            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Governor’s Office                        :
of Administration,                       :
                                         :
                              Petitioner :
                                         :
                       v.                : No. 103 C.D. 2017
                                         : Submitted: October 17, 2018
Simon Campbell,                          :
                                         :
                              Respondent :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE WOJCIK                                      FILED: January 24, 2019


               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 OOR erred by ordering OA to disclose
Commonwealth employees’ counties of residence without first performing a
constitutional balancing test. Upon performing a constitutional balancing test, as
required by Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa.
2017), we reverse OOR’s determination insofar as it held that Commonwealth

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
employees’ counties of residence are subject to disclosure and affirm in all other
respects.
             On October 19, 2016, Requester submitted the following request to 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 the budget, spending, revenue and employees. Of the records
requested, the names and job titles of 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, OA denied the request to the extent it sought employees’ dates of
birth and counties of residence.
             Requester appealed to OOR challenging the denial and asserting the
information requested is subject to public disclosure. OOR invited the parties to
supplement the record and directed OA to notify any third parties of their ability to
participate in this appeal. Both parties submitted position statements. OA submitted
the affidavits of Erik Avakian, Chief Information Security Officer for the
Commonwealth, regarding dates of birth, and Jason Thomas, Acting Director for the
Human Resources Service Center for the Commonwealth (HR Director), regarding
the counties of residence.

                                          2
                   OOR considered the arguments and evidence presented, but did not
perform a balancing test. On December 28, 2016, OOR issued its final determination
granting the appeal in part and denying it in part. Specifically, OOR denied the
appeal to the extent that the request sought the employees’ dates of birth. However,
OOR granted the appeal insofar as the request sought Commonwealth employees’
counties of residence information. OOR directed OA to provide Requester with
Commonwealth employees’ counties of residence within 30 days of the date of the
order.
                   OA then petitioned this Court for review.2 OA also requested a stay of
the proceedings pending the Supreme Court’s disposition of Reese, which involved
the identical issue presented here. We granted the stay. See Governor’s Office of
Administration v. Campbell (Pa. Cmwlth., No. 103 C.D. 2017, filed July 7, 2017).
Following the Supreme Court’s decision in Reese, this Court lifted the stay and
directed OA to file a supplemental brief addressing Reese.3 Commonwealth Court
Order, 3/13/2018.
                   In this appeal, OA argues that OOR erred by not conducting a balancing
test before directing the disclosure of personal information, including county of
residence, based on Reese. We agree.
                   In Reese, the Pennsylvanians for Union Reform (PFUR) sought a list of
all Commonwealth employees from the State Treasurer, including names, dates of
birth and voting residences, compiled pursuant to Section 614 of the Administrative


         2
         For appeals from determinations made by 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 filed a petition of nonparticipation and did not file a brief in opposition.


                                                     3
Code of 1929 (Administrative Code),4 without redaction.                    Section 614 of the
Administrative Code explicitly makes an employee’s county of residence, among
other things, a public record. In response, the Treasurer filed a complaint against
PFUR and its president (Requester herein), seeking declaratory and injunctive relief
concerning the application of the RTKL and its exceptions to PFUR’s request.
Specifically, the Treasurer asked for a declaration that the RTKL’s exceptions for
public records are applicable to all requests for public records, including records
identified as “public” pursuant to the Administrative Code. Further, the Treasurer
asserted that the balancing test established in Pennsylvania State Education
Association v. Department of Community and Economic Development, 148 A.3d 142
(Pa. 2016) (PSEA), should be applied prior to disclosure. After the pleadings closed,
the Treasurer filed a motion for partial judgment on the pleadings.                        Upon
determining that the list is accessible to Commonwealth citizens at the State Library
without a written request or other limitation by the RTKL, this Court denied the
Treasurer’s partial motion and dismissed his claim for injunctive relief. See Reese,
173 A.3d at 1152-53.
                 However, on appeal, the Supreme Court vacated and remanded. In so
doing, the Court examined the contours of PSEA, and ultimately reaffirmed the
rights of public employees to informational privacy, as guaranteed by Article I,
Section 1 of our Constitution.5 Reese, 173 A.3d at 1159.

