Third Party Notification Imposes Unreasonable Burdens

In February, the Commonwealth Court issued its second decision in a case involving the Pennsylvania State Education Association (“PSEA”) and the Office of Open Records (“OOR”). The case began in 2009 and has been up to and back down from the Pennsylvania Supreme Court during its arduous trek through the court system. The case involves a request by the PSEA for a declaratory judgment by the Commonwealth Court that the home addresses of public school employees should not be public record as they are protected by an alleged privacy right under the Pennsylvania Constitution. The case was brought by the PSEA in an attempt to stop numerous requests across the Commonwealth to school districts for the names and addresses of their employees. One of the ironies of the case is that there is no actual Right-to-Know request involved in the case.

From this tortured procedural and factual background, the Commonwealth Court has fashioned a notice requirement on school districts anytime they receive such a request. Prior to disclosing any records, the Court requires that notice be given to the “affected employees” and that they be provided a “meaningful opportunity” to object, at the initial request phase, to the disclosure of their home addresses. Furthermore, any objecting employee shall have an automatic right of intervention and, should the district decide to overrule the objection and release the information, the employee will have the right to appeal the district’s decision to presumably the OOR. Although the decision itself is limited to public school employees, it has now become the modus operandi of agencies to provide such notice anytime any information is asked for dealing with individuals be they employees or citizens providing information to the agency.

The Court imposed this requirement without any statutory basis for it, but on the perception that the RTKL lacks sufficient procedural due process for such individuals. It is believed that this requirement will eventually prove unworkable and will severely undermine access to public records and thus the transparency of government that the law seeks to guarantee. In addition to the lack of any statutory requirement, the practical effects of the decision and the impact it will have upon agencies and the taxpayers that fund them could prove overwhelming.

A companion case involving the State Employee Retirement System and a similar request for the addresses of members resulted in the System mailing notice to over 187,000 members at a cost exceeding $90,000. Even when notice was provided, less than 2% of the members bothered to respond or object to the supplying of their home addresses. The fiscal impact of such notice upon the System was absorbed by its members and the taxpayers of the Commonwealth.

The effect of such a fiscal impact upon smaller municipalities could prove devastating. A simple request for addresses or similar information, even in a small municipality, could require notice to a large population, creating a huge financial burden on the agency. Furthermore, there is no guidance as to how the notice is to be given, what constitutes sufficient notice or how much time must elapse to provide those notified with a “meaningful opportunity” to object.

Local governments should not be required to notify individuals that provide information to the government that such information is subject to inspection by other members of the public. The cost of providing such notice is an unnecessary expense that takes away from resources needed to provide essential services.   The Commonwealth Court’s recent decision imposes an unreasonable burden on government agencies to notify third persons, i.e. public school employees whose names and home addresses were being sought, of the request in order to afford them due process rights of notice and an opportunity to be heard.

Local governments routinely receive information from third parties. Land development plans, building permit applications, and payment records for municipal services contain information about the persons that submit them.   The Right-to-Know Law only requires local governments to notify third persons of requests for public records if the local government intends to release a record that is not defined by law as a “public record” or if the third person previously notified the local government that the information provided was “confidential and proprietary” or a “trade secret.”

Imagine if a township was required to notify every homeowner of requests for lists of delinquent sewer billings.   First class mail is the only plausible way to ensure notification would reach the majority of the recipients. The cost to the township would be tremendous.

Notice is not necessary because people are generally aware that the information they provide to the government is available for public inspection.   A person that requests a building permit understands that his or her neighbor can inspect the permit application. Local governments should not have to ask every citizen whether the disclosure of their home address would endanger their personal security. Most citizens’ home addresses are widely available on the internet. If a particular individual has a personalized concern, they should bear the burden of informing the government of their concern.   Individuals with sensitive concerns, such as protection from abuse orders, have alternative ways to protect their information, including applying for a confidential address. Thus, the burden should be on the individual who wants to prevent the disclosure of public records, and not on the local government to try to track down those persons who may object to the disclosure of information that is otherwise widely available.   This is to enable such persons to establish that they have taken steps to preserve the privacy of their names and home addresses. Such a requirement adds a significant burden to already strained municipal staffs and budgets without advancing any significant goal of increased transparency in the operations of government.

The RTKL also has no procedural mechanism for permitting an appeal by the person whose information is sought. The decision again fails to give any indication as to whether that person is bound by the same procedural timelines contained within the law for requesters and agencies or whether some other time period should apply or how that person is notified of their rights and what those time limits may be.

This confusion will cause additional delay in a process that is already much delayed beyond the Legislature’s vision of how the RTKL should operate. The idea behind the 2009 revisions to the Right-to-Know Law was to provide an expeditious, inexpensive method for citizens to make requests for public records and for any dispute over those records to be decided quickly.   This notice requirement imposes a procedural and financial roadblock to access to public records. Finally, there is no similar mechanism required under the Freedom of Information Act or by sister jurisdictions under their open records laws.

The notice requirement fashioned by the Court will prove difficult for agencies to follow, for the agencies and OOR to implement and for requesters to understand. It will require numerous other Court decisions on the procedural gaps left by the vagueness of the requirement. It will most certainly delay and interfere with legitimate public record requests and make such requests more burdensome and costly for requesters, the antithesis of what the Legislature envisioned in fashioning the amended law.