PA's Right to Know Law: can you keep it private if the exclusions don't quite fit?

What is an agency's Open Records Officer to do?  The exclusions in the PA RTKL are supposed to be "narrowly construed," but sometimes the information requested clearly SHOULD be protected.

This issue came up recently in front of the PA Commonwealth Court.

In Housing Authority of Pittsburgh v. Van Osdol, a requester wanted to know the addresses of all the section 8 housing in Pittsburgh.  The agency denied the request.  The requester appealed to the OOR, then the agency appealed first to the trial court then the Commonwealth Court.  Ultimately, the Commonwealth Court ordered the records released.  It did so despite what it characterized as "disturbing factual allegations concerning the harm disclosure could cause to the tenants whose addresses are sought," that was alleged in the briefs it received. 

This gave rise to a very interesting discussion by the court indicating that although the RTKL exceptions are to be narrowly construed, there are instances where an agency is permitted to shield information even where it does not fit neatly into the exceptions.

There may be some cases in which the evidence establishes that disclosure of public records which are not facially exempt will necessarily or so easily lead to disclosure of protected information that production of one is tantamount to production of the other, or that disclosure of the one is highly likely to cause the very harm the exemption is designed to prevent ....

Id at 11.

Ultimately, because there was no testimony or other evidence at the OOR or trial level about the potential harm, or how easily the records released could lead to information which would have been properly excluded from a RTKL release, the court ruled the agency had to release the records.  The harm alleged must have been pretty bad, however, since Judge McCullough in her concurrence wanted to send the case back to the OOR so that this shortcoming could be addressed with more evidence added to the record.

Thus, the lesson is not that an agency needs to stay very close to the exceptions but instead, where using an exception that will not quite fit, make sure to get ALL the facts relied upon into the record in front of the OOR and beyond.

The court also reiterated what should be understood by everyone by now -- give all potential reasons for denial when rejecting a RTKL request.  Neither the OOR nor the courts will allow an agency to give supplementary reasons for denial later, including ones in the alternative.

The case is Housing Authority of Pittsburgh v. Van Osdol, 795 C.D. 2011 and can be found here.