Commonwealth, Governor's Office of Administration v. Pennsylvanians for Union Reform, Inc.

DISSENTING OPINION BY

Judge COHN JUBELIRER.

I respectfully dissent. Rather than affirm the Office of Open Records’ (OOR) Final Determination, I believe this matter should be remanded to the OOR to examine, as requested by the Governor’s Office of Administration (OA), the evidence submitted by numerous Commonwealth agencies in a case involving the same Requester, Pennsylvanians for Union Reform v. State Employees Retirement System (PFUR v. SERS), OOR Dkt. AP 2013-1830.

The Majority holds, for the first time, that county of residence is not a component of home address and, therefore, OA may only withhold Commonwealth employees’ county of residence where it separately demonstrates that disclosure of county of residence, by itself, satisfies the requirements of an exception under Section 708(b) of the Right-to-Know Law (RTKL).1 Thus, under the rule adopted by the Majority, OA would have to demonstrate that disclosure of county of residence, alone, “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 order to properly withhold county of residence information. However, the OOR’s decision to ignore OA’s request for the OOR to take notice of the evidence submitted by OA in the similar case of PFUR v. SERS denies OA and Commonwealth employees the opportunity to demonstrate that access to county of residence information should be withheld.2

The important purpose of the RTKL, promoting transparency in government, does not come without cost and the reality is that there can be a costly burden imposed on Commonwealth agencies in complying with broad RTKL requests. For example, in PFUR v. SERS, nearly twenty separate Commonwealth agencies submitted over 3,500 pages of briefs, affidavits, and job descriptions in support of the RTKL personal security exemption. However, there is no reason that these justifiable costs need to be made greater than necessary. In its response to the OOR’s invitation to submit information to support *74its position in this matter, instead of attempting to compile new materials for nearly 10,000 employees, OA respectfully requested “that the OOR permit OA to incorporate herein by reference the briefs and affidavits completed by the Commonwealth agencies as directly interested third parties” in PFUR v. SERS. (OA’s Response at 2, R.R. at 3701a.) As support for this request, OA informed the OOR that “[t]he significant effort which was undertaken to create [the] materials [for PFUR v. SERS] in a timely fashion cannot easily be duplicated by the agencies, nor should it have to be where ... the materials are recent and responsive as they stand.” (OA’s Response at 2, R.R. at 3701a.) Because considerable taxpayer funds were already expended as a result of the time and effort needed to support RTKL exceptions in PFUR v. SERS, efficiency should dictate that the OOR at least examine the materials already compiled for that case. The Majority’s opinion does not consider the .taxpayer savings that would be accomplished through this — particularly where no statute or rule requires this unnecessary duplication of effort.

While the Majority finds that the materials from PFUR v. SERS are largely irrelevant, I believe that their relevance has increased following the unappealed determination by the OA Open Records Officer that the home address information for 9,444 employees in this matter is exempt from disclosure pursuant to the personal security exception.3 Because there has already been a conclusion that a substantial and demonstrable personal security risk exists if OA employeés’ home address information is released, these materials have acquired additional relevance for proving whether county of residence information for these Commonwealth employees should also be exempt from disclosure.

The Majority assumes that the evidence submitted for PFUR v. SERS would not change the outcome of this case because those materials were submitted to provide justification for withholding home address rather than county of residence information and, thus, that there is no need to remand this matter to the OOR: In support of this assumption, the Majority points out that “this Court may exercise functions of a fact-finder, and has the discretion to rely upon the record created below or to create its own.” Commonwealth, Governor’s Office of Administration v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61, 67 n. 12, 2014 WL 6481258 (Pa.Cmwlth.2014) (citation omitted). While the Majority is correct that this Court may exercise the functions of a fact-finder, Department of Labor & Industry v. Heltzel, 90 A.3d 823, 828 (Pa.Cmwlth.2014), this Court has not actually exercised this function by accepting the materials from PFUR v. SERS into the record and then making findings of fact and conclusions of law based upon an examination of this evidence. Therefore, in the absence of this Court engaging in actual fact finding, the Majority’s assumption that the evidence from PFUR v. SERS would not change the outcome in this case is unsupported. I believe that either this Court or the OOR should make findings based on a review of the materials from PFUR v. SERS to determine whether disclosure is reasonably likely to result in a substantial and demonstrable personal security risk to any of the affected Commonwealth employees if their county of residence information is released.

