                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Feldman,                                :
                        Petitioner              :
                                                :    No. 768 C.D. 2018
                v.                              :
                                                :    Argued: March 14, 2019
Pennsylvania Commission                         :
on Crime and Delinquency,                       :
                  Respondent                    :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                                   FILED: April 18, 2019


                Matthew Feldman (Requester) petitions for review of the May 8, 2018
final determination of the Pennsylvania Office of Open Records (OOR) that denied
in part, and dismissed as moot in part, his appeal from the Pennsylvania Commission
on Crime and Delinquency’s (Commission) denial of his request for documents
under the Right-to-Know Law (RTKL).1


                               Facts and Procedural History
                On January 19, 2018, Requester submitted a RTKL request, by email,
to the Commission seeking information relating to the Victims Compensation
Assistance Program (VCAP),2 which the Commission administers. (Reproduced

       1
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

       2
        Pursuant to sections 701-710 of the Crime Victims Act, Act of November 24, 1998, P.L.
882, 18 P.S. §§11.701-11.710, the Commission provides compensation to certain victims of
crimes.
Record (R.R.) at 5.)3 Specifically, Requester made the following requests for
documents:
               1. A list of individuals (with names and other identifying
               information redacted if necessary) whose applications for
               victim compensation benefits were denied/closed (i.e. not
               approved) from Oct. 1, 2015 – Sept. 30, 2016, along with
               the reason for the denial/closed status and individuals’
               race/ethnicity, gender, age, ZIP code, and county of
               residence.

               2. Same as #1 but for the period Oct. 1, 2016 – Sept. 30,
               2017.

(R.R. at 5.) On January 24, 2018, Requester spoke on the telephone with counsel
for the Commission. The Commission’s counsel informed Requester that the
Commission is not required to release confidential information under the RTKL.
Requester stated that he was not seeking confidential information, such as the names
or other identifying information of claimants for victim compensation.
Commission’s counsel agreed to allow the phone conversation to serve as an
amendment to the request, and thereby exclude confidential information, so that
Requester would not have to receive a denial and re-submit his request. (R.R. at 2,
6.)
               On January 26, 2018, the Commission issued an interim response to
Requester’s RTKL request. The Commission noted that, pursuant to the telephone
conversation, Requester agreed to amend his request to exclude confidential
information. The Commission also stated that the request was still being reviewed,
but that a final response would be provided by the Commission by February 26,
2018. (R.R. at 6.)


       3
          While Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173,
directs that the page numbers in the reproduced record be followed by the letter “a,” here, the page
numbers in the reproduced record do not contain such a designation.
                                                 2
             Thereafter, the Commission issued its final response on February 23,
2018, stating that the request was granted in part and denied in part.          The
Commission explained that it had attached a chart listing the number of, and reason
for, VCAP denials for the time period requested and a separate chart listing, by
county, the total number of claims made and the amounts awarded during that period.
However, the Commission stated that the request for “individuals’ race/ethnicity,
gender and age” was denied because, “[w]hile the VCAP application for
compensation benefits requests such demographic information, it is not required of
applicants, and is often not provided by them.” (R.R. at 8.) The Commission
explained that such “information [was] not maintained by this Agency in the regular
course of business.” Id. Accompanying the final response were four charts. One of
the charts listed the VCAP claims that were denied during the relevant time period,
sorted by the reasons for denials. The other three charts provided information about
claims filed and paid, but not claims denied. (R.R. at 10, 52-53, 54-88.)
             On March 9, 2018, Requester filed an appeal of the Commission’s final
response with the OOR, claiming that the final response was incomplete.
Specifically, Requester argued that the response only provided “a total number of
claims denied for particular reasons,” but did not provide “what [he] requested,
which [was] a listing of claims denied, with confidential information redacted, but
providing the [claimants’] race/ethnicity, gender, age, ZIP code and county of
residence.” (R.R. at 3.) Requester noted that the final response “provide[d] no
reason for the omission of zip code and county of residence.” Id. Requester also
asserted that although the Commission argued it did not maintain demographic data
for claim denials, demographic information is provided by the Commission to the
United States Department of Justice’s Office for Victims of Crime and published
online. (R.R. at 3-4.)



