that had performed

contractual roofing work on three school buildings. Id. at 628. The records contained

the names, addresses, telephone numbers, social security numbers, and wage

information (job positions, rates of pay and hours worked) of the company’s employees.

Id. The union argued that the payroll records were vital to its efforts to ensure that the

school district complied with the prevailing wage statutes, and that there was a strong

public interest in monitoring compliance with that act. Id. at 629-630. The non-union

roofing company, on the other hand, asserted that the release of the employees’

personal information, including their home addresses, telephone numbers and social

[J-44A-2016 and J-44B-2016] - 21 security numbers, would infringe constitutionally protected privacy rights under the

Pennsylvania Constitution. Id. at 630.

Defining the issue presented in accordance with Denoncourt and Times

Publishing, this Court balanced the public interest in disclosure of the requested

information against the “individual’s right to privacy and personal security.” Id. at 630.

In so doing, we concluded that while the union was entitled to the requested wage

information, the personal information of the non-union employees revealed nothing

about the school district’s compliance with the wage laws. Id. Accordingly, weighing

the individual employees’ “strong privacy interests” in limiting access to their personal

information against the public’s weak (at best) interest in the disclosure of this

information, this Court held that “the personal information is not releasable” and that

instead “the only information that the union can access from the school district is the

wage information of the [roofing company’s] employees.” Id.

Next, in Penn State a reporter and the Patriot News Company (“requesters”) sent

a request to the State Employees' Retirement Fund (“SERS”) requesting information

pertaining to the salaries and service of various employees of Pennsylvania State

University who participated in SERS. The Commonwealth Court affirmed SERS’

decision to release the information. In so doing, the Commonwealth Court

acknowledged that its decisions prior to Denoncourt typically refused to recognize the

need to consider personal privacy interests in connection with RTKA requests and that

the “personal security” exception had permitted the dissemination of any information not

demonstrated to be “intrinsically harmful.” Id. at 540-41 (citing Moak v. Phila.

Newspapers, Inc., 336 A.2d 920, 924 (Pa. Commw. 1975)). The Commonwealth Court

[J-44A-2016 and J-44B-2016] - 22 acknowledged that in Denoncourt, however, this Court had recognized a constitutional

right to privacy, which in turn requires the application of a balancing of the individual’s

privacy interests and the public’s interest in disclosure. Id. at 541 (citing Tribune-

Review Publ. Co. v. Bodack, 875 A.2d 402, 408 (Pa. Commw. 2005)).

This Court expressly approved of the Commonwealth Court’s review of the

relevant law in this area, including in particular its application of an “appropriate

balancing analysis” in accordance with Times Publishing. Id. In particular, we quoted

Times Publishing’s recognition that when constitutionally protected privacy rights are

implicated by a RTKA request, courts must apply “a balancing test, weighing privacy

interests and the extent to which they may be invaded against the public benefit which

would result from disclosure.” Id. (quoting Times Publ., 633 A.2d at 1239). In applying

this balancing test, we acknowledged that the request in this case related solely to the

salaries of public employees, and that, to this end, the public’s interest in the

disbursement of public funds outweighed any privacy interests the employees had in

their salary information. Id. at 539-40. We emphasized, however, that if the requests

had sought personal information implicated by rights to informational privacy, like home

addresses or telephone numbers, “we would have greater difficulty concluding that the

public interest asserted here outweighs those basic rights of privacy.” Id. at 539.

Finally, in Bodack we addressed a RTKA request by a journalist and the Tribune-

Review Publishing Company to obtain the cellular telephone records of incoming and

outgoing calls of two members of Pittsburgh’s City Council. Bodack, 961 A.2d at 112.

