Office of the Governor v. Raffle

CONCURRING OPINION BY

Judge COHN JUBELIRER.

I respectfully concur in the result only in this matter for the same reasons set forth in my concurring opinion in Office of the Lieutenant Governor v. Daniel Mohn, 67 A.3d 123, 2013 WL 1749552 (Pa.Cmwlth., No. 1167 C.D.2012, filed April 24, 2013) (Cohn Jubelirer, J., concurring). The 39 public employees whose counties of residence and middle names are the subject of this request are not entitled under the Right to Know Law1 (RTKL) to notice or the right to participate in the proceed*1112ings.2 Although, as with the address at issue in Mohn, it may be unlikely that the individuals would have been able to demonstrate an infringement of their right to privacy, I do not believe that it is impossible.

In this case, as in Mohn, 67 A.3d at 129-32, 2013 WL 1749552, at *4-6 (majority opinion), the affidavit purporting to prove that the employee’s county of residence or middle name is exempt from disclosure was not specific enough to meet the personal security exception set forth in Section 708(b)(l)(ii) of the RTKL.3 65 P.S. § 67.708(b)(1)(ii). In addition, there was no evidence of the employee’s subjective expectation of privacy in his or her county of residence or middle name, or of the reasonableness of the expectation, in order to meet the constitutional two-part test described in Commonwealth v. Duncan, 572 Pa. 438, 452, 817 A.2d 455, 463 (2003). However, since there is no argument in this appeal that the RTKL is constitutionally infirm due to a deprivation of due process rights because of the lack of a statutory right to notice and an opportunity to be heard by the employees whose counties of residence and middle names were requested, I concur only in the result of the majority opinion.

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

. I do agree, however, with the majority's observation that the Governor's home address is subject to public disclosure under the RTKL because it is "already publically available because all candidates for public office are required to file an affidavit and nomination petition with the Department of State specifying their residence, including street and number.” Office of the Governor v. Andy Raffle, 65 A.3d 1105, 1109 n. 5, 2013 WL 1749563, *2 n. 5 (citing Sections 910 and 952 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2870, 2912). As further noted by the majority, "[rjecords filed with the Department of State are public records under the Election Code.” Id. (citing Section 202 of the Election Code, 25 P.S. § 2622).

. The affidavit submitted by the Office of the Governor treated an individual’s county of residence as a component of the home address; therefore, the affidavit only describes home addresses in general and does not contain any specific averments regarding an individual's county of residence. (Affidavit, R.R. at 55a-63a.) Because the majority in Mohn held that there is never a constitutional right to privacy in a home address, it found that rationale "is equally applicable to the release of an employee's county of residence if it is contained in a public record.” Raffle, 65 A.3d at 1109, 2013 WL 1749563, at *2.