                                         3
                The Commission filed a response to Requester’s appeal on March 20,
2018. The Commission claimed that it provided information on claims by county of
origin and that the requested demographic information was exempt from disclosure
under section 708(b)(16)(iv) of the RTKL, which exempts from disclosure “[a]
record of an agency relating to or resulting in a criminal investigation, including . . .
a record that includes information made confidential by law or court order.” 65 P.S.
§67.708(b)(16)(iv). The Commission contended that the requested demographic
information was “made confidential by law” pursuant to section 709 of the Crime
Victims Act.4 (R.R. at 20-22.) On March 30, 2018, Requester filed a reply noting
that the exemption claimed by the Commission did not apply to aggregated data
because, pursuant to section 708(d) of the RTKL, “the exceptions set forth in
subsection (b) [of section 708 of the RTKL] shall not apply to aggregated data
maintained or received by an agency, except for data protected under subsection
(b)(1), (2), (3), (4) or (5).” 65 P.S. §67.708(d). Requester also noted that the
criminal investigation exception did not apply to the requested records because the
Commission does not conduct investigations, and that the requested information is
not confidential because it is regularly released to the public. (R.R. at 34-35.)




       4
           18 P.S. §11.709. Section 709 of the Crime Victims Act provides, in relevant part as
follows:

                (a) General rule.--All reports, records or other information
                obtained or produced by the bureau during the processing or
                investigation of a claim shall be confidential and privileged . . . .

                (b) Disclosure restricted.--Except as otherwise provided by law, no
                person who has had access to a report, record or any other
                information under this subsection shall disclose the content of such
                a report, record or other information . . . .

Id.
                                                 4
              Thereafter, the Commission filed a sur-reply.          The Commission
changed its position and concluded that it was possible “to add aggregate
information about race/ethnicity, gender and age of denied claimants to the data that
[had] already been provided without violating the law . . . regarding maintaining the
confidentiality of claimants under the Crime Victims Act.” (R.R. at 37.) The
Commission noted, however, that claimants were not required to provide such
demographic information and that the data was incomplete. Id. The Commission
attached three new charts to its reply: one listed the race of claimants whose claims
were denied; one listed the ages of claimants whose claims were denied; and one
listed the gender of claimants whose claims were denied. However, none of these
charts connected the demographic information to the reason for the denial. (R.R. at
37, 41-43.)
              The Commission also made a new argument with respect to
withholding zip code information. The Commission explained that providing a zip
code could “effectively breach confidentiality[,] which [Commission] policies and
the laws of the Commonwealth protect” and would be “counter to the concession
[the Commission] has made to provide aggregate data.”             (R.R. at 37.)    The
Commission also noted that “[i]dentifying claimants by zip code reduces the data
such that it is no longer aggregate, but is more identifiable with individual claimants,
and is tantamount to providing the claimants’ addresses.” (R.R. at 37-38.) In
support of this assertion, the Commission attached an affidavit signed by the Deputy
Director of the Commission’s Office of Victim Services, which stated, “[i]t is
possible that the zip codes of claimants whose claims have been denied can be
related back to the individual. My search demonstrated that in a number of cases
there is only one denial [in] one zip code. This is tantamount to providing the address
of a claimant.” (R.R. at 39-40.) The reply also stated that the Commission was not
required to maintain records of claimants’ zip codes, providing this information