After determining that the telephone records in question were “public records” under the

RTKA, we again acknowledged, citing Times Publishing, that Pennsylvania appellate

[J-44A-2016 and J-44B-2016] - 23 courts have recognized that, under the “personal security” exception, the government

must respect constitutionally protected privacy rights. Id. at 115 & n.2. To this end, we

indicated that our case law has recognized that there are “certain types of information

whose disclosure, by their very nature, would operate to the prejudice or impairment of

a person’s privacy, reputation, or personal security, and thus intrinsically possess a

palpable weight that can be balanced by a court against those competing factors that

favor disclosure.” Id. at 115-16. We referred back to our decisions in Sapp Roofing and

Penn State, recognizing that home addresses are one such type of information. Id. at

116-18. Applying the Times Publishing balancing test, we determined that the “patently

strong privacy interests” in protecting the telephone numbers of citizens contacting

members of City Council outweighed the “weak, perhaps non-existent” public interest in

favor of disclosure. Id. at 118.

In 2009, the General Assembly repealed the RTKA and replaced it with the

RTKL. The revisions to the RTKL changed the method of access to an individual's

personal information and set forth new criteria to determine whether information is

protected from disclosure. The objective of the RTKL, like the RTKA, “is to empower

citizens by affording them access to information concerning the activities of their

government.” SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012).

The RTKL is designed to promote access to official government information in order to

prohibit secrets, scrutinize the actions of public officials, and make public officials

accountable for their actions. Pa. Dep’t. of Educ. v. Bagwell, 131 A.3d 638 (Pa.

Commw. 2015). The RTKL affords greater access to public records than did the RTKA,

[J-44A-2016 and J-44B-2016] - 24 resulting in “a dramatic expansion of the public's access to government documents.”

Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013).

The RTKL created the Office of Open Records to serve as an administrative

body to handle appeals and other matters relating to the RTKL.7 65 P.S. § 67.1310.

Records held by an agency are presumed to be public under Section 305(a) of the

RTKL, 65 P.S. § 67.305(a), except no such presumption exists if the records are: (1)

exempt under one of the thirty listed exceptions in 65 P.S. § 67.708; (2) protected by a

privilege; or (3) exempt from disclosure under any other Federal or State law or

regulation or judicial order or decree. 65 P.S. § 67.305(a)(3). The burden is now on the

governmental agency to prove by a preponderance of the evidence that a particular

record is exempt from public access. 65 P.S. § 67.708(a)(1). The RTKL retained the

“personal security” exception, although the language of the provision changed. Under

this exception, public records are exempt if disclosure “would be reasonably likely to

result in a substantial and demonstrable risk of physical harm to or the personal security

of an individual.” 65 P.S. § 67.708(b)(1)(ii).

In this case, the OOR contends that our decisions in Sapp Roofing, Penn State

and Bodack have no continuing vitality under the RTKL. In support thereof, the OOR

contends that the protection of personal information under the “personal security”

7 Its duties include: providing information relating to the implementation and enforcement of the RTKL; issuing advisory opinions to agencies and the public; providing training to public officials; assigning appeals officers to review certain agency denials; establishing an informal mediation program to resolve disputes; setting duplication fees for most government agencies; and making legislative recommendations for changes to the RTKL. 65 P.S. § 67.1310. The OOR is also given the authority to promulgate regulations relating to appeals from a denial of access by state or local agency. 65 P.S. § 67.504.

[J-44A-2016 and J-44B-2016] - 25 exception to the RTKA was based solely upon the statutory language in the RTKA, and

that as a result of substantial modifications in the language of the “personal security”

exception in the RTKL, no such protection remains. OOR’s Brief at 19-22.

