Office of the Lieutenant Governor v. Mohn

CONCURRING OPINION BY

Judge COHN JUBELIRER.

I agree that the Right to Know Law1 (RTKL) does not provide unconditional protection for home addresses. However, where, as here, the issue is raised, we must examine the Pennsylvania Constitution to determine whether the right to privacy affords protection in an individual case. The majority opinion states unequivocally that an individual can never assert a constitutional right to privacy in his or her home address under the Pennsylvania Constitution. Because I believe the majority opinion goes too far in making this declaration, I, respectfully, cannot join in the opinion.

I admire the majority’s valiant effort to provide a “short history of the right to privacy vis a vis public records” particularly in an area recognized as so “fraught with challenge.” Office of the Lieutenant Governor v. Mohn, 67 A.3d 123, 127 (Pa. Cmwlth.2013). Considerable confusion has arisen regarding the nature of this constitutional inquiry, and its place in the statutory construction of the provisions of the various RTKLs over the years.2 I, therefore, begin with some basic legal propositions.

First, our Court should not reach a constitutional question unless it is specifically raised by the parties.3 For example, in Young v. Armstrong School District, 21 *135Pa.Cmwlth. 203, 344 A.2d 738, 740 (1975), this Court found that the old RTKL did not contain any “clause or provision to protect against the invasion of an individual’s privacy” and distinguished between the personal security exception and a right to privacy. In reaching this determination, the opinion in Young does not even intimate that a constitutional challenge was raised, and does not engage in a constitutional analysis. Thus, Young cannot assist us in a constitutional inquiry. It would be a separate inquiry, and only if it is specifically raised, that would allow a court to reach the constitutional question, which is whether, notwithstanding the statutory language in the RTKL, the Pennsylvania Constitution nonetheless protects ah individual’s right to privacy in a given case.

Second, a court will reach the constitutional issue only if the case before it cannot be resolved on non-constitutional grounds.4 Thus, whether or not the RTKL actually contains a clause or provision that protects an individual’s right to privacy is the first inquiry.

Finally, where a right is protected by the Pennsylvania Constitution, a statute cannot reduce or eliminate that right.5 Therefore, to the extent a right to privacy exists under the Pennsylvania Constitution, the RTKL and its provisions cannot limit or circumscribe the contours of that right.

The right to privacy in the Pennsylvania Constitution can be found in Article I, Sections 1 and 8.6 There is no precise counterpart to Article I, Section 1 of the Pennsylvania Constitution in the United States Constitution. Scholars have stated that the right to privacy “is perhaps the most broadly protected of all of the rights safeguarded under Section 1, and it likely will be further expanded in future years.”7 The Pennsylvania Courts have, at times, interpreted Article I, Section 8 to provide greater protection for the rights of privacy and reputation than have been afforded under the United States Constitution.8 Moreover, “the courts of Pennsylvania have recognized independent constitutional protections for privacy under the Pennsylvania [CJonstitution in three dimensions: protection against governmental efforts to *136obtain information about individuals, protection against dissemination of ‘private’ information, and protection of ‘private’ actions and arenas from governmental intrusion and regulation.”9 The Pennsylvania Supreme Court has stated that the right of privacy involves a freedom from disclosure of personal matters and freedom to make certain important decisions.10 The privacy protections are not absolute, and the Supreme Court has used a balancing test, which balances “an individual’s right to privacy against a countervailing state interest which may or may not justify, in the circumstances, an intrusion on privacy.” Denoncourt v. State Ethics Commission, 504 Pa. 191, 199, 470 A.2d 945, 948 (1983) (Plurality).11

Given this background, I do not read our Supreme Court’s decision in Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (2003), as holding that an individual can never establish a right to privacy in a home address under Article I, Sections 1 or 8 of the Pennsylvania Constitution. In Duncan, the police asked a bank for the name and address of the holder of a bankcard that their investigation led them to believe had been used by a suspected rapist. To determine whether Duncan had a constitutional right to privacy in his name and address, such that the evidence should be suppressed, our Supreme Court used a two-part test which “ ‘requires a person to (1) have established a subjective expectation of privacy!;] and (2) have demonstrated that the expectation is one that society is prepared to recognize as reasonable and legitimate.’ ” Duncan, 572 Pa. at 452, 817 A.2d at 463 (quoting Commonwealth v. Gordon, 546 Pa. 65, 71, 683 A.2d 253, 256 (1996)).12 In that case, our Supreme Court *137opined “that any subjective expectation of privacy that appellant may have had in the name and address information is not an expectation which society would be willing to recognize as objectively reasonable in light of the realities of our modern age.” Id. at 455-56, 817 A.2d at 465-66. However, our Supreme Court did specifically allow that there could be a reasonable expectation of privacy where an individual has taken “specific action to have his information treated differently and more privately.” Id.

