No private organization should have its employees be given taxpayer-guaranteed PSERS' pensions.

[Video]: "We shouldn't be doing it ...some of these associations actually lobby against the taxpayer as far as help building up education costs" - State Senator Mike Folmer.


PA SCHOOL BOARDS ASSOCIATION (PSBA) "GUIDANCE" FOR SCHOOL DISTRICTS:

PSBA's amazing position is that Requesters of public records of school districts have no legal right to have the records sent to them under the Right to Know Law! It's in PSBA's own words (scroll to bottom for highlights).

Source: Emily Leader, PSBA Lawyer &  Stuart Knade, PSBA Senior Lawyer. See e-mails below. Scroll to bottom and read Knade discuss "Copies of records" to see PSBA's attitude. These two PSBA e-mails relate to a statewide Right to Know Law request made by Simon Campbell, president of Pennsylvanians for Union Reform on 3-27-17. On 5-15-17 they were released as public records here and here by the Rochester Area School District.


PSBA's 2015 Statewide Right to Know Law Request of Charter Schools

On May 15, 2015 using a customized form PSBA filed a Right to Know request statewide of Charter Schools.  It made the news. Clearly, PSBA was not envisioning needing to visit each and every charter school to obtain public records. And as stated, PBSA wanted the records in convenient electronic form. PSBA's hypocrisy is on full display as it has no problem with statewide requests when pursuing its own agenda. Let us not forget that PSBA as a private corporation is taxpayer-funded itself yet unlike charter schools PSBA is not in the business of educating a single student.

From: Emily Leader
Date: March 28, 2017 at 8:48:28 PM EDT
To: Emily Leader
Subject: Campbell RTKL Request

TO:  School Solicitors and Open Records Officers

RE:  Simon Campbell request sent by first class mail to 821 entities

March 28, 2017

 

Dear Colleagues:

 

PSBA has heard from many of you about the statewide Right-to-Know Law (RTKL) request made this week by Simon Campbell.  Per his website, he mailed this to public school districts, charter schools, CTCs, IUs and public universities and community colleges.  Mr. Campbell encouraged you to review a 16-minute video in which he tells you that he’s willing to have you create a record on agency letterhead which provides answers to his request.  He suggests that all the items requested are public record or should be released based on exercise of agency discretion.  He asks that you save him time by providing him items electronically, putting your agency name in the subject line, etc.  He indicates that those of you who are considering denying any of this request will see him in a court of law and the court of public opinion. 

 

WHILE I AM PROVIDING YOU MY THOUGHTS/GUIDANCE ON YOUR RESPONSE TO THIS REQUEST BELOW, THIS REQUEST ALSO GIVES US AN UNUSUAL OPPORTUNITY TO GATHER AND PROVIDE INFORMATION ON HOW THE RTKL IMPACTS YOU:

 

Good news:

H.R. 50

On March 21, 2017, the Pennsylvania House of Representatives unanimously adopted House Resolution 50, which directs the Legislative Budget and Finance Committee to conduct a comprehensive review of the fiscal impact of the RTKL on agencies and to make recommendations on amendments to the law.  The house recognized that agencies are devoting scarce resources to responding to RTKL requests.  Here is a link to the resolution which PSBA fully supports:  http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2017&sessInd=0&billBody=H&billTyp=R&billNbr=0050&pn=0425

 

HELP!

Even though it is true that Mr. Campbell always receives my emails from one or more of you and can later request this information from you, I think it would be very informative if all of you would provide PSBA with the following information:

 

  1. How much time did it take each agency employee who worked on the request to locate responsive records, redact them if necessary, duplicate or scan them, refile them if necessary and prepare the written response to this request?
  2. What was the total cost in salary and benefits to your school entity to have your employees devote such time to this request?
  3. Did you involve an attorney and how much did you spend on legal fees associated with this request?