This argument fails for at least two reasons. First, the OOR misconstrues the

nature of the protection afforded to RTKA requests for personal information, as

explained in Sapp Roofing, Penn State and Bodack. Balancing tests were never

required to satisfy any statutory language in the RTKA (which in fact contained no

language requiring balancing), but rather were required to protect the rights of

informational privacy granted to our citizens under, inter alia, Article 1, Section 1 of the

Pennsylvania Constitution. The Commonwealth Court decided to locate the balancing

test under the “personal security” exception because personal security and privacy raise

“similar concerns,” Times Publ., 633 A.2d at 1239, and perhaps also because the RTKA

contained no specific provision relating to privacy concerns. We note, for instance, that

the RTKA, unlike the RTKL, contained no catch-all exception from disclosure. See 65

P.S. § 67.305(a)(3) (a record is not presumed to be a public record if “the record is

exempt from disclosure under any other Federal or State law or regulation or judicial

order or decree.”). More importantly, constitutionally protected privacy interests must be

respected even if no provision of the RTKL speaks to protection of those interests.

Pennsylvania courts are obliged to construe statutory enactments as consistent with the

Pennsylvania Constitution. Harrington v. Commonwealth, Dep't of Transp., 763 A.2d

386, 393 (Pa .2000).

In any event, information protected from disclosure by the Pennsylvania

Constitution is certainly exempt from disclosure under § 67.305(a)(3). Moreover, there

[J-44A-2016 and J-44B-2016] - 26 is symmetry between the personal security exemption language of the RTKA and the

RTKL. As recited herein, this Court, through its decisions in Sapp Roofing, Penn State

and Bodack, has developed a body of case law requiring governmental agencies to

respect the constitutional privacy rights of citizens when disseminating requested

information. In such circumstances, a balancing test is required before the disclosure of

any personal information.8 As we explained in Bodack, “certain types of information,”

including home addresses, by their very nature, implicate privacy concerns and require

balancing. Bodack, 961 A.2d at 115-16. The legislature is presumed to know about this

body of case law, as it is well-settled that if the legislature in a later statute uses the

same language used in a prior statute which has been construed by the courts, there is

a presumption that the repeated language is to be interpreted in the same manner as

such language had previously interpreted when the court construed the earlier statue.

1 Pa.C.S.A. § 1922(4); Parisi v. Phila. Zoning Bd. of Adjustment, 143 A.2d 360 (Pa.

1958); Jones & Laughlin Tax Assessment Case, 178 A.2d 856 (Pa. 1961);

Commonwealth v. Sitkin’s Junk, Co., 194 A.2d 199 (Pa. 1963). Applying this statutory

construction tool, the legislature, by using the same “personal security” language in the

RTKL that it had used in the RTKA, plainly intended to preserve the balancing tests for

personal information required in Sapp Roofing, Penn State and Bodack. Pennsylvania

8 The RTKL contains an exception providing unconditional protection of the home addresses of judges, 65 P.S. § 67.708(b)(6)(i), law enforcement officers, id., and children seventeen years of age or younger, 65 P.S. § 67.708(b)(30). Contrary to the OOR’s contentions, we do not agree our decision here renders these provisions superfluous. OOR’s Brief at 23. To the contrary, these provisions demonstrate that with respect to certain individuals, the legislature has, in essence, already performed a balancing test and determined that for these individuals, their home addresses should be protected from disclosure under the RTKL at all times.

[J-44A-2016 and J-44B-2016] - 27 courts are obliged to construe statutory enactments as consistent with the Pennsylvania

Constitution, and we must presume that the legislature did not intend to violate the

Constitution of this Commonwealth when enacting the RTKL. 1 Pa.C.S.A .§ 1922(3);

Harrington v. Commonwealth, Dep't of Transp., 763 A.2d 386, 393 (Pa. 2000).

The OOR also argues that this Court’s decision in Commonwealth v. Duncan,

817 A.2d 455 (Pa. 2003), precludes any continued recognition of a constitutional privacy

interest in one’s home address. OOR’s Brief at 17-19. In Duncan, this Court affirmed a

trial court’s decision to deny suppression of a subpoena to a bank requesting the

defendant’s name and address corresponding to an ATM card used near a crime scene.

