Pennsylvania State Education Ass'n ex rel. Wilson v. Commonwealth, Department of Community & Economic Development

DISSENTING OPINION BY

Judge McCullough.

I join in the dissent of Judge Pellegrini in so far as it concludes that this court has jurisdiction and that PSEA has standing under the Right to Know Law (RTKL)1 to challenge these requests. I write separately to respectfully note my disagreement with the dissent’s interpretation of the “personal security” exception of the new RTKL, section 708(b)(1)(h), as well as with the analysis the majority suggests it would apply should it reach the merits. The majority correctly notes that the new RTKL now exempts the disclosure of a record that “would be reasonably likely to result in substantial and demonstrable risk of physical harm to or the personal security of an individual,” section 708(b)(1)(ii)(A) of the RTKL, 65 P.S. § 67.708(b)(1)(ii)(A), but concludes that, because we do not have jurisdiction, we need not address whether the judicially created privacy exception — which grew out of the statute’s personal security exemption — and the balancing test employed by our courts in applying that exception, apply under the new RTKL. Because I agree with the dissent that we do have jurisdiction, I believe that we must address whether the balancing test applies.

As the majority notes, PSEA argues that the personal security exemption provided by section 708(b)(l)(ii)(A) must be given the same effect as the personal security exemption in the 1957 version of the RTKL and that a balancing test must be used whenever a requester demands a public record that may trigger the personal security exemption under the new law. The PSEA further maintains that, in pass*1172ing the new RTKL, the General Assembly never intended to trench upon the right to privacy and never abolished the constitutional balancing act that courts and administrative agencies have been undertaking for decades when a RTKL request implicates private personal information, such as home addresses.

In addressing whether anything in the RTKL forecloses the disclosure of home addresses, the dissent blithely dismisses PSEA’s contention that it can demonstrate by competent evidence that the disclosure of home addresses would result in a reasonable likelihood of substantial and demonstrable risk of physical harm to or the personal security of its members. According to the dissent, because the ubiquitous disclosure of home addresses rarely results in a risk of physical harm, any argument that a particular group could suffer a reasonable likelihood of harm must fail.2 I cannot agree with this reasoning. A-though it acknowledges that an individual might show that releasing his address would result in a reasonable likelihood of harm, thereby invoking the protection afforded by section 708(b)(l)(ii) of the RTKL, the dissent nevertheless concludes that a group of individuals could not possibly establish similar circumstances and would deny a group of individuals the opportunity to present similar relevant evidence. I also disagree with the proffered reasoning that the RTKL’s provisions exempting disclosure of home addresses of law enforcement officers, judges and minor children would be superfluous “if all home addresses of public employees were exempt from disclosure.” (Dissenting op. at 1169.) This case does not involve all public employees. More important, I believe it is illogical to conclude that the existence of statutory exemptions for certain groups reflects a legislative intent to deny similar protection to other groups where the evidence warrants it.

In addition, although the dissent notes that our Supreme Court has held that there is a right to privacy under the Pennsylvania Constitution, the dissent relies on the holding in Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (2003), (a case decided under the old RTKL) for the proposition that the constitutional right to privacy does not extend to one’s home address. Irrespective of whether this holding applies to civil as well as criminal cases, I believe that the context of Duncan is highly significant. In Duncan, the court held that a warrantless telephone call made by police to the appellant’s bank, seeking the name and address associated with an ATM card used by a person suspected of a crime, did not violate the individual’s constitutional right to privacy. In contrast to these circumstances, the present case involves a right to privacy because, and to the extent that, our courts have interpreted the personal security provisions of the RTKL as creating a right to privacy. Penn. State University v. State Employees’ Retirement Board, 594 Pa. 244, 935 A.2d 530 (2007); Rowland v. Public School Employees’ Retirement System, 885 A.2d 621 (Pa.Cmwlth.2005); Times Publishing Co., Inc. v. Michel, 159 Pa. Cmwlth. 398, 633 A.2d 1233 (1993). While the dissent discusses the first part of section 708(b)(1)(ii) of the RTKL, “physical harm”, the second part of that section, “personal security,” is absent from its analysis.

In Penn State University, our Supreme Court determined that the (former) RTKL accounts for an individual’s right to privacy, and it observed that Pennsylvania courts have interpreted the law’s personal *1173security exemption as creating a privacy exception to the law’s general disclosure rule. The court declined to separate a “right to privacy” exception from its analysis of the “personal security” exception and proceeded to apply the balancing test utilized in the typical constitutional analysis; the court described the appropriate analysis as one that, “subsumes the question of whether the potential impairment of any privacy interest outweighs the public interest in the dissemination at issue.” Id. at 258-59, 935 A.2d at 538.