 

This would give us up to date pertinent information that allows us to demonstrate the actual costs associated with responding to a single statewide request.  Note:  One business manager spent around two hours responding to this in the manner suggested by Simon but notes that it would have taken longer if their database did not already segregate different payroll deductions into different files.

 

REVIEW OF MR. CAMPBELL’S REQUEST AND APPLICABLE LAW

NOTICE:  To ensure you are not unpleasantly surprised, and to be safe, PSBA recommends you take a thirty-day extension and provide each of your unions with a copy of this request, inviting them to provide you with any legal objections by a deadline which leaves you sufficient time to provide your final response to Mr. Campbell.  Based on my review of the request, however, I am giving you my opinion on what a final response is likely to be. 

 

INFORMATIONAL PRIVACY:

 

It is possible that individuals could claim they have a privacy interests in some of the requested information pursuant to the decision in Pennsylvania State Education Association v. Commonwealth, et al, 148 A 3d 142 (Pa. 2016).

 

The Court held individuals have a constitutional right to privacy in their home addresses under Article 1, Section 1 of the Pennsylvania Constitution.  In general, individuals have a right to “informational privacy” which may not be violated unless this right is outweighed by a public interest favoring disclosure.”   The Court found that in this case there is no public interest in disclosing the school employees’ home addresses in response to this request which outweighs their interest in privacy in their home addresses.  It noted, “To the contrary, nothing in the RTKL suggests that it was ever intended to be used as a tool to procure personal information about private citizens or, in the worst sense, to be a generator of mailing lists. Public agencies are not clearinghouses of “bulk” personal information otherwise protected by constitutional privacy rights.”

 

If someone asks for individuals’ private information which is in the school district’s possession, you should deny the request unless the requester provides sufficient information to establish the public interest outweighs the privacy interest. Remember that things like salaries and other compensation are public.  However, home addresses are not.  We do not have an exhaustive list of what is covered and what is not covered by the right to informational privacy. For those non-lawyers receiving this, you will certainly need to get legal advice when you want to assess whether informational privacy rights are implicated by a request under the Right-to-Know Law.

 

Request #1: The e-mail address and fax number the agency uses to receive RTKL requests.

This is public record.  All of you are required by the RTKL to post this at your agency and on your website.  65 P.S. §67.504.  If, by chance, you do not have a fax number at all, you need to explain in your response that there are no fax numbers in existence. 

Conclusion regarding Request #1:  Provide access to this.

 

Request #2: The e-mail address of the agency solicitor(s) that represents the agency in RTKL disputes.  NOTE:  Part of this response also is relevant to Request #3.

 

  • As to attorneys who are not actually employees/staff within your school district, it is my opinion that their private email addresses are exempt from access.
    • 65 P.S. §67.708(b)(6) makes personal identification information exempt from access, to include “personal email addresses.”  Such private citizen email addresses, even if found in agency records, are exempt from access and would have to be redacted.

 

  • As to attorneys employed by the district, individual email addresses may also be exempt from access. Per the case cited by Mr. Campbell:

 

…we conclude that the OOR correctly determined that the e-mail addresses at issue could be divided into two categories: those e-mail addresses that were not held out to the public or publicly accessible and those that were held out to the public as places where faculty and coaches could be contacted. As OOR held and consistent with our case law applying the personal identification information exemption to agency-issued e-mail addresses, we agree with that differentiation and with OOR's determination that the former type of e-mail addresses should be protected from disclosure and the latter should be subject to disclosure.

Pennsylvania State System of Higher Education v. The Fairness Center, No. 1203 C.D. 2015 at 1. (Pa. Cmwlth. March 30, 2016) OPINION NOT REPORTED.

Conclusion regarding release of email addresses:  If your district puts on its website individual email addresses, those addresses which are responsive to this request must be provided. If, however, there is a general email address or a “send a message” link from the website which is how the public would contact agency employees, it is that information that you should provide. All email addresses that are personal to an individual are exempt from access. 