       4
         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.

       5
           Article I, Section 1 states:

                  All men are born equally free and independent, and have certain
                 inherent and indefeasible rights, among which are those of enjoying


                                                 4
              In PSEA, the Supreme Court described the “right to informational
privacy” as “the right of the individual to control access to, or the dissemination of,
personal information about himself or herself.” 148 A.3d at 150.

              In PSEA, this Court examined Pennsylvania’s
              constitutional protections for informational privacy and
              the scope of the “personal security” exception in section []
              708[(b)(1)(ii)] of the RTKL. 65 P.S. § 67.708(b)(1)(ii).
              Reviewing numerous prior decisions of both this Court
              and our intermediate appellate courts, we reaffirmed that
              the citizens of this Commonwealth, pursuant to Article I,
              Section 1 of the Pennsylvania Constitution, have a right to
              informational privacy, namely the right of an individual to
              control access to, and dissemination of, personal
              information about himself or herself. PSEA, 148 A.3d at
              150. Accordingly, we ruled that before the government
              may release personal information, it must first conduct a
              balancing test to determine whether the right of

              and defending life and liberty, of acquiring, possessing and
              protecting property and reputation, and of pursuing their own
              happiness.

Pa. Const. art. I, §1. With respect to the privacy rights guaranteed by Article I, Section 1, the
Supreme Court has explained:

              One of the pursuits of happiness is privacy. The right of privacy is
              as much property of the individual as the land to which he holds title
              and the clothing he wears on his back. . . . .

              The greatest joy that can be experienced by mortal man is to feel
              himself master of his fate,—this in small as well as in big things. Of
              all the precious privileges and prerogatives in the crown of
              happiness which every American citizen has the right to wear, none
              shines with greater luster and imparts more innate satisfaction and
              soulful contentment to the wearer than the golden, diamond-studded
              right to be let alone. Everything else in comparison is dross and
              sawdust.

Commonwealth v. Murray, 223 A.2d 102, 109-110 (Pa. 1966).


                                                5
              informational privacy outweighs the public’s interest in
              dissemination. Id. at 144. In so ruling, we were clear that
              while this balancing test has typically been located in the
              “personal security” exemption of the [former Right-to-
              Know Act6 (repealed)] (and later in the RTKL), it is not a
              statutory, but rather a constitutional requirement, and it is
              required even in the absence of any statutory requirement.
              Id. at 156. As such, the PSEA balancing test is applicable
              to all government disclosures of personal information,
              including those not mandated by the RTKL or another
              statute.

Reese, 173 A.3d at 1159 (emphasis added).
              Thus, in Reese, the Supreme Court held that a Commonwealth
employee’s right of informational privacy in his or her home address is guaranteed
by Article I, Section 1 of the Pennsylvania Constitution. Reese, 173 A.3d at 1159.
This right may not be violated unless outweighed by a public interest favoring
disclosure. Id. PSEA necessitates the balancing of personal privacy rights against
the public interest in disclosure. Id. “Pennsylvania courts are obliged to construe
statutory enactments as consistent with the Pennsylvania Constitution, and we must
presume that the General Assembly did not intend to violate the Constitution when
enacting Section 614 of the Administrative Code.” Id.
              Ultimately, in Reese, the Supreme Court remanded the matter to allow
the Treasurer to perform the balancing test in the first instance. The Court instructed
that, “[i]n performing these balancing tests, the Treasurer need not in every instance
do so ab initio, as we see no impediment to his reliance, when appropriate, on
legislative pronouncements or prior decisions of this or other Pennsylvania courts.”
Id.