Our court set forth a similar analysis in Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897 (Pa. Cmwlth.2006). In that case, the agency denied a request for the names and addresses of registered snowmobile owners on the grounds that (1) the records were not “public records” and (2) they were exempt from disclosure under the law’s personal security exception as well as the privacy guarantee set forth in Article I, section 8 of the Pennsylvania Constitution. The court first concluded that the information was excepted from the law’s definition of a public record because its release was prohibited by the Driver’s Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-2725. Although observing that this determination technically ended the court’s inquiry, we proceeded to address the question of whether the requested information also was shielded from disclosure under the law’s reputation and personal security exceptions. This court then stated that it interprets the law’s personal security and reputation exceptions “as creating a privacy exception to the law’s general rule of disclosure. It is also generally accepted that a person has a privacy interest in his or her home address.” Hartman, 892 A.2d at 905 (citations omitted). Thus, “[wjhen analyzing this exception, this Court applies a balancing test, weighing the privacy interests, and the extent to which they may be invaded, against the public benefits that would result from disclosure.” Id. at 906. The court ultimately concluded that the public benefits asserted were nominal and were easily outweighed by the registrants’ privacy interests in their names and addresses.

In Rowland v. Public School Employees’ Retirement System, 885 A.2d 621 (Pa. Cmwlth.2005), the executive director of the Pennsylvania Association of School Retirees submitted a formal request, pursuant to the former RTKL, to the Public School Employees’ Retirement System (PSERS), asking for the name, address, date of birth, date of retirement, years of credited service, last employer, and current monthly annuity of each PSERS annuitant. The issue before the court was whether PSERS properly refused to disclose the individuals’ addresses and dates of birth on the grounds that such disclosure would violate members’ right to privacy and confidentiality. The court first agreed with PSERS that section 8502(i) of the Public Employees’ Retirement Code, 24 Pa.C.S. § 8502(i), directed PSERS to protect the confidentiality of the specific information requested by Rowland as well as other information about annuitants that impacts their privacy rights.

Next, we reviewed prior decisions construing the law’s personal security exception as creating a right to privacy exception under the law and acknowledging a general right to privacy in one’s home address.3 In Rowland this court again recognized that this privacy exception is not absolute and that a balancing test must *1174be applied to determine whether the privacy interests outweigh the public benefits that would result from disclosure. Observing that the benefits asserted would inure to the association, rather than the public at large, the court concluded that the balance favored non-disclosure of the requested information.

The issue before the court in Times Publishing Co. Inc. v. Michel, 159 Pa. Cmwlth. 398, 633 A.2d 1233 (1993), was the extent to which information contained in applications to carry firearms was subject to disclosure under the former RTKL. The court analyzed the disclosure of home addresses under the personal security exception, mindful that personal security was defined as freedom from harm, danger, fear, or anxiety and required a determination that disclosure would be “intrinsically harmful.” Noting the dangers associated with possession of firearms, the court concluded that the personal security exception applied. Ultimately, however, the court determined that, in deciding whether requested information is protected by the personal security exception to the law, the court must apply a balancing test, weighing privacy interests and the extent to which they may be invaded against the public benefits that may result from disclosure.

I disagree with the majority’s conclusion that the personal security exception provided by the former version of the RTKL has been replaced by a personal security exception to which the judicially created privacy right and corresponding balancing test no longer apply. To the contrary, the current RTKL plainly allows for an exception to the general rule of disclosure where personal security is at issue. I submit that the only significant relevant change from the old law is that the burden has been shifted to the public agencies to prove that a record is not “public.”

The Office of Open Records (OOR) argues that the RTKL generally does not exclude home addresses of public school employees; instead, an individual may protect the disclosure of his home address by demonstrating a personal security reason, a factual determination that must be based on evidence presented. I believe that, just as the Supreme Court applied a balancing test to ascertain whether a personal security and therefore, privacy interest had been invaded, the same would apply here. In its March 5, 2009, request to OOR for an advisory opinion, PSEA cited statistics reflecting that, between 1996 and 2000, 559,000 teachers (approximately 28 of every 1,000 teachers) were victims of violent crimes; 3 of every 1000 teachers were the victims of serious crimes, such as rape and aggravated assault; and, in 1999-2000 nine percent of all teachers were threatened with injury by students. PSEA also cited local newspaper reports reflecting that, in Allegheny County, 621 students assaulted teachers in the period from 2000-2006, with 179 of those assaults occurring in 2006.4

Certainly, PSEA has attempted to show that public disclosure of the teachers’ home addresses could jeopardize their personal security, and thus constitute an unwarranted invasion of their personal privacy. Based only on the pleadings, we cannot say with certainty that the law will not permit recovery. Accordingly, I would overrule the preliminary objections and di*1175rect OOR to file an Answer within 30 days.5

. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

. I would emphasize that the harm contemplated by the statute need not be physical, or else the language "or the personal security of" would be superfluous.

. See, e.g., Sapp Roofing Co. Inc. v. Sheet Metal Workers' International Association, 552 Pa. 105, 713 A.2d 627 (1998), and Cypress Media, Inc. v. Hazleton Area School District, 708 A.2d 866 (Pa.Cmwlth.1998).

. While OOR has authority under section 1310(a)(2) to issue advisory opinions, it did not respond to PSEA's request for four months and then replied that the request was moot because it had already issued a number of decisions concluding that home addresses of employees in the possession of an agency generally are public records subject to disclosure under the RTKL.

. The declaratory relief requested in PSEA’s petition cannot be granted without the benefit of a factual record and further argument. To tire extent this matter raises serious constitutional questions, this is not the appropriate procedural posture in which to finally decide those issues.