 

Request #3:  The name, agency-issued e-mail address, and agency building address (i.e. work address) of all agency employees who are presidents of local Unions with whom the agency has a currently enforceable collective bargaining agreement, and the full name of each associated Union.

  • Caution:  It is possible that your unions will raise arguments about granting this request and you should consider their position in addition to this should they have notice of this request.  Except for email addresses, it unclear to me at this point what the legal arguments against providing their president’s names, union names and district mailing address, but I could be surprised. 
  • Names of employees are per se public record and so is the position of an employee.  65 P.S. §67.708(b)(6)(ii). 
  • Records in your possession are presumed to be public unless they are exempt under the RTKL, privileged or exempt under law or judicial orders.  Although position of “union president” is not an agency position, the name of the president of each of your unions is likely included in agency records in your possession, together with the full name of the union.  Thus far, the courts have not suggested that writing to a public employee at a work mailing address implicates privacy concerns.
  • Email addresses are public or not public in accordance with the information provided regarding Request #2.  If you publish them on your website, the record is a public record in my opinion.  If not, it is not. 

 

Conclusion:  Evaluate any legal arguments/objections made by your employees regarding this request.  It is likely you will decide that records showing the name, work address where mail would be received by the employee and the full name of the local are public and should be provided.  Regarding emails, it is likely the comments on Request #3, above apply.

 

Request #4:  In electronic format only (i.e. pdf or .doc file or similar): copies of all collective bargaining agreements that the agency has negotiated with any and all local Unions which are currently enforceable. Please note I do not request, and will not accept as responsive, any paper copies.

  • Collective bargaining agreements are public records.  Under the RTKL, “A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists.”  65 P.S. §67.701 (a).
  • Mr. Campbell only wants your collective bargaining agreement if you have it in electronic form.  He states any other form would be nonresponsive.
  • Mr. Campbell states in his video that he will not pay for paper collective bargaining agreements but will pay for a USB stick or CD if the file is too large to email.

Conclusion:  If you maintain electronic copies, disclose them. If you do NOT maintain electronic copies of your CBA: 

  • You have the legal right to say that you have no responsive records to his request as stated because you do not maintain these electronically; or
  • You could contact Mr. Campbell and explain you only have hard copies and offer to mail them to him if he will in fact pay to get them; or
  • You can scan and send them electronically to be nice to Mr. Campbell.

 

Request #5: For each of the following school years: 2015-2016, 2014-2015, and 2013-2014: please send me the first and last dates that the agency cut payroll (i.e. paid its employees) for its collective bargaining unit employees (presumably it'll be a date in September and the following June for each school year).

It is likely that you have records which would show Mr. Campbell this information for each year and that these would be public records.  Oddly, he does not seem to know most nine month employees are paid year-round and that many unionized employees work year-round, e.g., in support staff positions.

 

Request #6: For each local Union with whom the agency has a currently enforceable collective bargaining agreement, please extract the necessary financial/transaction information from agency computer databases, agency banking records, or agency human resources/payroll records; and release information sufficient to evidence the following sought-after aggregated data:

a. For the date range 7/1/15 to 6/30/16: the total amount of union dues and/or fair share fees that were deducted from collective bargaining unit employees' paychecks and remitted to the local union, and the name of the local Union the money was sent to.

b. For the date range 7/1/14 to 6/30/15: the total amount of union dues and/or fair share fees that were deducted from the collective bargaining unit employees' paychecks and remitted to the local union, and the name of the local Union the money was sent to.

c. For the date range 7/1/13 to 6/30/14: the total amount of union dues and/or fair share fees that were deducted from collective bargaining unit employees' paychecks and remitted to the local union, and name of the local Union the money was sent to.

 

Re: Request #6, I do not seek any employee's name nor do I care to know the amounts of dues/fees that was associated to any employee. It is only aggregated data that I seek in Request #6.