Id. at 457. We indicated that the criminal defendant’s name and address were entitled

to no constitutional protection, since “in this day and age where people routinely

disclose their names and addresses to all manner of public and private entities,” and are

thus readily available to the public, there can be no reasonable expectation of privacy in

that information. Id. at 459. Our analysis in Duncan, however, proceeded under Article

1, section 8 of the Pennsylvania Constitution, rather than under Article 1, Section 1,

because the distinctly different privacy interests of a citizen under criminal investigation

were at issue in Duncan. We note that we decided Duncan in 2003, well prior our

decisions in Penn State in 2007 and Bodack in 2008 -- yet in neither of the two latter

decisions did we even mention our prior decision in Duncan. Because our analysis in

Penn State and Bodack proceeded pursuant to rights to informational privacy

[J-44A-2016 and J-44B-2016] - 28 emanating from Article 1, Section 1, rather than from Article 1, section 8, Duncan was

simply irrelevant to that analysis.9

Having determined that the public school employees represented here by PSEA

continue to have constitutionally protected privacy interests in their home addresses, we

must proceed to perform the necessary balancing test. On the one hand, the public

school employees have strong privacy interests in protecting their home addresses from

disclosure, in response to broad and generic requests based upon no criteria other than

their occupation. As PSEA indicates, public school employees just want to work, and

should not be required to forfeit their privacy merely as a precondition to, or by virtue of,

their decision to be employed as public school employees. Brief of Appellant/PSEA at

45. On the other hand, the OOR has identified no public benefit or interest in disclosure

of perhaps tens of thousands of addresses of public school employees. We likewise

perceive no public benefit or interest to disclosure in response to such generic requests

for irrelevant personal information of these particular public employees who have

undertaken the high calling of educating our children. To the contrary, nothing in the

RTKL suggests that it was ever intended to be used as a tool to procure personal

information about private citizens or, in the worst sense, to be a generator of mailing

lists. Public agencies are not clearinghouses of “bulk” personal information otherwise

protected by constitutional privacy rights. While the goal of the legislature to make

more, rather than less, information available to public scrutiny is laudable, the

9 Thus, we disapprove of Mohn, Raffle, and their Commonwealth Court progeny.

[J-44A-2016 and J-44B-2016] - 29 constitutional rights of the citizens of this Commonwealth to be left alone remains a

significant countervailing force.

For these reasons, we conclude that the Commonwealth Court erred in ruling

that there is no constitutional right to privacy in one’s home address in connection with

RTKL requests. The right to informational privacy is guaranteed by Article 1, Section 1

of the Pennsylvania Constitution, and may not be violated unless outweighed by a

public interest favoring disclosure. As the balancing weighs in favor of the public school

employees on the facts and circumstances presented here, the Commonwealth Court’s

order granting summary judgment in favor of the OOR on Counts I, II, and III of PSEA’s

Amended Petition for Review was in error and must be reversed.10

We now turn to consideration of the OOR’s cross-appeal, in which it asks this

Court to reverse the Commonwealth Court’s “finding that procedural due process is

invariably required in response to RTKL requests seeking home addresses.”11 OOR’s

Cross-Appeal Brief at 37. Based on our disposition of the issues presented in PSEA’s

appeal, OOR’s cross-appeal is moot, as no public school teachers in the present

controversy are subject to the disclosure of their home addresses. The entirety of the

Commonwealth Court’s order dated February 17, 2015 is hereby reversed.

We must remind the OOR, however, that the unique procedural posture of this

case, including its status as a party-defendant, is the result of its repeated failure to

promulgate adequate regulations to address the almost complete lack of procedural due

10 Because of our disposition, we need not address PSEA’s remaining arguments.

11 The Pennsylvania State Association of Township Supervisors filed a brief in support of the OOR’s position with respect to the procedural due process issues.