While it is true that in our modern, technological society, information about individuals may be more easily found, particularly on the internet as evidenced by the author of the majority opinion performing his own internet search,13 there may be individuals who, for whatever personal reason, have taken action to protect their information. Personal security fears are recognized by society as objectively reasonable; for example, protecting the address of an individual in the witness protection program or a victim of abuse. There may be other reasons to protect personal information as well, such as individuals who have been the victims of identity theft, or are afraid of becoming a victim, and have taken extra precautions to keep personal information off the internet; for example, by renting an apartment (and, therefore, might not be found on Zillow). One significant constitutional deficiency with the statutory scheme of the RTKL is that there is no statutory requirement that the individual whose information is to be disclosed be provided with notice of a RTKL request or be given the right to participate. See Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1032 (Pa.Cmwlth.2011) (Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c)(1), “does not allow a person with a direct interest to assume a status in the Open Records proceedings on par with either the request[o]r or the agency.”) Without a statutory right to participate in the RTKL proceedings or a right to appeal a determination, an individual is not afforded the opportunity to establish his or her reasonable subjective expectation of privacy. See Allegheny County, 13 A.3d at 1032 (Section 1101(c) does not provide a third party with a direct interest a right to appeal the OOR’s final determination “as that right is conferred only upon ‘a request[o]r or the agency.’ ”).

This due process deficiency in the RTKL, created by the lack of statutorily required notice to and the right to fully participate in the proceedings by the individual whose information will be disclosed, was recently highlighted by our Supreme Court in a case involving the disclosure of the names and home addresses of public school teachers. Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, — Pa. -, 50 A.3d 1263 (2012) (PSEA). While the main issues in this case before the Supreme Court dealt with questions of jurisdiction and the party status of the OOR, the Court also discussed the privacy interests at stake and the concern that individuals are notified prior to their personal information being disseminated:

As a threshold matter, Appellants have amply established that — although school employees have (at the very least) a colorable interest in the grant or deni*138al of RTKL requests for their personal address information — the RTKL does not make them parties to the request or the ensuing appeal process. Indeed, affected school employees are not so much as afforded required notice of requests and/or proceedings before the OOR. While the OOR portrays itself as a quasi-judicial tribunal relative to Appellants’ interests, it offers an exceptionally weak rejoinder to Appellants’ 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 thé school employee may or may not be aware of any further appeal proceedings in the judiciary.

Id. at-, 50 A.3d at 1274-75 (footnote omitted). Importantly, for the analysis in this case, the Supreme Court did not accept the OOR’s argument that Duncan had already held that home addresses are not protected by Article I, Sections 1 or 8 of the Pennsylvania Constitution; had it done so, there arguably would have been no reason to remand the case for further proceedings. However, the Supreme Court did remand the case while noting that due process was a prominent concern underlying its decision. PSEA, — Pa. at -, 50 A.3d at 1277 n. 11. I believe the Supreme Court’s opinion in PSEA further cautions us against reading Duncan as broadly as does the majority.

I also would not read our Supreme Court’s recent per cunam affirmance of this Court’s single judge opinion in Marin v. Secretary of the Commonwealth, 41 A.3d 913 (Pa.Cmwlth.2012) (Pellegrini, J.), aff'd per curiam, — Pa. -, 66 A.3d 250 (2013),14 as resolving the address issue. Marin is a cautionary example of how the separate analyses required under the RTKL and the Pennsylvania Constitution can become muddled. In Marin, a candidate for public office argued that Section 910 of the Election Code,15 requiring a candidate to disclose his personal residence information on his candidate’s affidavit, was unconstitutional. Marin confusingly framed his argument as if the RTKL applied to the Election Code. Predictably, “Marin’s attempt to apply provisions of the [RTKL] to the Election Code in order to determine what information can be made available to the public is completely merit-less as this case does not involve a right-to-know request.” Marin, 41 A.3d at 915 n. 4. Given these facts, it is not surprising that the opinion ultimately determined that the home address requirement at issue did not violate the right to privacy in that case. The Marin decision noted “that there is a compelling reason to require candidates for elected office to provide their home address on their nomination forms as every candidate must be qualified for the position he seeks.” Id. at 916. That is, similar to Duncan, any subjective *139expectation of privacy that a candidate for public office may have in his home address is not objectively reasonable given residency requirements to run for office and the necessity that the public be informed about those who affirmatively place themselves in the public arena for elective office. Thus, the decision is consistent with an individualized application of the balancing test. Moreover, the Supreme Court’s per curiam affirmance of Marin reflects nothing more than affirming the order and not the rationale for the holding that Section 910 of the Election Code does not violate the Pennsylvania Constitution.16 Given our Supreme Court’s recent action in PSEA, discussed herein, I would exercise considerable caution in expanding the application of the Marin per curiam affir-mance.