 

It is the case that information contained in electronic files constitutes records of an agency and you must provide access to it if it is public just as you would provide access to a public record pulled from a file cabinet. PA Department of Environmental Protection v. Cole, 52 A. 3d 541 (Pa. Cmwlth. 2012). It is likely you have public records with this information and that you can provide redacted information from financial records which would provide Mr. Campbell with the information he wants, the total amount of union dues and fair share fees remitted to each local union for each year. 

 

Some may question whether this data, even if readily available, constitutes aggregated data as defined by the RTKL.  Because this has been defined in cases more broadly than would be suggested by the statutory definition, consider looking at a recent OOR decision on this, Reading Eagle v. PA Dept. of Health, AP 2017-0042 (OOR March 9, 2017).

 

http://www.openrecords.pa.gov/Documents/FinalDet/26368.pdf

 

In addition, if you must perform research and compile data to respond to the request, i.e., if it cannot simply be pulled from the electronic records, that could be treated as requiring you to create a record:

 

… diagnosis information located in multiple inmate medical files does not constitute data of inmates' diagnoses by type unless DOC compiles the information from each file. DOC has no duty to perform research in response to a RTKL request to compile the diagnoses data sought. … That is tantamount to creation of a record, contrary to Section 705 of the RTKL, 65 P.S. § 67.705.

 

Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections, 151 A. 3d 1196 (Pa. Cmwlth. 2016).

 

Conclusion regarding Request #6:  If this data can be extracted from your records, whether it is totaled or in separate records covering a period, I recommend providing it. 

 

Mr. Campbell’s Video Suggestions and Template for Granting his Entire Request in a Format Pleasing to Him and PSBA Suggested Considerations

  • CAMPBELL: Please itemize your final response by request number.  PSBA:  This is a best practice and recommended to be sure that you in fact have responded to each request or subparagraph to a request.
  • CAMPBELL: Put your agency name in the subject line of your email so he does not have to figure out who is responding.  PSBA:  Your call.
  • CAMPBELL: Inform him in your response what date your ORO received the request.  PSBA:  Absolutely do this.
  • CAMPBELL:  Do not send paper in the mail.  Send everything electronically.  He hates paper and mail.  PSBA:  If the records exist in electronic form, send them in that form.  If not, it is your call whether you choose to scan and send it electronically or copy and send it by mail.
  • CAMPBELL: Because individual private or agency-provided email addresses which are not on your website are likely contained in other agency records, they are now public records. PSBA:  Not true.  They are exempt under 65 P.S. §67.708(b)(6).
  • CAMPBELL:  If you deny me these records, I will see you in court and will publicly criticize you.  PSBA:  Do what is legally correct, transparent, and best for your agency.
  • CAMPBELL:  You do not have to provide me with all the records containing responsive information if you put the answers on agency letterhead.  PSBA:  Your call whether you want to accept this as a more efficient way to provide responses or not. 
  • CAMPBELL:  I’ll take an approximate date, within a week, as to when you cut the first and last paycheck of the year. PSBA:  We imagine you do not need to approximate since most employees will be paid year-round and you likely have the paydays on a calendar for each of the relevant years.
  • CAMPBELL:  RTKL is not a confidentiality statute.  Even if you think a record is exempt, exercise your discretion provided for by the law and grant this request.  PSBA:  A three-part test applies to 65 P.S. § 67.506 and every part must be met before the agency head exercises this discretion:
  • Disclosure of the record may not be prohibited by Federal or State law or regulation, judicial order or decree; and
  • The record cannot be protected by a privilege; and
  • The head of the agency must determine that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access. 