[J-44A-2016 and J-44B-2016] - 30 process for individuals whose personal information is subject to disclosure under the

RTKL. In our prior opinion reversing the Commonwealth Court’s grant of preliminary

objections for failure to name an indispensable party, then Justice (now Chief Justice)

Saylor explained the severe procedural due process shortcomings under the RTKL in

no uncertain terms:

While the OOR portrays itself as a quasi-judicial tribunal relative to [PSEA’s] interests, it offers an exceptionally weak rejoinder to [PSEA’s] notice-related concerns. In this regard, the OOR merely observes that local agencies such as school districts may adopt rules to provide adequate notice. See Brief for the OOR at 9. Indeed, the OOR’s position that affected school employees receive adequate process depends on a series of such mere possibilities: each of the some 500 school districts statewide may or may not adopt an individualized notice policy; a school employee whose address is requested may or may not receive notice of the request; a school district may or may not disclose the information to requestors; if a district does not disclose, and upon a requestor’s appeal, the OOR may or may not permit the affected schoolteacher to participate in the proceedings; and the school employee may or may not be aware of any further appeal proceedings in the judiciary.

PSEA I, 50 A.3d at 1275. Former Chief Justice Castille was equally forceful in his

distaste for OOR’s failure to take the necessary actions to provide the essential

procedural due process currently lacking in connection with the RTKL request process:

[T]he Right–to–Know Law also authorizes the OOR to “promulgate regulations relating to appeals involving a Commonwealth agency or local agency.” See 65 P.S. § 67.504(a); see also 65 P.S. § 67.1102(b) (“Procedures.— The Office of Open Records ... may adopt procedures relating to appeals under this chapter.”). As a practical matter, the OOR may be in the best position to devise an adequate procedure governing all appeals to the OOR that complies with and promotes uniformity in the OOR's administration of the Right–to–Know Law. As applied here though, the downside of the approach advocated by the OOR is obvious: individual school districts do not have the

[J-44A-2016 and J-44B-2016] - 31 OOR's expertise regarding enforcement of the Right–to– Know Law necessary to implement an adequate policy; school districts may or may not adopt policies in time to address record requests; and the school districts' action is likely to result in a patchwork of policies that may or may not resolve due process concerns. Accordingly, I am skeptical of the OOR's apparent decision to abdicate its potential role as the agency responsible for adopting regulations that facilitate the appeal process and its administration of the Right–to–Know Law, uniformly and in accordance with its expertise.

Id. at 1279 (Castille, C.J., concurring).

Unfortunately, however, in its brief filed with this Court in connection with its

present cross-appeal, the OOR makes the same arguments that we previously rejected,

including that it can play no role in providing procedural due process at the request

stage12 and that it provides adequate procedural due process at the appeal stage.

OOR’s Cross-Appeal Brief at 37. Although the issue is mooted in this case, we reiterate

to the OOR, and to the General Assembly, our previously expressed concerns

regarding the disjointed and scant procedural protections at both the request and

appeal stages of the RTKL. Given the breadth of the disclosure anticipated by the

RTKL and the public’s demonstrated appetite for information from and about the

government, we wait for the inevitable next case to rule definitively on the procedural

challenges.

12 The OOR does indicate that while it lacks any power to regulate the conduct of public agencies at the request stage, it has nevertheless “exercised its statutory authority to the fullest” to encourage agencies to provide procedural due process. OOR’s Cross- Appeal Brief at 32. It would appear, however, that these efforts have amounted to creating a form that includes a checkbox for open-record’s officers to note that they have given third parties notice and an opportunity to be heard, and a reminder on its website that local agencies must provide due process to their employees. Id. at 33.

[J-44A-2016 and J-44B-2016] - 32 The Commonwealth Court’s February 17, 2015 summary judgment order is

reversed in its entirety. The case is remanded to the Commonwealth Court for further

proceedings consistent with this decision.

Chief Justice Saylor and Justices Baer, Todd and Dougherty join the opinion.

Justice Wecht files a concurring opinion.

[J-44A-2016 and J-44B-2016] - 33