                                           5
would require the Commission to cull its records to create a record that it does not
maintain in the regular course of business, and that, under the RTKL, it was not
required to create a record that does not currently exist. (R.R. at 38.)
              The OOR concluded that the Commission had “provided additional
aggregated data detailing the race/ethnicity, gender and age of denied claimants” and
that, “[t]herefore, insofar as it [sought] this material, the appeal [was] dismissed as
moot.” (OOR final determination at 5.) With respect to the zip code and county of
residence data for denied claimants, the OOR determined that the requested
information was confidential under section 709 of the Crime Victims Act, and that
the Commission’s release of aggregated data did not waive the applicability of the
Crime Victims Act to the remaining information requested. Id. Thus, the OOR held
that, pursuant to the Crime Victims Act, the Commission was under no obligation to
provide the remaining information. (OOR final determination at 6.) The OOR also
decided that because the remaining records were protected by the Crime Victims
Act, it did not need to address whether they related to a criminal investigation. Id.
Consequently, the OOR denied in part, and dismissed as moot in part, Requester’s
appeal, and determined the Commission was not required to take any further action.
Id.


                                        Discussion
              On appeal,5 Requester raises the following issues: (1) the Commission
never released the requested information because it did not provide the requested
information in a single chart; and (2) the Commission has not met its evidentiary
burden of demonstrating that it could not provide information about the zip codes



       5
         Our standard of review of a final determination issued by the OOR is de novo and our
scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).

                                             6
from which claims were denied without violating the confidentiality of the
claimants.
              Initially, we note that the general objective of the RTKL is “to empower
citizens by affording them access to information concerning the activities of their
government.” SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012).
Under the RTKL, “records are presumed to be public records, accessible for
inspection and copying by anyone requesting them, and must be made available to a
requester unless they fall within specific, enumerated exceptions or are privileged.”
Bowling v. Office of Open Records, 75 A.3d 453, 457 (Pa. 2013). Yet, under section
705 of the RTKL, “[w]hen responding to a request for access, an agency shall not
be required to create a record which does not currently exist or to compile, maintain,
format or organize a record in a manner in which the agency does not currently
compile, maintain, format or organize the record.” 65 P.S. §67.705.6
              The RTKL provides that “[a] record in the possession of a
Commonwealth agency or local agency shall be presumed to be a public record”;
however, this presumption does “not apply if: (1) the record is exempt under section
708 [of the RTKL];[7] (2) the record is protected by a privilege; or (3) the record is
exempt from disclosure under any other Federal or State law or regulation or judicial
order or decree.” Section 305 of the RTKL, 65 P.S. §67.305. The RTKL defines a
public record as “[a] record . . . of a Commonwealth or local agency that: (1) is not
exempt under section 708; (2) is not exempt from being disclosed under any other
Federal or State law or regulation or judicial order or decree; or (3) is not protected
by a privilege.” Section 102 of the RTKL, 65 P.S. §67.102.

       6
         A “Record” is defined under the RTKL to include information stored electronically.
Section 102 of the RTKL, 65 P.S. §67.102.

       7
         Section 708(b) of the RTKL, 65 P.S. §67.708(b), sets forth a number of exceptions from
disclosure under the RTKL.

                                              7
              Additionally, the RTKL states that “[n]othing in [the RTKL] shall
supersede or modify the public or nonpublic nature of a record or document
established in Federal or State law, regulation or judicial order or decree.” Section
306 of the RTKL, 65 P.S. §67.306. Similarly, “[i]f the provisions of [the RTKL]
regarding access to records conflict with any other Federal or State law, the
provisions of [the RTKL] shall not apply.” Section 3101.1 of the RTKL, 65 P.S.
§67.3101.1.


                 A. Release and Format of the Record Produced
              We first address whether the Commission provided the requested
information and whether the Commission was required to create a single chart for
the requested information and/or format it in the manner requested. Requester notes
that he requested aggregate data relating the reason for denial of a claim to each
denied claimant’s race/ethnicity, gender, age, zip code, and county of residence.
Requester maintains that the Commission has released only isolated bits of
information and has never fulfilled his actual request, i.e., aggregate data connecting
the reasons for denial of claims with demographic information. According to
Requester, the effect of the Commission’s piecemeal production has been to frustrate
the purpose of the request, which is to observe the relationship between the reason
for the denial of the claim and the demographic and geographic characteristics of the
claimants.    While the Commission claims that it has produced the requested
information, Requester argues that the production of four separate charts that do not
reference each other is not equivalent to his request. Requester contends that the
information he is seeking resides in the Commission’s database, that agencies cannot
deny a RTKL request because of their unwillingness to produce data from such
databases in a useable format, and that the release of data from an already existing
database does not constitute the creation of a record under the RTKL.

