Constitutional Right to Privacy? (a follow-up)

Following up on yesterday's bit of news, I was asked why the case cited entitled the PSEA to a stay, reimposing the injunction against releasing home addresses.  Essentially, the PA Supreme Court gave that answer by the case they cited, although the meaning of the answer is a bit cryptic.

The Court cited Pa. Pub. Util. Comm'n v. Process Gas Consumers Group case to give that entitlement.  That case sets the standards for when a "stay" is granted (sometimes called a "supersedeas," it is when a court will put its decision on hold pending the outcome of the appeal).  In applying the first part of that case's standard to the present case, we learn that the PA Supreme Court believes that the PSEA has "ma[de] a strong showing that [it] is likely to prevail on the merits." Id., at 808.

However, remember that the Commonwealth Court "dismissed" or "threw out" the case on procedural grounds, saying that the PSEA sued the wrong party, and specifically should not have sued the OOR.  This is what makes the above reference cryptic.  The appeal before the Supreme Court now is on the question whether the case should have been thrown out on these procedural grounds.  The Court could be answering that limited question (procedurally, the case should not have been thrown out at that stage of the case), or the more fundamental and ultimate question (there is a constitutional right to privacy).

Whichever reason, the PA Supreme Court has telegraphed its initial feeling that the case had sufficient merit to at least go further in the process.  For all we know, it could rule on the constitutional right to privacy issue, too.

PA Supreme Court restores injunction

Teachers' home addresses are again shielded from requests under the PA Right to Know Law.

In July 2009 Senior Judge Friedman of the Commonwealth Court, sitting alone, issued a preliminary injunction shielding school employees' home addresses from requesters.  In September 2010, the full Commonwelath Court dismissed the underlying case, thereby dismissing the injunction, as well.  On November 1, 2010, the PA Supreme Court reimposed the injunction.

Without making more of this than we can reasonably take from a decision that is summed up by the single line

Upon review of the parties’ pleadings, we believe that appellants are entitled to a stay pursuant to Pennsylvania Public Utility Comm’n v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983).

I can pass on that others have felt this is especially positive.  There are those that believe this decision, as well as the one from August 2010 hint that the PA Supreme Court will find that there is a constitutional right to privacy.  One really has to read between the lines to get that from this decision, though.

What this means is that we have returned to the situation as it existed just after Judge Friedman issued her initial injunction protecting those addresses.  While the injunction remains in effect, School Districts do not need to release home addresses and the OOR cannot order them to do so.

The "full" interim Supreme Court decision can be found on the Court's web site at Pa. St. Education Assoc., et al v. Commonwealth of Pa., et al - No. 195 MM 2010.  The August Supreme Court decision, which is even shorter, and simply 'affirms' the injunction, can be found here.

How to not release financial information about a person

What is one to do when one cannot redact actual financial information for a person?  According to the Commonwealth Court, you can instead redact the person's name and address.

Right now, there is still a lot of hand-wringing over the release of people's home addresses held by an agency.  The current state of the law is unsettled and neither Pennsylvania's Commonwealth nor Supreme Court has explicitly decided if there are any constitutional protections for that information. While we all wait for a definitive statement one way or the other, however, it is worthwhile to note that one of those courts has already sanctioned a situation where one may redact a person's home address: Prevailing Wage Certifications.

The case is DCNR v. OOR, 1165 C.D. 2009 (May 24, 2010).  In that decision, the court agreed that a prevailing wage certification clearly contains financial information, which would normally be subject to redaction.  However, the purpose of such a certiciation is to allow the public to verify that prevailing wages (as set by the Secretary of Labor through the Prevailing Wage Act) are being paid.  There would be little point in releasing contractor's wage certification with all the wage information redacted, but that would be what the RTKL permits.

What the court ended up saying was that redacting an employee's name and address off the certification has the effect of making the financial information anonymous.  Once it is made anonymous, it is no longer a single person's financial information and can be released.

In addition to the Department of Conservation and Natural Resources (DCNR), the other Pennsylvania agencies aligned against the position reached by the Office of Open Records (which had ruled the wage certifications should have been released without any redactions) were the Office of the Budget and the Department of General Services.

A reminder about redactions: where a requester asks only to view records but does not request copies, it is permitted to charge for copies anyway if the agency will need to make copies in order to make redactions.  If it chooses to charge for those copies, the agency should get its payment prior to giving access.