Emily J. Leader

Member Services  Counsel

Pennsylvania School Boards Association

Director, Pennsylvania School Board Solicitors Association

-------------------------------------------------------

From: Stuart Knade
Date: April 14, 2017 at 10:04:30 PM EDT
To: Stuart Knade
Subject: Further PSBA Guidance on RTKL Request and Appeals

TO SCHOOL SOLICITORS AND OPEN RECORDS OFFICERS

 

Dear Colleagues:

 

This guidance expands on guidance PSBA previously sent to you relating to a recent statewide Right-to-Know Law (“RTKL”) request.  For a more complete discussion of the applicable exemption from disclosing personal email addresses, please review the prior guidance at https://www.psba.org/2017/03/psba-offers-guidance-recent-right-know-request/.   As always, we seek to provide resources and to assist our members in complying with the RTKL. In doing so, we offer help so agencies understand their obligations to requesters as well their obligations to third parties whose information may be the subject of RTKL requests.  

 

The first part of this guidance is pragmatic.  It’s a dot your i’s and cross your t’s group of suggestions.

 

The rest of this guidance involves specific legal thoughts on a few issues which have arisen since, with references to applicable law, to assist you in providing responses to OOR or the courts.  These address allegations of bad faith related to decisions made about deferred release of email addresses; appeals which may come up in response to denials based on the nonexistence of responsive records; and appeals which may come up if an agency grants a request but requires the requester to come inspect records on site during normal business hours and either make their own copies or purchase duplicates in paper or electronic formats at the time of the scheduled visit.

 

PSBA recommends that you submit legal argument to OOR regarding any bad faith allegation that has or may be raised against you.  This need not be in affidavit/attestation form unless you are putting facts not of record in the affidavit/attestation.  Pennsylvania Game Commission v. Fennell, 149 A. 3d 101 (Pa. Cmwlth. 2016). 

 

If you are not a lawyer and any of this seems pertinent to your circumstances, remember to discuss it with your lawyer, because if you decide to deny records or you grant the request and then inadvertently provide an incomplete response, there may be an appeal of that denial.

 

IMPORTANT PRAGMATIC CONSIDERATIONS

There is a significant variation of experience and understanding of the RTKL and its procedures among Open Records Officers (“OROs”) in Pennsylvania.  Based on contacts with PSBA, here are some tips:

  • Responses. Make sure your response letters comply with the RTKL.  One way to do that is to make use of the sample Office of Open Records (“OOR”) forms applicable to the type of response you are providing:  http://www.openrecords.pa.gov/RTKL/Forms.cfm
  • Details. When providing a final response, list or itemize each request and make sure your answers are complete whether you are granting or denying the request.  Even an inadvertent omission may result in an appeal.
  • Requests for records that do not exist.  If there are no responsive records and you partially deny the request on this basis, there may be an appeal.  The OOR will seek an attestation or affidavit of nonexistence.  This must include information on what you did to search for responsive records as well as the explanation that you could not find them.  Again, OOR has posted a sample form which can be used for this and takes you through the steps necessary to provide them with facts that support your case.  (see link at first bullet, above).
  • Do you have to respond to a request for information?  Yes, if the information is found in public records you maintain either in paper or electronically.  If such records do not exist, you may state this but a statement that records do not exist may be appealed.  If that happens, you will need to comply with the affidavit/attestation requirements discussed in the prior paragraph on nonexistent records.  To avoid litigation, several members have chosen to provide information which does not exist in any agency records.  That is acceptable if you are not violating a third party’s legal rights in providing the information.  (See below).
  • What if you can ascertain what’s requested, but the specific wording could result in a technical denial?  For example, what if the union officer is called a steward instead of a president?  Provide access to the information with the corrected title.  If you can ascertain from a request what someone wants, and there is a record documenting it, provide it.
  • What occurs when you are taking an extension for one or more parts of a multiple paragraph request but also providing a partial “final” response as to some paragraphs? In Office of the Governor v. Englekemier, 148 A. 3d 522 (Pa. Cmwlth. 2016) Commonwealth Court was not clear as to whether agencies may provide partial responses during the thirty-day extension period.  It did not explicitly decide this issue. Some OROs, to show good faith, answer everything they can in the notice of extension letter and then take the extension just as to identified information.