                                          8
             In contrast, the Commission simply argues that the RTKL does not
require it “to gather data, link it, match it, connect it, and coordinate it in order
to respond to a request under the RTKL.” (Commission’s Br. at 5) (emphasis added).
The Commission contends that the RTKL exempts from disclosure records that
include information made confidential by law or court order; individuals’ medical,
psychiatric, or psychological information; and records related to criminal
investigations. Additionally, pursuant to section 709 of the Crime Victims Act, 18
P.S. §11.709, the Commission is required to maintain the confidentiality of all
reports or records produced during the processing of claims. The Commission
asserts that, in an effort to respond to the request, it searched through data for
thousands of claims and provided aggregate information that did not breach the
confidentiality of the claimants. The Commission argues that it was not required to
“connect the dots” of the aggregated data in order to assist Requester in his “research
project.” (Commission’s Br. at 8.) It contends that under the RTKL it is not
obligated to create a record that does not currently exist and that Requester’s
main complaint is that the Commission “did not organize the data in a certain way,
[and] did not relate all aspects of the data, one to another, in a way that would provide
him with a ready, and indeed facile, conclusion for his research efforts.” Id.
(emphasis added).
             While the Commission contends that its claim denial records contain
information exempt from disclosure under the RTKL and section 709 of the Crime
Victims Act, it does not argue that the aggregated demographic data it already
provided to Requester is exempt from disclosure. Instead, it argues that it is not
required to create a record in response to the request.
             We note that in Department of Environmental Protection v. Cole, 52
A.3d 541 (Pa. Cmwlth. 2012), the requester sought information from the Department
of Environmental Protection related to a rebate program that was contained in a

                                           9
computer database. Id. at 543-44. The Department argued that it could not be
compelled to search through a computer database because that would constitute
creating a record that did not exist, which was prohibited under section 705 of the
RTKL. Id. In holding that the Department needed to provide the requested
documents, we determined that although section 705 of the RTKL “excuses an
agency from creating a new record or reorganizing existing records” and that “[a]n
agency need only provide the information in the manner in which it currently exists
. . . , drawing information from a database does not constitute creating a record”
under the RTKL. Id. at 547 (emphasis added). We explained that, “to the extent
requested information exists in a database, it must be provided,” but that the
Department was only required to provide information “in the format in which it
[was] available.” Id. at 548 (emphasis added). We further concluded that “pulling
information from a database is not the creation of a record,” and that while an agency
is not required to compile information in a certain way, “the information contained
in databases that is subject to disclosure under the [RTKL] must simply be
provided to request[ers] in the same format that it would be available to agency
personnel.” Id. at 549 & n.12 (emphasis added).
               To bolster our decision in Cole, we relied on our unreported decision in
Gingrich v. Pennsylvania Game Commission (Pa. Cmwlth., No. 1254 C.D. 2011,
filed January 12, 2013),8 where the requester submitted a request seeking statistical
data relating to the State’s annual deer harvest, and requested the data in a specific
format. Id., slip op. at 2-4. There, we concluded that under the plain language of
section 705 of the RTKL, “an agency is not required to create or format a record
in a manner specified by a requester [but, r]ather, an agency need only provide



       8
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

                                                10
the information in the manner in which it currently exists.” Id., slip op. at 14-
15 (emphasis added). We also held
              that a requester suggests a format or provides examples of
              the records sought in a certain format does not mean that
              a requester seeks special compilation. Requesters may
              provide suggestions or examples in order to better inform
              an agency about the information requested, and we have
              no desire to discourage that practice. In this case,
              [r]equester advised that the formats were suggested rather
              than required.       [The r]equester thus placed the
              Commission on notice of his preferences—no more, no
              less.

