            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Governor's Office                        :
of Administration,                       :
                                         :
                              Petitioner :
                                         :
                       v.                : No. 103 C.D. 2017
                                         : Submitted: July 7, 2017
Simon Campbell,                          :
                                         :
                              Respondent :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: September 28, 2017

               The Governor’s Office of Administration (OA) petitions for review
from a final determination of the Office of Open Records (OOR) that granted in
part and denied in part Simon Campbell’s (Requester) request under the Right-to-
Know Law (RTKL).1 OA argues that the OOR erred by: ordering the OA to
disclose records that are the subject of separate, and likely dispositive litigation;
ordering the wholesale disclosure of employee county of residence without
affording those affected the ability to protect such information; and failing to
consider whether employee county of residence is subject to constitutional
protections.



      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
               On October 19, 2016, Requester submitted the following request to
the OA:

               For all Commonwealth employees whose names exist
               inside the computerized databases of OA: please extract
               from OA’s computerized databases the full names of
               those Commonwealth employees, their position/job titles,
               their dates of birth, and their counties of residence and
               send this information to me in electronic format only. It
               will be helpful to me in terms of obtaining their home
               addresses.

Reproduced Record (R.R.) at 14a-15a. OA partially granted and partially denied
the request.     Specifically, OA directed Requester to the publicly accessible
electronic     database   at   www.pennwatch.pa.gov      (PennWatch)       where   the
Commonwealth posts information regarding budget, spending, revenue and
employees.       Of the records requested, the names and job titles of the
Commonwealth employees, along with their salaries, compensation, and
employing agency, subject to redactions permitted under Section 708(b) of the
RTKL, 65 P.S. §67.708(b), are posted at PennWatch. R.R. at 18a. However, the
OA denied the request to the extent it sought employees’ dates of birth and
counties of residence.
               Requester appealed to the OOR challenging the denial and asserting
the information requested is subject to public disclosure.       The OA provided
supplemental information and requested a stay of proceedings based on McCord v.
Pennsylvanians for Union Reform, 136 A.3d 1055, 1068 (Pa. Cmwlth.), appeal
granted sub nom., Reese v. Pennsylvanians for Union Reform, (Pa., No. 111 MAP
2016, filed November 10, 2016) (Reese), now pending before the Supreme Court,
which involves the same issue presented here. The OOR did not enter a stay, but


                                          2
instead granted the appeal in part and denied the appeal in part. The OOR denied
the appeal to the extent the request sought the employees’ dates of birth. However,
the OOR granted the appeal insofar as the request sought employee county of
residence information. The OOR directed the OA to provide Requester with the
employees’ counties of residence within 30 days of the date of the order.
              The OA now petitions this Court for review.2 The OA contends that
the OOR erred in failing to stay judgment pending the Supreme Court’s disposition
of Reese. Reese involves the identical issue presented here, namely, whether an
employee’s county of residence is subject to disclosure. The Supreme Court
granted review in Reese in order to address the impact of Pennsylvania State
Educational     Association      v.   Department      of    Community       and    Economic
Development, 148 A.3d 142 (Pa. 2016) (PSEA) on the issue. On this basis, the OA
renews its request for a stay of the proceedings in this Court. Alternatively, if a
stay is not granted, the OA argues that the OOR erred by failing to offer due
process to the employees implicated by the request when it ordered the wholesale
disclosure of employees’ counties of residence and without the participation of the
employees who are the subjects of the information. Finally, the OA asserts that the
OOR should have conducted a balancing test, based on PSEA, before directing the
disclosure of personal information, including the county of residence.3



       2
         For appeals from determinations made by the OOR involving Commonwealth agencies,
our standard of review is de novo and our scope of review is plenary. Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013).

       3
          Requester did not file a brief in opposition or otherwise oppose the OA’s renewed
request for stay.



                                              3
              We first address the request for stay. In Reese, the Pennsylvanians for
Union Reform (PFUR) submitted a RTKL request to then-State Treasurer, Robert
M. McCord, later replaced by Timothy P. Reese (Treasurer)4 for the production of
an unredacted copy of a list of all Commonwealth employees compiled pursuant to
Section 614 of the Administrative Code of 1929 (Administrative Code).5 Section
614 of the Administrative Code explicitly makes an employee’s county of
residence, among other things, public. The Treasurer filed a petition for review in
the nature of a complaint against PFUR and its president (Requester herein),
seeking declaratory and injunctive relief concerning application of the RTKL and
its exceptions to PFUR’s request. After the pleadings closed, the Treasurer filed a
motion for partial judgment on the pleadings. We held that the list requested is to
be accessible to Commonwealth citizens at the State Library without a written
request or other limitation by RTKL. Reese, 136 A.3d at 1068. Thus, we denied
the Treasurer’s partial motion and dismissed his claim for injunctive relief.
              The Treasurer, intervenors, and the OA appealed from this decision.
The Supreme Court granted review, consolidated the appeals, and directed
supplemental briefs addressing the impact of the Supreme Court’s decision in
PSEA, which was rendered months after this Court’s decision in Reese. In PSEA,
the Supreme Court held that a Commonwealth employee’s right to informational
privacy in his or her home address “is guaranteed by Article 1, Section 1 of the
Pennsylvania Constitution, and may not be violated unless outweighed by a public


       4
          McCord resigned his office on January 30, 2015. Timothy P. Reese became State
Treasurer on June 26, 2015. Under Pa. R.A.P. 502(c), when a public officer named in an appeal
ceases to hold office, “his successor is automatically substituted as a party.”
        5
          Act of April 9, 1929, P.L. 177, added by Section 3 of the Act of September 27, 1978,
P.L. 775, as amended, 71 P.S. §234.


                                              4
interest favoring disclosure.” 148 A.3d at 158. Reese remains pending before the
Supreme Court.
             In its request to stay proceedings, the OA asserts that the wholesale
disclosure of the records in question would defeat or moot the ongoing work by the
Supreme Court, which will likely be dispositive on the subject. Moreover, to
proceed without a stay would create duplicative, unnecessary work for the parties
and waste judicial resources. Any decision entered before the Supreme Court’s
decision could cause confusion. For these reasons, the OA urges this Court to wait
until the Supreme Court defines the impact of PSEA on counties of residence
before deciding the merits of this appeal.
             Upon review of Reese and PSEA, and given the identity of the issues
and parties involved, we believe the prudent approach is to hold the matter in
abeyance until the Supreme Court clarifies the impact of PSEA on whether county
of residence information is subject to or protected from public disclosure. See
Commonwealth v. Pennsylvania State Police, 146 A.3d 814, 819 (Pa. Cmwlth.
2016).




                                       MICHAEL H. WOJCIK, Judge




                                             5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Governor's Office                    :
of Administration,                   :
                                     :
                          Petitioner :
                                     :
                     v.              : No. 103 C.D. 2017
                                     :
Simon Campbell,                      :
                                     :
                          Respondent :



                                    ORDER


            AND NOW, this 28th day of September, 2017, the above-captioned
matter is HELD IN ABEYANCE pending the Pennsylvania Supreme Court’s
disposition of McCord v. Pennsylvanians for Union Reform, 136 A.3d 1055, 1068
(Pa. Cmwlth.), appeal granted sub nom., Reese v. Pennsylvanians for Union
Reform, (Pa., No. 111 MAP 2016, filed November 10, 2016).
            Petitioner shall file a status report not later than 30 days following the
Supreme Court’s disposition of Reese, or by January 11, 2018, whichever occurs
earlier.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