       6
         Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§66.1-66.9, repealed by
the Act of February 14, 2008, P.L. 6.
                                              6
                In this case, OA has already conducted the PSEA balancing test, see
R.R. at 19a, and, as a result, declined to disclose Commonwealth employees’
counties of residence in response to the request. When Requester appealed to OOR,
OA submitted legal argument and an affidavit in support of its balancing test results
and its ultimate determination not to disclose counties of residence under PSEA. In
contrast, Requester did not advance any public interest in the records sought. See
R.R. at 114a.
                OOR determined, without the benefit of Reese, that county of residence
is not the type of personal information protected by the constitutional right to
informational privacy. OOR’s Final Determination, 12/28/16, at 10. OOR granted
Requester’s RTKL request and directed the disclosure of Commonwealth
employees’ counties of residence without first conducting a constitutional balancing
test to determine whether the right of informational privacy outweighs the public’s
interest in dissemination. In the process, OOR effectively held that OA erred in
conducting the balancing test in the first place because the request did not implicate
the constitutional right of informational privacy. In this regard, OOR erred.
                Based on PSEA and Reese, county of residence information is protected
by the constitutional right of informational privacy. As a result, the government unit
must apply a balancing test before disclosing such information.7 Reese, 173 A.3d at
1159.       Likewise, a reviewing tribunal must do the same before ordering the
disclosure of such information. See Reese; PSEA. Although we would ordinarily


        7
          Once the constitutional right of informational privacy is triggered, we no longer review
the matter under the RTKL. See Reese; PSEA. Rather, we review the matter under the
Pennsylvania Constitution and the tests espoused in PSEA and Reese. See Reese; PSEA. If the
right to privacy is outweighed by a public interest favoring disclosure, then and only then may the
matter proceed under the RTKL.


                                                7
remand to OOR to perform this balancing test,8 given our plenary review, and in the
interest of judicial economy, we shall perform the balancing test set forth in PSEA,
rather than remand.9
              As PSEA instructs, a balancing test weighs “privacy interests and the
extent to which they may be invaded against the public benefit which would result
from disclosure.” 148 A.3d at 154-55 (citations omitted). In performing this test,
we may rely upon, when appropriate, “legislative pronouncements or prior
decisions” of Pennsylvania courts. Reese, 173 A.3d at 1159.
              Here, OA presented evidence, in the form of an affidavit of HR
Director. HR Director attested that where an employee lives is a unique piece of
data, housed in the employee’s confidential personnel file, the use of which is related
exclusively to the Commonwealth’s role as employer. R.R. at 75a. He stated that
the Commonwealth uses employee address information only for the purpose of
discerning the particular benefits to which an employee is entitled. R.R. at 75a. He
explained that benefits packages, health benefits programs and personnel-related
requirements differ from county to county. R.R. at 75a. In addition, information
about other sub-units of government related to an employee’s residence (e.g.,
municipality, township) are also saved in order to provide appropriate tax
information to relevant taxing authorities. R.R. at 75a.



       8
         OOR is fully capable of performing this balancing test. See, e.g., Department of Human
Services v. Pennsylvanians for Union Reform, Inc., 154 A.3d 431, 437 (Pa. Cmwlth. 2017)
(remanding the matter to OOR to perform the balancing test required under PSEA); State
Employees’ Retirement System v. Campbell, 155 A.3d 1153, 1156 (Pa. Cmwlth. 2017) (same).

       9
         See Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corp.), 883 A.2d 518,
531 n.11 (Pa. 2005) (recognizing court’s authority to decide issue rather than remand).


                                              8
                 According to HR Director, Commonwealth human resource
professionals consider demographic information about an employee to be
confidential. R.R. at 76a. Moreover, the confidential nature of demographic
information is a well-accepted best practice in the human resource industry. R.R. at
76a. It is memorialized as a Commonwealth policy in Management Directive
505.18, Maintenance, Access, and Release of Employee Information,10 which
indicates that access to confidential employee information is restricted to those who
need to use the information for job-related purposes, the employee or persons
explicitly permitted by the employee. R.R. at 76a.
                 HR Director opined that Commonwealth employees have a reasonable
expectation that their counties of residence will be kept private when such
information is in the hands of the Commonwealth acting as their employer. R.R. at
76a. The expectation is that only those who have a legitimate need, or those
explicitly authorized by an employee, will access the employee’s records.