A problem is created when agencies include a partial denial in the response while taking an extension as to parts of the request. This may result in the need for the requester to file two appeals. Consider putting your complete answer into just a single final response  when you are prepared to cover everything, allowing for a single appeal which will be more efficient for the agency, the requester and OOR.  Be sure to carefully meet the requisite timelines.

 

BAD FAITH UNDER THE RIGHT-TO-KNOW LAW

Some agencies have provided information that does not exist in any agency records but which is known to them, e.g. the name of the union president or they have provided records which are exempt from access under the RTKL only after the requester appealed the denial. Some agencies decided not to litigate the appeal.  PSBA’s analysis indicates that this decision to provide exempt or legally confidential information pending an appeal does not meet the RTKL definition of bad faith at 65 P.S. §67.1305: “Denial of access. --A court may impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.” 

 

Solicitor Email Addresses and Bad Faith

NOTE TO OROs:  If your solicitor who handles RTKL matters for your agency consents to or recommends disclosure of his/her personal email address, then you may disclose it!  Your solicitor and you do not have to accept email from anyone they choose to block, including us.

 

CAUTION:  While school solicitors who handle RTKL matters, may not object to disclosing their personal email addresses, you should be careful about releasing other individuals’ personal email addresses without notice. Per the prior guidance on this, even some agency-issued email addresses may be exempt under 65 P.S. §708(b)(6). Because the RTKL and the Pennsylvania Constitution require balancing tests be applied before you release certain information over an affected individual’s objection, we suggest agencies need to be rigorous in the review of such requests.

 

PSBA’s analysis concludes it is not bad faith to deny access to personal email addresses and it is not bad faith to decide to release a nonpublic record to avoid further litigation. Here’s why:

 

Exemption under Section 708 (b)(6) for personal email addresses

As discussed in the earlier guidance in more detail, the RTKL expressly exempts personal email addresses from access (see discussion linked at https://www.psba.org/2017/03/psba-offers-guidance-recent-right-know-request/). Some recipients of the requests denied access to the email address of the lawyer who represents them in RTKL matters and then later voluntarily disclosed it.  Central to a finding of bad faith is that the denial of access was to a “public record.”  The requester did not really argue that school solicitors’ email addresses are “public records” as defined by the RTKL. “Public records,” by definition, exclude records which are exempt pursuant to 65 P.S. §67.708(b) and 65 P.S. §67.102, definition of “public record.”  You have no duty under the RTKL to provide access to exempt records.  65 P.S. §67.701.  It is not “bad faith” to properly claim an exemption and later choose to voluntarily disclose it even though not required by law.

 

Informational Privacy

In Pennsylvania State Education Association v. Commonwealth, et al, 148 A 3d 142 (Pa. 2016) (“PSEA III”), the Pennsylvania Supreme Court held that the RTKL does not override an individual’s right to informational privacy.  For many years, until overruled by the Supreme Court, the OOR and Commonwealth Court took the position that government agencies must disclose records containing public employees’ home addresses unless a specific exception in Section 708(b) of the RTKL applied.  In October 2016, the Supreme Court specifically held that individuals have a privacy interest in their home addresses which may not be violated unless the right to privacy is outweighed by a public interest favoring disclosure.

 

Applying this ruling recently, the Commonwealth Court made this observation:

 

The right to informational privacy in one's home address is grounded in, inter alia, Article I, section 1 of the Pennsylvania Constitution. Id. at 150–51. It is a right that belongs to each Pennsylvanian, that exists independent of the exemptions found in the RTKL, and that each agency must consider before disclosing personal information that falls within the scope of the right. In an ideal situation, we would rely on those who claim the right to assert it timely. Because of the lack of meaningful procedural due process protections afforded to those whose private information is sought through the RTKL, that obligation must fall on the agencies that hold this information and have the wherewithal, in the context of the RTKL, to protect it from disclosure.

