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.

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.

When access and control will not render a record public

The Commonwealth Court recently issued a decision in the Court of Common Pleas of Lackawanna County v. the Pennsylvania Office of Open Records and Lackawanna County, No. 35 M.D. 2010 (Pa. Cmwlth.). Essentially, this case indicated that where an agency has access to a record as a result of its support of a second agency, that record will maintain its status and exclusions as though it was only held by the second agency.

The court found that the requested records were judicial records (normally exempt from the RTKL) but they were housed on the County's computer server, giving the County access to and control over the records.  The OOR had decided that meant that a requester could gain access by directing a request to the County.  The Commonwealth Court disagreed.

Essentially, the court decided that the County was providing a support function to the judicial agency and that the County’s ability to access records as a result of that support did not convert the judicial agencies documents into County documents.

Just because the County provides logistic support to the courts does not mean that every record stored on what the County provides as part of its function to support the court makes it a county record – those records always remain the records of the court.

The court went on to point out that a different finding would lead to an absurd result where one could obtain non-public documents of the court simply by directing the request to the county.

This reasoning applies equally well to §708(b) exceptions. Thus, the §708(b) exceptions that would apply to a supported agency will continue to be effective on the records in the hands of the supporting one. An example of interest to some agencies might be where they contract with another agency to analyze or gather data and issue reports used for negotiations.