       10
            Specifically, the policy provides:

                 Public Employee information. Public employee information
                 pertaining to most commonwealth employees for the purpose of this
                 directive consists of employing agency; last name; first name;
                 organization name; job (class) code; job (class) name; headquarter
                 agency address, headquarter agency telephone number; bargaining
                 unit; biweekly salary; hourly rate; per diem rate; pay schedule; pay
                 level; pay scale group; and years of service.

R.R. at 76a (quoting Management Directive 505.18). The directive is also available to the public
on OA’s portal at: https://www.oa.pa.gov/Policies/md/Documents/505_18.pdf (last visited on
January 10, 2019).



                                                  9
               In addition, the act known as the Inspection of Employment Records
Law11 supports the ethos of confidentiality protecting employment records by
creating an expectation that only those who have a legitimate need, or those
explicitly authorized by an employee, will access the employee’s records. Further,
Section 731 of The Fiscal Code12 treats information collected for tax purposes as
confidential, for official use only.
               Conversely, Requester provided no countervailing public interest in
support of disclosure. In fact, Requester refused to advance any public interest in
support of his Request: “There is a public interest in the records sought but I refuse
to argue it.” R.R. at 114a. Requester stated that his private goal was to make it
easier to find the constitutionally protected home addresses of all Commonwealth
employees. R.R. at 114a.
               On balance, we perceive no public benefit or interest in disclosing the
requested counties of residence of Commonwealth employees and Requester has
asserted none. The RTKL was “designed to promote access to official government
information in order to prohibit secrets, scrutinize the actions of public officials, and
make public officials accountable for their actions . . . .” Governor’s Office of
Administration v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011). The requested
disclosure of information about the counties of residence of Commonwealth
employees is not closely related to the official duties of the Commonwealth
employees, and does not provide insight into their official actions. Indeed, “[t]he
disclosure of personal information such as home addresses, reveals little, if anything


      11
           Act of November 26, 1978, P.L. 1212, as amended, 43 P.S. §§1321-1324.

      12
          Act of April 9, 1929, P.L. 343, added by the Act of June 6, 1939, as amended,
72 P.S. §731.
                                              10
about the workings of government[.]”           PSEA, 148 A.3d at 145 (quoting
Pennsylvania State Education Association ex rel. Wilson v. Department of
Community and Economic Development, Office of Open Records, 981 A.2d 383, 386
(Pa. Cmwlth. 2009), aff’d, 2 A.3d 558 (Pa. 2010)).
             In rejecting a similar request for the home addresses of public school
employees, our Supreme Court stated:

             [N]othing in the RTKL suggests that it was ever intended
             to be used as a tool to procure personal information about
             private citizens or, in the worst sense, to be a generator of
             mailing lists. Public agencies are not clearinghouses of
             “bulk” personal information otherwise protected by
             constitutional privacy rights.

PSEA, 148 A.3d at 158.
             For these reasons, we conclude that the requested Commonwealth
employees’ counties of residence information is protected by the constitutional right
of informational privacy and this right is not outweighed by the public’s interest in
dissemination in this case. Consequently, OOR erred in ordering the disclosure of
Commonwealth employees’ counties of residence under the RTKL. Therefore, we
reverse that portion of OOR’s final determination, and affirm in all other respects.




                                        MICHAEL H. WOJCIK, Judge




                                          11
         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 24th day of January, 2019, we REVERSE IN PART
the Office of Open Records’ final determination, dated December 28, 2016, insofar
as it held that a Commonwealth employee’s county of residence is subject to
disclosure and AFFIRM IN ALL OTHER RESPECTS.



                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