 

Department of Human Services v. Pennsylvanians for Union Reform, Inc., 154 A. 3d 431, 437 (Pa. Cmwlth. 2017).  (emphasis supplied) (footnote omitted).  As you can see, the court makes clear, an individual’s constitutional right to privacy in personal information must be protected by agencies, OOR and courts reviewing requests under the RTKL.

 

In interpreting PSEA III, the OOR noted that informational privacy rights have been accorded to several distinct kinds of information:

 

Although the Pennsylvania Supreme Court did not expressly define the types of ““personal information” subject to the balancing test, the Court recognized that certain types of information, including home addresses, by their very nature, implicate privacy concerns and require balancing. Pa. State Educ. Ass'n, 148 A.3d 142, 2016 Pa. LEXIS 2337 at *27; see also Tribune-Review Publ. Co. v. Bodack, 961 A.2d 110, 117 (Pa. 2008) (finding telephone numbers to constitute personal information subject to the balancing test);Pennsylvania State Univ., 935 A.2d at 533 (finding home addresses, telephone numbers and social security numbers to be personal information subject to the balancing test); Sapp Roofing Co. v. Sheet Metal Workers' International Assoc., 713 A.2d 627, 630 (Pa. 1998) (plurality) (finding names, addresses, social security numbers, and telephone numbers to be personal information subject to the balancing test).

 

Campbell v. Boyertown Area School District, Docket No. AP 2016-1966 (OOR December 29, 2016).

 

In PSEA III, the Supreme Court made several observations about informational privacy.  It includes, among other things:

 

  • Avoiding disclosure of personal matters.
  • The right to be left alone.
  • Government recognition and respect of the constitutionally protected privacy interests of Pennsylvania citizens when considering disclosure of personal information

It did not matter to the Court that citizen’s home addresses may be easily found in other public records or through an Internet search.  Each time an individual’s informational privacy rights are implicated, a balancing test must be performed before a government agency provides such information pursuant to a RTKL request.  The balancing test looks to “the nature of the privacy right and its important relationship to other basic rights.” PSEA III. at 152.  OOR and the courts reviewing such requests must “… apply a balancing test, weighing privacy interests and the extent to which they may be invaded, against the public benefit which would result from disclosure.”  PSEA III at 153. 

 

It is PSBA’s conclusion that the courts inevitably will rule that one’s personal email address falls within the informational privacy protection of the Pennsylvania Constitution.  This becomes important when you are considering whether you have unilateral discretion to release an email address over the owner’s objection without performing a balancing test.

 

Discretion to release

65 P.S. §506(c)

The provisions of Section 506(c) permit an agency head to exercise discretion to release a record that is merely exempt from access under Section 708(b) of the RTKL. This discretion lies solely with the agency head, not the requester or others.  Meanwhile, agencies are prohibited from exercising this discretion regarding some kinds of records, such as privileged or legally confidential records.

 

In Heavens v. Pennsylvania Department of Environmental Protection, 65 A. 3d 1069 (Pa. Cmwlth. 2013), Commonwealth Court noted:

 

[w]hile public policy may or may not support an exercise of [an agency’s] discretion to waive the … exception to disclosure here, the RTKL gives such discretion to [the agency], not the OOR or reviewing courts. … [w]e find no basis for Requester's argument that we can order release of the records under the RTKL where [the agency has proven by a preponderance of the evidence that it has a basis upon which to withhold them from the public.

 

Id. at 1177.

 

It is not “bad faith” to decline to exercise Section 506(c) discretion. When agency heads are considering exercising discretion to release:

 

  • If the only consideration is that this is a personal email address which is exempt pursuant to 65 P.S. §708(b)(6); and
  • If the agency head wishes to release the record over the email address owner’s objection; then
  • The agency head must first find “… that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.”

Conceivably, this public interest could extend to avoiding the costs associated with continuing to litigate a RTKL appeal.