              Providing data from an agency database does not
              constitute creating a record. This Court holds that
              information contained in a database must be accessible to
              requesters and provided in a format available to the
              agency. To the extent that the data exists in some format,
              the Commission must provide it. See 65 P.S. §67.305 (any
              record in possession of an agency is public unless exempt
              as proven by the agency). Accordingly, the Commission
              must disclose data responsive to the [request] in any
              format in which the information exists.

Id., slip op. at 16; see also Paint Township v. Clark, 109 A.3d 796, 805-06 (Pa.
Cmwlth. 2015) (same). Thus, under the RTKL and our case law, agencies must only
produce database information in the format that is available to the agency and they
are not required to produce the database information in a format specifically
requested or in a format that does not exist.
              Nevertheless, here, despite the Commission’s argument regarding the
creation of a record from aggregated data, we conclude that under the Crime Victims
Act and section 306 of the RTKL all of the requested information is precluded from
disclosure.
              Section 708(b) of the RTKL provides a number of exceptions from
disclosure, such as records “the disclosure of which . . . would result in the loss in
                                          11
Federal or State funds by an agency or the Commonwealth,” and records that “would
be reasonably likely to result in a substantial and demonstrable risk of physical harm
to or the personal security of an individual,” as well as approximately 30 additional
exceptions, including, as noted by the Commission, “record[s] of an agency relating
to or resulting in a criminal investigation.” 65 P.S. §67.708(b) Section 708(d) of
the RTKL provides that “[t]he exceptions set forth in subsection (b) [of the RTKL]
shall not apply to aggregated data maintained or received by an agency, except for
data protected under subsection (b)(1), (2), (3), (4) or (5).” 65 P.S. §67.708(d). The
RTKL defines “aggregated data” as “[a] tabulation of data which relate to broad
classes, groups or categories so that it is not possible to distinguish the properties of
individuals within those classes, groups or categories.” Section 102 of the RTKL,
65 P.S. §67.102.
             However, as noted previously, section 306 of the RTKL exempts
from disclosure the release of any records that are in conflict with state or
federal law. In the instant case, section 709 of the Crime Victims Act provides a
clear prohibition against disclosing any victim information, stating as follows:
             (a) General rule.--All reports, records or other
             information obtained or produced by the bureau
             during the processing or investigation of a claim shall
             be confidential and privileged, shall not be subject to
             subpoena or discovery, shall be used for no purpose other
             than the processing of a claim and, except as otherwise
             provided by law or as provided in this section, shall not be
             introduced into evidence in any judicial or administrative
             proceeding.

             (b) Disclosure restricted.--Except as otherwise provided
             by law, no person who has had access to a report,
             record or any other information under this subsection
             shall disclose the content of such a report, record or
             other information or testify in a judicial or administrative
             proceeding without the written consent of the direct victim

                                           12
            or intervenor or, if the direct victim or intervenor is
            deceased, the claimant.

            (c) Construction.--This section shall not be construed to
            preclude or limit introduction of the contents of a report,
            record or other information in an appeal hearing before the
            Office of Victims’ Services or in an investigation,
            prosecution or judicial proceeding enforcing section 1303
            or in communicating with the prosecutor’s office
            regarding restitution.

