OOR and Home Addresses

The OOR (Office of Open Records, the initial body to which appeals of right to know issues go) has narrowed its interpretation of Judge Friedman's injunction related to the release of school employees' home addresses.   Previously, the OOR had stated that Judge Friedman's reasoning would apply equally to other agencies' employees and that it would not require such agencies to release their employees' home addresses.  It also said that equity required that it rule that way.  That position was summed-up in an advisory on the OOR's web site.

The OOR took down that advisory following the Commonwealth Court's decision, then, after yesterday's PA Supreme Court order, it put up a new one.

The new advisory (found here) now specifically states that the injunction ONLY applies to the home addresses of public school employees.  Therefore, as far as the OOR is concerned, requests to other agencies for their home addresses are still fair game.

Finally, in what reads to me as a bit of denial, the new advisory states, then reiterates, that this order is only temporary.  Nevertheless, at the end it concedes that the injunction has no end date and that it will remain in effect until further notice.

One wonders if the OOR will repudiate its prior Final Determinations in which it cited the reasoning contained in Judge Friedman's order for upholding agency denials of requests for non-school employees' home addresses.  Only time will tell.

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.

An injunction to shield public documents

When an agency in Pennsylvania gets a right to know request, it has a couple of options.  Obviously, it can grant the request or deny the request.  The third, less obvious choice, is to realize that in many cases the agency "does not have a dog in the fight" and the person who does may be more interested in footing the bill for keeping information private.  In those cases, the agency may choose to simply notify that person (or corporation or other entity) of the request, and give that person a chance to bring proof of an injunction or some other court order stopping the agency from making the release.

That is what happened in a case just decided by the Pennsylvania's Commonwealth Court that ended up pitting Philadelphia's police union against the Philadelphia Newspaper LLC. The fight concerned a request for "all arbitration awards, including written decisions by arbitrators, pertaining to police officers ...."

The Philadelphia court issued the injunction but the Commonwelath Court found that it was a mistake.  The appeals court found that Philadelphia court should not have issued the injunction because there were ample ways within the RTKL of shielding the information the union had wanted to protect.  Nevertheless, there were interesting issues discussed by the Commonwealth Court in its opinion.

First, the case shows this is an effective and appropriate procedure for dealing with such issues.

Second, the court more clearly defined what needed to be released and drew a line between the arbitrator's 'opinion' and his or her 'award' or 'order'.  Although various records relating to grievance arbitrations are shielded by an exception within the RTKL, there is an "exception to the exception" stating that the "final award or order" is not shielded.  This means that where a requester asks for those final awards or final orders, the agency is supposed to release them.

The court explained that the final award or order is generally separated from the arbitrator's opinion much as the court itself separates its opinion from its order, even when they are within the same document. You can see the way the court itself did it in the linked court opinion/order, below, but the same is also true of the the final determinations of the OOR.  Those final awards or orders generally do not have much in the way of facts about the case, but even if they did, some of those facts can be redacted if there is an exception that covers them.

Third, when this case discussed the 2009 PSEA v. OOR injunction decision, it did not do so dismissively or in any way concluding that Senior Judge Friedman had been wrong in her statement about the law.  This is noteworthy in light of the later decision by the court to dismiss the PSEA case.  Also, Judge Pelligrini joined the majority in this case after writing a scathing concurrence in the prior case stating he did not believe there was any constitutional right to privacy in home addresses.

Published by the Commonwealth Court this past Friday, this new case is M. G. Lutz, et al. v. City of Phila, 1996 C.D. 2009.