               [J-44A-2016 and J-44B-2016] [MO: Donohue, J.]
               IN THE SUPREME COURT OF PENNSYLVANIA
                            MIDDLE DISTRICT


THE PENNSYLVANIA STATE                :   No. 11 MAP 2015
EDUCATION ASSOCIATION, BY LYNNE       :
WILSON, GENERAL COUNSEL,              :   Appeal from the Order of the
WILLIAM MCGILL, F. DARLENE            :   Commonwealth Court at No. 396 MD
ALBAUGH, HEATHER KOLANICH,            :   2009 dated February 17, 2015.
WAYNE DAVENPORT, FREDERICK            :
SMITH, JAMIE MCPOYLE, BRIANNA         :   ARGUED: April 5, 2016
MILLER, VALERIE BROWN, JANET          :
LAYTON, KORRI BROWN, AL REITZ,        :
LISA LANG, BRAD GROUP AND             :
RANDALL SOVISKY,                      :
                                      :
                Appellants            :
                                      :
                                      :
          v.                          :
                                      :
                                      :
COMMONWEALTH OF PENNSYLVANIA,         :
DEPARTMENT OF COMMUNITY AND           :
ECONOMIC DEVELOPMENT, OFFICE          :
OF OPEN RECORDS, AND ERIK             :
ARNESON, EXECUTIVE DIRECTOR OF        :
THE OFFICE OF OPEN RECORDS,           :
                                      :
                Appellees             :
                                      :
PENNSYLVANIA ASSOCIATION OF           :
SCHOOL RETIREES, URENEUS V.           :
KIRKWOOD, JOHN B. NYE, STEPHEN        :
M. VAK, AND RICHARD ROWLAND AND       :
SIMON CAMPBELL,                       :
                                      :
                Intervenors

THE PENNSYLVANIA STATE                :   No. 22 MAP 2015
EDUCATION ASSOCIATION, BY LYNNE       :
WILSON, GENERAL COUNSEL,              :   Appeal from the Order of the
WILLIAM MCGILL, F. DARLENE            :   Commonwealth Court at No. 396 MD
ALBAUGH, HEATHER KOLANICH,            :   2009 dated February 17, 2015.
WAYNE DAVENPORT, FREDERICK            :
SMITH, JAMIE MCPOYLE, BRIANNA              : ARGUED: April 5, 2016
MILLER, VALERIE BROWN, JANET               :
LAYTON, KORRI BROWN, AL REITZ,             :
LISA LANG, BRAD GROUP AND                  :
RANDALL SOVISKY                            :
                                           :
                                           :
            v.                             :
                                           :
                                           :
COMMONWEALTH OF PENNSYLVANIA,              :
DEPARTMENT OF COMMUNITY AND                :
ECONOMIC DEVELOPMENT, OFFICE               :
OF OPEN RECORDS, AND ERIK                  :
ARNESON, EXECUTIVE DIRECTOR OF             :
THE OFFICE OF OPEN RECORDS                 :
                                           :
PENNSYLVANIA ASSOCIATION OF                :
SCHOOL RETIREES, URENEUS V.                :
KIRKWOOD, JOHN B. NYE, STEPHEN             :
M. VAK, AND RICHARD ROWLAND AND            :
SIMON CAMPBELL,                            :
                                           :
                   Intervenors             :
                                           :
CROSS APPEAL OF: OFFICE OF OPEN            :
RECORDS, AND ERIK ARNESON,                 :
EXECUTIVE DIRECTOR OF THE                  :
OFFICE OF OPEN RECORDS                     :
                                           :
                                           :


                             CONCURRING OPINION


JUSTICE WECHT                                          DECIDED: October 18, 2016
      The question in this case is not one of statutory interpretation.   It is one of

constitutional right. The privacy protection for home addresses is unaffected by the




                 [J-44A-2016 and J-44B-2016] [MO: Donohue, J.] - 2
General Assembly’s adoption of the Right to Know Law (“RTKL”)1 in place of the Right

to Know Act (“RTKA”).2

       Putting aside all other questions, the first and dispositive issue in this case is

whether there is in fact a constitutional right to privacy in Pennsylvania outside of the

search and seizure context addressed in Article 1, Section 8. As the learned majority

demonstrates, such protection clearly does exist. It is contained in Article 1, Section 1

of the Pennsylvania Constitution, which safeguards certain “inherent and indefeasible

rights, among which are those of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and reputation, and of pursuing [citizens’] own

happiness.” Pa. Const. art 1, § 1.