I respectfully believe that it is too soon to ring the death knell of the right to privacy protected by the Pennsylvania Constitution and to sweepingly declare that under no circumstances could any individual prove such a right in his or her home address. While I agree in this modern age that such circumstances might be rare, I cannot say with certainty that they will never exist. Moreover, I am troubled at rendering this sweeping declaration when the individual whose address is being disclosed is not afforded the right, under the RTKL, to receive notice and an opportunity to prove the existence of the constitutional interest before we make our decision.

In this case, the affidavit was not specific enough to meet the personal security exception under the RTKL. In addition, there was no evidence of the individual’s subjective expectation of privacy in her address, or of the reasonableness of the expectation, in order to meet the Constitutional two-part test. Although the individual whose address was requested, and who might have been able to make the requisite showing to support either the application of the personal security exception or the violation of her right to privacy, has not been statutorily afforded the right to be heard prior to disclosure of the information, there was no argument that the statute is constitutionally infirm on that basis. I, therefore, am constrained to concur in the result only of the majority opinion.

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

. I note that the cases balancing a person’s constitutional right to privacy with the personal security exception under the old RTKL do not clearly separate the Pennsylvania Constitution from the statutory law.

. In general, matters not raised in the court below cannot be considered on appeal even if they involve constitutional questions. Altman v. Ryan, 435 Pa. 401, 407, 257 A.2d 583, 585 (1969). See also Pa. R.A.P. 1551 ("No question shall be heard or considered by the court which was not raised before the government unit.”).

. "It is well settled that when a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds.” Ballou v. State Ethics Commission, 496 Pa. 127, 129, 436 A.2d 186, 187 (1981).

. A statute will be found to be unconstitutional if it is proven that the law clearly, palpably and plainly violates a fundamental constitutional right, such as the right to privacy. Nixon v. Commonwealth, 576 Pa. 385, 399-400, 839 A.2d 277, 286-87 (2003).

. Article I, Section 1 of the Pennsylvania Constitution provides:

All men are born 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. I, § 1. Article I, Section 8 provides:

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. I, § 8.

. Ken Gormley, Jeffrey Bauman, Joel Fish-man, Leslie Kozler, The Pennsylvania Constitution, A Treatise on Rights and Liberties 87 (2004).

. See, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), and cases cited therein.

. Seth F. Kreimer, The Right to Privacy in the Pennsylvania Constitution, reprinted in Gorm-ley, The Pennsylvania Constitution 786.

. Denoncourt v. State Ethics Commission, 504 Pa. 191, 197-98, 201-02, 470 A.2d 945, 948, 950 (1983) (Plurality) (found a constitutional right to privacy grounded in Article I, Section 1 of the Pennsylvania Constitution).

. See also Sapp Roofing v. Sheet Metal Workers' International Association, Local Union No. 12, 552 Pa. 105, 111, 713 A.2d 627, 630 (1998) (requiring redaction of personally identifying information regarding workers on public project before payroll records were released); The Pennsylvania State University v. State Employees’ Retirement Board, 594 Pa. 244, 259, 935 A.2d 530, 538 (2007) (holding that the non-party employees’ “privacy rights are insufficient to outweigh the public interest in publication of the factual bases for, and details of, guaranteed disbursements of Commonwealth funds"); Hunt v. Pennsylvania Department of Corrections, 698 A.2d 147, 150 (Pa.Cmwlth.1997) (prisoner’s medical records were not public records under former RTKL).

. We note that Duncan was a criminal case; however, the two-part test for establishing whether there was an expectation of privacy was enunciated by the United States Supreme Court in the context of federal constitutional interpretation, and has been applied to both criminal and civil cases.

"[T]he Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus[,] a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.

Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J„ concurring). Duncan "never testified whether he believed that his bank would keep his name and address private, nor did he present any evidence from his bank suggesting what level of privacy, if any, it promised its customers.” Duncan, 572 Pa. at 443, 817 A.2d at 458. Similarly, here, the Office of the Lieu*137tenant Governor has not presented any evidence of whether the individual employee, whose home address is being requested, had a subjective expectation of privacy in her information.

. See Office of the Lieutenant Governor, 67 A.3d at 130 (citing http://www.zillow.com and http://www.whitepages.com).

. The majority opinion correctly notes that this opinion is not precedential. Office of the Lieutenant Governor, 67 A.3d at 130 n. 10.

. Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2870.

. As recently noted by our Supreme Court, when it "issues a per curiam affirmance, '[u]nless we indicate that the opinion of the lower tribunal is affirmed per curiam, our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition.' ” In re Stevenson, 615 Pa. 50, 57 n. 5, 40 A.3d 1212, 1216 n. 5 (2012) (quoting Commonwealth v. Tilgh-man, 543 Pa. 578, 589, 673 A.2d 898, 904 (1996) (emphasis in original)). Accordingly, as the Supreme Court’s per curiam affirmance of Marin only affirmed the order, the per curiam affirmance did not adopt this Court’s rationale in Marin.