*75The reason I believe a fact finder should make findings based on the materials from PFUR v. SERS4 is that a cursory review illustrates real and demonstrable security risks that certain Commonwealth employees face each day at work. In one affidavit submitted for PFUR v. SERS, the affi-ant asserts that at a state hospital run by the Department of Public Welfare (DPW), “[a] resident with a history of sexual abuse has told various employees that he will come to their homes and rape their children.” (R.R. at 104a.) In another affidavit, submitted by the Bureau of State Licensing of the DPW, the affiant asserts that one “employee was beaten while executing a closure of a home” while a second “employee was held at knife point for several hours while conducting an investigation of a home operating without a license by the two illegal operators.” (R.R. at 114a.) Whether these extreme personal security risks might support exempting the release of county of residence information where, as here, a determination has already been made that their home ■ address information is exempt from disclosure, should be determined based on fact not assumption. In a third affidavit, Michael D. Klopotoski, the Eastern Regional Deputy Secretary of the Pennsylvania Department of Corrections, asserts that he is subject to retaliation and harassment and that “retaliation takes the form of threats, harassment, assaults, or physical harm, or the filing of fraudulent liens or other financially damaging documents against me.” (R.R. at 2394a (emphasis added).) I note that liens are filed at the county level, and Mr. Klopotoski has a rather unique last name. Thus, whether releasing his county of residence could lead to a retaliatory lien being filed against him, should likewise be determined.

These are just three examples from the thousands of pages of materials that OA requests the OOR incorporate by reference. My analysis of this issue is not specific to the particular request before us, nor this Requester’s motivation for requesting county of residence information, which may be perceived as laudable; instead, because the principle we apply here will apply in. future cases, and because a requester does not have to provide a reason for requesting information, our job is to apply the statutory protection the legislature has created to protect Commonwealth employees from harm. Even though an examination of materials from PFUR v. SERS may not result in a different determination, I believe that the Majority errs by neither remanding the matter to the OOR to examine the materials nor, in the alternative, accepting the materials into the record for this Court to examine, as fact-finder, so that the statutory standard can be applied.

Moreover, I believe the Majority’s attempt to analogize the proceedings of the OOR to those of a court does not take into account the RTKL’s unique statutory scheme. Under Section 1102(b) of the RTKL, 65 P.S. § 67.1102(b), the OOR is permitted to adopt procedures for RTKL appeals. Section 1102(b) provides that:

(1) If an appeal is resolved [by the OOR] without a hearing, 1 Pa.Code [§§ 31.1-35.251] (relating to general rules of administrative practice and procedure) do[] not apply except to the extent that the agency has adopted these chapters in its regulations or rules....
*76(2) If a hearing is held, 1 Pa.Code [§§ 31.1-35.251] shall apply unless the agency has adopted regulations, policies or procedures to the contrary under this subsection.
(3) In the absence of a regulation, policy or procedure governing appeals under this chapter, the [OOR] shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the dispute.

65 P.S. § 67.1102(b). In interpreting Section 1102(b), this Court held that “a court reviewing an appeal from the OOR ... should consider the manner of proceeding most consistent with justice, fairness, and expeditious resolution. For example, should a hearing be necessary for proper review, a court may consider that a hearing before ... OOR ... is not attended with the same formality as in court.” Bowling v. Office of Open Records, 990 A.2d 813, 823 (Pa.Cmwlth.2010) (emphasis added), aff'd, 621 Pa. 133, 75 A.3d 453 (2013). Because typical administrative practice and procedure is often inapplicable to the OOR,5 65 P.S. § 67.1102(b)(1), and the OOR is not subject to the same formalities as courts, an examination by the OOR of the evidence from PFUR v. SERS would be most consistent with a just, fair, and expeditious resolution of this matter. Bowling, 990 A.2d at 823.

For the foregoing reasons, I would vacate the OOR’s Final Determination and remand this matter for it to take notice of, and consider in this matter, the evidence submitted in PFUR v. SERS.

. Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b).

. I also note that the OOR denied requests to participate in this case made by some of the employees affected by this RTKL Request. (Final Determination at 3.)

. Following Requester's initial request for the home address and county of residence information for 15,438 employees, OA disclosed the requested personal information of 5,994 employees while withholding the personal information of the other 9,444 employees.

. As the Majority points out, the materials from PFUR v. SERS were not part of the record before the OOR in this matter; therefore, these materials are not part of the record certified to this Court by OOR. OA has included copies of the materials submitted in PFUR v. SERS in the reproduced record in this matter.

. Even in instances where the General Rules of Administrative Practice and Procedure apply to the OOR, the rules allow that “any portion of the record in any other proceeding before the agency” may be offered into evidence if "shown to be relevant and material to the instant proceeding.” 1 Pa.Code § 35.167.