Office of the Lieutenant Governor v. Mohn

CONCURRING AND DISSENTING OPINION BY

Judge McCULLOUGH.

I agree with the Majority that the request of Daniel Mohn (Requester) seeking government e-mail addresses from the Lieutenant Governor is exempt from disclosure pursuant to section 708(b)(6)(i)(A) of the Right-to-Know-Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(6)(i)(A), even though Requester would clearly have the ability to request e-mails from the same accounts under the RTKL, subject to any statutory exemptions.1

I diverge from the Majority’s holding that there is no right to privacy implicated when the home address of an employee of the Lieutenant Governor’s office is disclosed to the public. In Pennsylvania State Education Association ex rel. Wilson v. Office of Open Records, 4 A.3d 1156 (Pa.Cmwlth.2010) (en banc), vacated and remanded by — Pa. -, 50 A.3d 1263 (2012) (“PSEA”), I authored a dissenting opinion expressing the view that the right to privacy emanating from the “personal security” exception of the former Right to Know Act of 1957 (Right to Know Act)2 continues uninterrupted and in full force and effect to the new “personal security” exemption of the current RTKL. PSEA, 4 A.3d at 1171-74 (McCullough, J. dissenting). I maintain this position today.

As this Court has pointed out, the former Right to Know Act and its successor, the RTKL, both contain the term “personal security” and also an exception dubbed the “personal security exemption.” However, the language enclosing the term “personal security” in the former Right to Know Act was different from that of the RTKL. The personal security exemption of the former Right to Know Act excluded a record that “would operate to the prejudice or impairment of a person’s reputation or personal security.” Section 1(2) of the prior Right to Know Act, formerly 65 P.S. § 66.1(2). On the other hand, the RTKL currently exempts a record that “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” Section 708(b)(l)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii).

Following this Court’s decision in PSEA, we had the opportunity in Delaware County v. Schaefer, 45 A.3d 1149 (Pa.Cmwlth. 2012) (en banc), to discern any distinction between the two provisions. Utilizing the *141canons of statutory construction, we interpreted the term “personal security” in the RTKL in light of its novel surrounding language. In doing so, we observed that “physical harm” and “personal security” were ideas disjunctive in nature and that our Legislature intended “distinct interests by each term.” Schaefer, 45 A.3d at 1154. This Court then isolated and construed the phrase “personal security” as conferring upon an individual a broad-based and diverse right — specifically one that “comprised] innumerable rights, including the right to privacy and confidentiality, and the right to be secure in one’s possessions, monies, investments and benefits, and the freedom from identity theft.” Id. at 1155. Importantly, we stated that “because the term ‘personal security’ was used in both the former and current RTKL, prior judicial authority is controlling in the interpretation of that term.” Id.

Schaefer establishes that the right of privacy is subsumed in the term “personal security” under the current RTKL. Schae-fer further provides that case law interpreting the former Right to Know Act has attached significant legal meaning to the phrase “personal security” and that this meaning is binding or controlling authority when construing the RTKL.

On a variety of occasions, this Court has examined the former Right to Know Act and prohibited the disclosure of home addresses on the ground that the privacy right and personal security of the individual trumped any need for disclosure. See Goppelt v. City of Philadelphia Department of Revenue, 841 A.2d 599 (Pa. Cmwlth.2004) (collecting cases). In Penn. State University v. State Employees’ Retirement Board, 594 Pa. 244, 260, 935 A.2d 530, 539 (2007), our Supreme Court examined the former Right to Know Act and explicitly recognized that an individual’s home address concerns a “basic right to privacy” for purposes of the personal security exemption. Id. (“With regard to the right to privacy in one’s social security number, telephone number or home address, we would have great difficulty concluding that the public interest asserted here outweighs these basic rights to privacy.”) (emphasis supplied). Nearly a year later, in Tribune-Review Publishing Company v. Bodack, 599 Pa. 256, 961 A.2d 110 (2008), the court surveyed previous case law and reaffirmed its previous plurality decision in Sapp Roofing Company v. Sheet Metal Workers’ Internal Association, 552 Pa. 105, 713 A.2d 627 (1998). In so doing, our Supreme Court not only concluded that there exists a privacy right in a home address, but also explained that this right is inexorably tied to the “personal security” of employees. Bodack, 599 Pa. at 265-66, 961 A.2d at 116 (identifying home addresses as personal information, which if revealed, could “potentially impair the personal security of the ... employees”), and Id. at 268, 961 A.2d at 116-17 (concluding that the privacy right in a home address is “pertinent to a person’s personal security”).

Under Bodack the term “personal security” in the former Right to Know Act encompassed, and was indeed inseparable from, the privacy right that an individual has in his or her home address. Pursuant to Schaefer, Bodack’s interpretation of “personal security” is controlling and is transposed to the RTKL; consequently, the phrase “personal security” in the RTKL also includes a right of privacy that protects against the unwarranted disclosure of a home address. For this reason, I am unable to share the Majority’s opinion that the current “personal security” exception of the RTKL does not contain a cognizable privacy right, particularly one that is *142associated with a home address.3

In reaching my position, I recognize that in contrast to the former Right to Know Act, the current formulation of the RTKL requires that the privacy right in an individual’s address must be one that is “reasonably likely to result in a substantial and demonstrable risk.” 65 P.S. § 67.708(b)(l)(ii). While this appears to create a new test upon which to assess the value or nature of a privacy right, the Supreme Court in Bodack observed 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. Private telephone numbers are one such type.

Bodack, 599 Pa. at 265, 961 A.2d at 115-16.

Consistent with Bodack, I believe that the basic privacy right in a home address carries sufficient weight in the calculus that any infringement thereof could constitute a “substantial and demonstrable risk” to the personal security of an individual.

However, and unfortunately, the record in this case does not demonstrate that the individual whose information is to be disclosed has had the opportunity to intervene or has otherwise been given a chance to prove a “substantial and demonstrable risk.” I believe that the Court has an independent duty to ascertain the effect of its orders on the rights of individuals not privy to an action and to inquire as to whether the interests of these absent persons are being adequately represented by the parties. In any event, because this is a RTKL appeal, this Court is entitled to the broadest scope of review and has the authority to allow an interested party/individual to supplement the evidentiary record when necessary. Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth.2010) (en banc) appeal granted in part, 609 Pa. 265, 15 A.3d 427 (2011) (concluding that under the RTKL this Court “has the inherent authority to take reasonable measures to ensure that a record sufficient for judicial review exists.”). See Pennsylvania Housing Finance Agency v. Ali, 43 A.3d 532, 534 n. 7 (Pa.Cmwlth. 2012); Office of the Budget v. Office of Open Records, 11 A.3d 618, 620 n. 6 (Pa. Cmwlth.2011). Pursuant to this authority, I would vacate and remand the matter to the Office of Open Records with the express purpose of permitting the affected individual to submit an affidavit concerning the privacy right he has in his home address. Accordingly, and in this regard, I respectfully dissent.

. Additionally, although the issue was not raised by the parties, I seriously question whether an e-mail address, standing alone, is a "record” under section 102 of the RTKL, 65 P.S. § 67.102. In my view, an e-mail address does not “document a transaction or activity of an agency” — rather, it is a collection of letters, symbols, and/or numbers that are ascribed to a person for communicative purposes.

. Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§ 66.1-66.9, repealed by Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

. Even if the personal security exemption did not include a statutorily-based right to privacy, I agree with my esteemed colleague, Judge Cohn Jubelirer, that such a right is implied in the RTKL because it is guaranteed by the Pennsylvania Constitution.