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

CONCURRING OPINION by

Judge McCullough.

I join the Majority’s opinion as it concludes that the lack of procedural due process afforded under the Right-to-Know Law (RTKL)1 violates the expressed intent to protect an individual from personal harm or the risk to personal security that may result from disclosure of certain records.

I also agree with the Majority that our Supreme Court in Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, 616 Pa. 491, 50 A.3d 1263, 1275-76 (2012) (PSEA III), strongly hinted that the statutory scheme of the RTKL, as it pertains to home addresses and the personal security exception in section 708(b)(l)(ii), 65 P.S. § 67.708(b)(1)(ii), implicates and most likely violates procedural due process. (Maj. op. at 1084-85.) I write separately to express the view that our Supreme Court’s concerns in PSEA III are well founded.

The RTKL exempts from disclosure 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)(l)(ii) (emphasis added). Under a traditional procedural due process analysis,2 section 708(b)(l)(ii) of the RTKL confers upon an “individual” an uncondi*1095tional, substantive right to protect his/her right to privacy, including a person’s home address, upon evidence demonstrating that disclosure of such personal information could reasonably pose a risk to the individual’s “personal security.”3 Yet, paradoxically, the RTKL does not grant the individual a procedural mechanism by which to assert this substantive right and make the requisite evidentiary showing, and, in so doing, the RTKL represents an anomaly by simultaneously taking away that which it has granted. Consequently, the individual, although vested with the statutory entitlement to assert his/her privacy interests in an attempt to shield sensitive information from being disclosed to the public, is deprived of this right because, under the RTKL, it exists in theory only and cannot be exercised or vindicated in any delineated manner.

Having concluded that Petitioners possess a property interest in the form of a statutory entitlement, I agree with the Majority that pursuant to the due process clause, individuals must receive notice and an opportunity to be heard before information related to their personal security can be disclosed to the public. As a practical matter, these due process measures must be instilled into the RTKL for this is the only way in which an individual can enforce his/her statutory right to exempt information that threatens his/her personal security. Accordingly, I join the Majority’s decision to grant summary judgment to Petitioners on Counts IV and V of Petitioners’ First Amended Petition for Review.

Moreover, I write separately to emphasize that, while we are bound by the majority opinions in Office of Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa.Cmwlth. 2013) (en banc), and its companion, Office of the Governor v. Raffle, 65 A.3d 1105 (Pa.Cmwlth.2013) (en banc), concluding that there is no constitutional right to privacy in one’s home address under the Pennsylvania constitution, our Supreme Court has not issued an explicitly similar ruling or definitively resolved the issue. As the Majority recognizes, the Supreme Court’s decision in Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455, 459 (2003), did not hold that an individual would never have a constitutionally protected expectation of privacy in his or her home address. For the reasons set forth in my minority opinions in Mohn and Raffle, I would conclude that a constitutional right of privacy in one’s home address is implied into the “personal security” exception as a matter of law. See Mohn, 67 A.3d at 141-42 n. 3 (McCullough, J., concurring and dissenting). However, this Court is not writing on a clean slate, and abiding by the majority’s holdings in Mohn and Raffle, I agree with the Majority’s decision in this case to dismiss Counts I, II, and III of Petitioners’ First Amended Petition for Review.

. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.

. To maintain a due process challenge, a party must establish the deprivation of a protected property or liberty interest. Miller v. Workers' Compensation Appeal Board (Pavex, Inc.), 918 A.2d 809, 812 (Pa.Cmwlth.2007). "Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). If such a property interest is established, the due process clause, in general, requires reasonable notice and opportunity to be heard before governmental action may deprive an individual of that property interest. United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).

. Although a minority of the members of this Court have expressed the belief that the term "personal security” embodies a constitutional right to privacy in one’s home address, see Office of Lieutenant Governor v. Mohn, 67 A.3d 123, 134-39 (Pa.Cmwlth.2013) (en banc) (Cohn Jubelirer, J., concurring); id. at 141-42 n. 3 (McCullough, J., concurring and dissenting), an en banc panel of this Court has interpreted "personal security” to include at least a statutory-based right to privacy. Delaware County v. Schaefer, 45 A.3d 1149, 1156 n. 10 (Pa.Cmwlth.2012) (en banc). This author has advocated the position that the privacy right associated with an individual’s home address is encompassed within the term "personal security” as a matter of judicial construction or, alternatively, is implied as a matter of constitutional law. See Mohn, 67 A.3d at 140-42 (McCullough, J., concurring and dissenting).