Commonwealth Court Publishes Decision Discussing whether Home Address and Dates of Birth of Public Employees are Exempt from Public Disclosure
On March 22, 2012, the Commonwealth Court filed a memorandum opinion, Delaware County v. Schaefer, Docket No. 256 C.D. 2011, discussing whether home addresses and dates of birth of public employees are exempt from public disclosure. On May 15, 2012, the Commonwealth Court issued an Order designating the case for publication. The effect of publication is that the case may now be cited as controlling on the issue of dates of birth. To what extent, still needs to be seen. In Schaefer, the Commonwealth Court held that the home addresses and dates of birth of public employees may be exempt from public disclosure under the personal security exemption.
In Schaefer, a reporter for the Philadelphia Inquirer filed a right-to-know request seeking the disclosure of the homes addresses and dates of birth (month, date and year) of all Delaware County employees. The reporter needed this information to differentiate employees with common names, and to match employee information with information in other computer databases including campaign finance, property tax, and criminal history information. The County denied the request, arguing that the information was exempt from public disclosure under the personal identification information exemption and the personal security exemption. The OOR ordered disclosure due to lack of evidence, and the Court of Common Pleas reversed the final determination.
The home addresses of law enforcement officers, judges, and minor children are expressly exempted from public disclosure by the RTKL, but there are no other exemptions for home addresses or dates of birth. A fundamental tenet of statutory construction is that “exceptions expressed in a statute shall be construed to exclude all others.” 1 Pa.C.S. §1924. In the absence of an express exemption, the Commonwealth Court held that home addresses and dates of birth of public employees are not entitled to the unconditional protection afforded home addresses of certain vulnerable or at-risk individuals such as law enforcement officers, judges and minor children.
Although home addresses and dates of birth of public employees are not exempt from public disclosure under the personal identification exemption, the Commonwealth Court also considered whether such information is exempt under the personal security exemption. The Commonwealth Court found the term “personal security” protects rights to privacy, confidentiality, and the right to be secure in one’s possessions, monies, investments and benefits, and the freedom from identity theft. Thus, if the agency submits evidence, proving by a preponderance of the evidence (more likely than not), the existence of a reasonable likelihood of a substantial and demonstrable risk to a person’s personal security, “the presumption that the public has a Right-to-Know is overcome and the balance is tipped in favor of denying access.” Schaefer, slip opinion, p. 13, fn. 10.
In regards to dates of birth of public employees, the Commonwealth Court relied on its prior decision in Governor’s Office of Administration v. Dylan Purcell, — A.3d —- (Pa.Cmwlth.2011), where the state offered evidence in the form of affidavits to demonstrate that the release of “full dates of birth”[1] of public employees may cause identity theft, and ruled that dates of birth of public employees are exempt from public disclosure.
In regards to home addresses of public employees, the Commonwealth Court found the county did not present sufficient evidence to show the release of home addresses of public employees would endanger the personal security of public employees. Due to “the relative newness of the RTKL and the dearth of case law to guide the parties”, the Commonwealth Court remanded the matter to the Delaware County Court of Common Pleas with instructions that the county be permitted to submit additional evidence in support of its argument that the public disclosure of the home addresses of public employees may endanger personal security.
Disclaimer: This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group. The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law. THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE. The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”. The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.
[1] In Purcell , GOA released the year of birth, but not the date or month of birth.