Balancing the Right to Know Law against the Constitutional Right to Privacy

Pennsylvania’s Right to Know Law creates a presumption that all records are public unless specifically exempted, and places the burden of establishing an exemption on the Government Agency. Many of the exemptions are pretty intuitive: records that constitute a trade secret or confidential proprietary information (§ 708(b)(11)), homeland security records that, if disclosed, would be reasonably likely to jeopardize or threaten public safety (§ 708(b)(2)), and medical records (§ 708(b)(2)). Obviously we don’t want people to use the RTKL to get their neighbor’s medical records!

Another fairly intuitive exemption protects personal information. But what counts as personal information? Does the statute go far enough in protecting individuals’ information? Section 708(b)(6) provides that the following are exempt:

(A) A record containing all or part of a person’s Social Security number, driver’s license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number.

(B) A spouse’s name, marital status or beneficiary or dependent information.

(C) The home address of a law enforcement officer or judge.

Section 708(b)(6) further clarifies that nothing in that section can be interpreted to exempt information about a government employee’s wages/salary: “Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee”. So you can’t access the voided check someone gave to their employer to sign up for direct deposit (personal financial information!) but you can find out how much any government employee earns.

There are seemingly some gaps in the wording of this statute. This section of the RTKL explicitly exempts the home addresses of only “a law enforcement officer or judge”, apparently leaving the home address of any other government employee up for discovery through a public records request. However, the Pennsylvania Supreme Court has held that an individual possesses a constitutional right to privacy in certain types of personal information. Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016). When a request for records implicates personal information not expressly exempt from disclosure under the RTKL - such as employees’ home addresses - the OOR must balance the individual’s interest in informational privacy with the public’s interest in disclosure. The OOR will only order the release of personal information when the public benefit outweighs the privacy interest. Id. Therefore, although not exempted by the text of the RTKL itself, an agency may redact home addresses before producing a record. (Sapp Roofing Co. v. Sheet Metal Workers’ International Assoc., 713 A.2d 627 (Pa. 1988))

In a recent decision, Mellon v. SEPTA, AP 2021-0465, the Office of Open Records addressed whether an agency was required to produce a list of its police officers who requested time off on January 6, 2021 and held that individual officers’ interest in informational privacy in how they use their PTO outweighs the public’s interest in knowing that information. The OOR wrote that “knowing the names of officers who took a specific day off does not provide any government accountability, but rather in light of the context of January 6, 2021, invites only speculation as to the private actions of agency employees.” The public would be entitled to records reflecting how much PTO a government employee earned, but not how they use that PTO, the same way you get to learn how much an employee earns, but not how they spend their money.

There is limited case law / OOR final determinations addressing this non-statutory exception to public access, so it is interesting to see how the OOR addresses these issues as they arise!