On May 26, the Pennsylvania Commonwealth Court ruled that personal contact information contained in requests submitted under the Right-to-Know Law may be exempted from disclosure.
In the unpublished decision, Markey v. Treasury Department, No. 759 C.D. 2021, the court explained that the law is not “a mechanism for an individual to access private or nonpublic information.”
The Dispute
Last April, Earl Markey III submitted a RTK request to the Pennsylvania Treasury Department, seeking the first ten requests made under the RTKL received by the Department in 2021. The Treasury’s Open Records Officer provided Markey with the records about a week later. Each record disclosed the requester’s identity, but the ORO had redacted certain contact information, such as the requester’s home address, e-mail and phone number, according to Pennsylvania State Education Association v. Pennsylvania Department of Community and Economic Development.
The Appeal
Markey first appealed to the Department’s Appeals Officer, who determined that the Agency appropriately applied the balancing test set forth in PSEA.
Markey then appealed to the Commonwealth Court, arguing that the requesters had voluntarily provided their personal information when they had sought the records under the RTKL and, therefore, had lost any privacy interest in the information. He also alleged that the Treasury did not know that the information was personal because its RTK form did not specify the type of phone number or address requesters should provide. Markey relied also on the Commonwealth Court’s decision in Butler Area Sch. District v. Pennsylvanians for Union Reform, which was issued after the Supreme Court decision in PSEA.
In response, the Treasury said the RTKL requires requesters to provide the name and address to which the response will be sent. They provided an affidavit stating the process used to review the records to identify whether contact information was personal in nature or related to a business or made available through the internet. In addition, the Agency said providing an individual’s contact information does not further any public interest or serve the purposes of the RTKL to ensure governmental transparency.
The Court’s Ruling
The Court reviewed the PSEA and Butler decisions. The Court found Butler not applicable. In that case, a request was made for addresses contained in property tax assessment records. That record contains “property addresses,” which may belong to a corporation, other entity, or an individual. The listed addresses could not readily be identified as personal in nature and so redaction was not deemed appropriate. In contrast, the request in PSEA specifically sought the home addresses of public school employees. The Supreme Court determined that a balancing test was appropriate when a request for personal information is made.
The Commonwealth Court determined that the Department’s application of the PSEA balancing test to the instant request was appropriate. The Court did not agree with the Department that home addresses are automatically excluded from disclosure. However, the Court emphasized that when an RTK request involves constitutionally protected personal information, the agency releasing the records should apply the PSEA balancing test to determine whether the information should be disclosed.
The Court noted that the Department’s RTKL request form did not include any notes that the form itself would become a public record. Further, some of the requests were submitted via email without using a form at all. Based on this, the Court concluded that the requestors did not voluntarily provide their personal contact information with the understanding that it would be subject to disclosure especially since personal contact information is exempted under RTKL Section 708(b)(6).
Ultimately, the Court said the Agency was correct in redacting the personal information under the RTKL as the requesters “unquestionably have a constitutional right of privacy” in their home addresses. The court also stressed that Markey had failed to explain how the public would benefit if the information were disclosed.
Bottom Line for Schools
When a request is made for records that include personal information such as home addresses, schools should use the balancing test established by the state Supreme Court in the PSEA case. That means they should look at whether the information is exempt from disclosure by the RTKL or whether the information is subject to a constitutional right of privacy that outweighs any benefit in its disclosure. Depending on the facts of the situation, this may warrant a legal review of any disclosure of personal information. Indeed, schools should be hesitant to release home addresses or other personal information and should contact their legal counsel or one of the attorneys at KingSpry before doing so.