       No “statutory locus,” see Maj. Op. at 21, is required in order for this constitutional

protection to retain vitality and earn protection from this Court. It is not necessary or

appropriate for courts to parse whether constitutionally protected information falls within

or without the “personal security” exception of the statute. Notwithstanding its analysis

of the RTKA and the RTKL, the majority astutely stresses that “constitutionally protected

privacy interests must be respected even if no provision of the RTKL speaks to

protection of those interests.” Id. at 26. Were we simply interpreting the language of

the RTKL as distinct from that of the RTKA, the Office of Open Record (“OOR”)’s

statutory interpretation argument would be plausible. However, although the General

Assembly may by statute elect to provide greater protections than those ensured by our

Constitution, no legislation may diminish those protections.




1
       65 P.S. §§ 67.101-67.3104.
2
       65 P.S. §§ 66.1-66.4 (repealed, effective January 1, 2009).



                  [J-44A-2016 and J-44B-2016] [MO: Donohue, J.] - 3
         The majority rejects the OOR’s contention that a decision protecting the home

addresses of teachers renders superfluous the statutory protection for home addresses

of judges, law enforcement officers and minors. See Maj. Op. at 27, n.8. The majority

explains that, instead, the statutory provisions demonstrate that the General Assembly

“has, in essence, already performed a balancing test for those categories.” Id. I would

not go as far as the majority in attempting to harmonize the legislature’s actions in this

regard with the constitutional text and spirit. While it is of course the province of the

legislative branch to balance the full panoply of policy and political considerations, it is

not for the legislature to adjudicate constitutional rights, nor balance those rights one

against the other.     The OOR’s contention that our decision renders the statutory

language superfluous should receive a candid response from us: it does indeed. We

need not account or answer for the General Assembly’s failure to recognize that the

home addresses of teachers and indeed all citizens are presumptively entitled to privacy

protection under our Constitution.

         We have recognized that the personal right to privacy emanating from Article I,

Section 1 protects one’s home address or other personal information from being

disclosed by state actors unless the public interest in the dissemination of that

information outweighs the potential invasion of any privacy interest.        See Tribune-

Review Publishing Co. v. Bodack, 961 A.2d 110, 115 (Pa. 2008); Pennsylvania State

Univ. v. State Employees’ Retirement Bd., 935 A.2d 530, 538 (Pa. 2007); Sapp Roofing

Co. v. Sheet Metal Workers’ Int’l Assoc., Local Union No. 12, 713 A.2d 627, 629 (Pa.

1998).     Home addresses may be released only if the public interest in disclosure

outweighs the right to privacy that is being invaded. It is of no constitutional moment

that the appellant association here happens to represent public school teachers, as

opposed to police officers, sanitation workers, firefighters, or any other particular




                    [J-44A-2016 and J-44B-2016] [MO: Donohue, J.] - 4
category of public employee. I can surmise few circumstances short of employee fraud

or criminality in which the public interest in disclosure of any public employee’s home

address by his or her public employer will outweigh the employee’s privacy interest in

nondisclosure.

       The majority dismisses Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003), as

“irrelevant”, inasmuch as that case implicated Article 1, Section 8 of the Pennsylvania

Constitution (dealing with search and seizure), rather than Article 1, Section 1 (dealing

with inherent rights). See Maj. Op. at 28-29. I too recognize the important distinction

between the privacy protections afforded by these discrete constitutional provisions.

However, I would not have passed up the opportunity to distance ourselves from

Duncan’s overbroad proclamation that “in this day and age where people routinely

disclose their names and addresses to all manner of public and private entities,”

individuals lack a reasonable expectation of privacy in such information. See Duncan,

817 A.2d at 466. In light of the majority’s well-reasoned analysis today, it seems quite

clear that the above-quoted language from Duncan is not faithful to our Constitution and

precedents, at least within the context of Article 1, Section 1.

       As the United States Supreme Court has observed, it may well be true that home

addresses are publicly available through easily accessible sources.          See Dep’t of

Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989). However, “[a]n

individual’s interest in controlling the dissemination of information regarding personal

matters does not dissolve simply because that information may be available to the

public in some form.” Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487,

500 (1994).    Although individuals voluntarily may reveal their home addresses in a

variety of contexts, i.e., obtaining various licenses, going to court, or owning property,

this voluntary disclosure is legally distinct from and irrelevant to the question of whether




                   [J-44A-2016 and J-44B-2016] [MO: Donohue, J.] - 5
a public employer must produce its employees’ home addresses upon demand. Nor is

it relevant as a matter of constitutional law that home addresses are available in the

public domain and accessible through internet searches or particular websites. That

such information may be uncovered by private citizens through industry or skullduggery

does not mean that government must employ public resources to assist in that activity.

      In all other respects, I join the majority’s opinion.




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