 

Informational privacy

However, agencies do not have discretion to disclose records which are prohibited from disclosure under Pennsylvania law.  If a personal email address is private information protected by the Pennsylvania Constitution, the agency must perform the balancing test described in PSEA III, which is more rigorous a standard than Section 506(c).  In other words, when deciding to override an individual’s constitutional right to informational privacy, the agency must find that the general public’s interest in having access to this information outweighs the individual’s privacy interest in keeping this information private.

 

PSBA cannot presently conclude that you have legal authority to turn over these solicitor email addresses if the solicitor objects. Certainly, your solicitor may say you should provide his or her email address rather than litigate the matter. But this does not mean that everyone whose email address is in the agency’s possession would take this position.

 

Many people were unsure whether the Pennsylvania Constitution protected privacy in public employees’ home addresses prior to the decision in PSEA III.  Given that the legislature carved personal email addresses out of the definition of a public record and exempted them from access, it is more likely than not that Pennsylvania citizens have informational privacy rights in their personal email addresses. A requester’s desire to create an email list of solicitors who represent educational entities in RTKL matters is very unlikely under PSEA III to justify overriding the individual privacy interest a person has in a personal email address. The Supreme Court said:

 

To the contrary, nothing in the RTKL suggests that it was ever intended to be used as a tool to procure personal information about private citizens or, in the worst sense, to be a generator of mailing lists. Public agencies are not clearinghouses of “bulk” personal information otherwise protected by constitutional privacy rights. While the goal of the legislature to make more, rather than less, information available to public scrutiny is laudable, the constitutional rights of the citizens of this Commonwealth to be left alone remains a significant countervailing force.

 

PSEA III at 158. 

 

Nonexistent records

A denial that no responsive records exist as to one or more components of a request is appropriate and it can be appealed. Be sure to conduct a good faith search in the first instance!  If the agency later finds out that there are some responsive records, be responsive and provide them. One way to ensure you have covered all bases is to look at the sample affidavit/attestation on the OOR website, linked above, and to determine if you can swear to each component of that sample form.  If the answer is yes, then any appeal will be sufficiently answered by your providing a timely completed and executed affidavit/attestation if nonexistence.

 

Copies of records

In a prior email guidance regarding a widespread request by a Florida company, PSBA shared its conclusion that OOR was legally wrong in saying that the RTKL required agencies to duplicate records, or to mail or to email copies upon request.  The reasoning is that the RTKL is an “access” law, which requires that public records “shall be accessible for inspection and duplication in accordance with this act…. Public records … shall be available for access during the regular business hours of an agency.”  65 P.S. §67.701(a).  There is nothing in the RTKL that says that so long as you otherwise provide access to a record that you maintain electronically, you must do more than provide the electronic records on a thumb drive or a cd with the records on it, charge for the supplies you use for that, and make those available for pickup at the district offices.  If you duplicate records for someone inspecting them, you may charge duplication fees.  If you have notified a requester that the records “are available for delivery at the office of an agency and the requester fails to retrieve” them, you may dispose of them and keep any fees paid.  65 P.S. §67.905.  You must provide certified copies upon request and payment of fees pursuant to 65 P.S. §67.904, but even that does not suggest the provision requires you to mail or email the certified copies.

 

However, based on early decisions and its uniform request form, OOR takes the position that requesters have a right to copies and a right to have them mailed or emailed.  Commonwealth Court seems to assume this is true without having specifically addressed it, so this is unsettled as a matter of law. PSBA cautions that anyone choosing to take the position that a requester must inspect the records at the agency during normal business hours must be prepared to litigate this through at least the Commonwealth Court and possibly the Pennsylvania Supreme Court.  If an agency does require requesters to inspect records at the agency, every request/requester must be treated the same way. Because many agencies have chosen to mail or email records rather than make this an issue, it was not mentioned in the initial guidance regarding this request but since it appears that some school districts have taken this position, we are addressing the issue now. 

 

Please contact any of the attorneys with PSBA Legal Services if you have questions about the RTKL. 

 

Stuart L. Knade

Senior Director of Legal Services

Pennsylvania School Boards Association