18 P.S. §11.709 (emphasis added).
            Although the Commission believed that, pursuant to section 708(d) of
the RTKL, it was required to provide aggregated data on claimants, given the
language of section 709 of the Crime Victims Act, it was not required to do so.
Section 709 makes clear that all reports, records or information obtained or
produced during the processing or investigation of a claim shall be confidential
and privileged. Here, Requester specifically requested “a list of individuals (with
names and other identifying information redacted if necessary)” whose victim
compensation benefits were denied, “along with the reason for the denial/closed
status and individuals’ race/ethnicity, gender, age, ZIP code, and county of
residence.” (R.R. at 5.) Demographic data submitted by claimants regarding their
race/ethnicity, age, and/or gender qualifies as information obtained by the
Commission during the processing of claims and information regarding the reason
for denial qualifies as information produced during the processing or investigation
of a claim; thus, this information must be kept confidential. Because section 709 of
the Crime Victims Act mandates that all information obtained or produced by the
Commission shall remain confidential, such information is not subject to disclosure
under the RTKL. See Section 306 of the RTKL, 65 P.S. §67.306.
            While section 708(d) of the RTKL provides that several of the RTKL
exceptions of section 708(b) do not apply to “aggregated data,” the aggregated data

                                        13
provision only applies to the section 708(b) exceptions and not to records or
documents that are considered nonpublic under other state laws. In other words,
while most of the RTKL exceptions of 708(b) do not apply when data is aggregated,
section 708(d) of the RTKL is inapplicable to records that are exempt from
disclosure under another state law. See Section 306 of the RTKL, 65 P.S. §67.306
(“Nothing in [the RTKL] shall supersede or modify the public or nonpublic nature
of a record or document established in . . . State law . . . .”); Section 305 of the RTKL,
65 P.S. §67.305 (providing that the presumption that a record in the possession of
Commonwealth is a public record does not apply when “the record is exempt from
disclosure under any . . . State law”). Because demographic data is exempt from
disclosure pursuant to a different state law, i.e., section 709 of the Crime Victims
Act, the Commission misconstrued the RTKL by providing some of the requested
data to Requester, even if only produced in aggregate form.
             In several cases involving other state statutes protecting the
confidentiality of records, we reached similar results. In Jones v. Office of Open
Records, 993 A.2d 339, 340 (Pa. Cmwlth. 2010), we examined whether a
Pennsylvania Board of Probation and Parole (Board) regulation exempted records
from being disclosed under the RTKL. The relevant regulation provided that
records, evaluations, and opinions in the Board’s possession relating to “matters
concerning a probationer or parolee are private, confidential and privileged.” 37
Pa. Code §61.2 (emphasis added). Since the requester asked for recommendations
made by a sentencing judge and prosecuting attorney, we held that, pursuant to the
regulation and section 306 of the RTKL, the requested records were not subject to
disclosure. Jones, 993 A.2d at 342.
             Similarly, in the unreported decision of Danvers v. Department of
Aging (Pa. Cmwlth., No. 2324 C.D. 2012, filed July 18, 2013), slip op. at 1-2, the
requester sought records from adult protective services relating to his mother’s care

                                           14
and alleged neglect in a nursing home. In denying the request, adult protective
services relied on section 306(a) of the Older Adults Protective Services Act,9 which
states that “information contained in reports, records of investigation, client
assessment and service plans shall be considered confidential” and “shall not be
disclosed to anyone outside the agency.” Danvers, slip op. at 3 (citing 35 P.S.
§10225.306(a)). Because the Protective Services Act “provide[d] a clear prohibition
from disclosing reports and records of investigation,” which were the records sought
by the requester, we concluded that the requested records were exempt from
disclosure under the RTKL. Danvers, slip op. at 4.
              Likewise here, section 709 of the Crime Victims Act provides a clear
prohibition from disclosing information obtained by the Commission during the
processing of a claim, including demographic data, which are the records Requester
seeks. Therefore, while the Commission was not required to create a new format or
record of released aggregated data—and regardless of whether the Commission
provided the actual requested data, whether the information exists in the
Commission’s database in the format requested, or whether the request sought the
creation of a record that did not exist—because section 709 of the Crime Victims
Act exempts from disclosure any information obtained or produced as part of a
claim, Requester is not entitled to additional information regarding victims’ claims.10


       9
         Section 306(a) of the Older Adults Protective Services Act, Act of November 6, 1987,
P.L. 381, as amended, 35 P.S. §10225.306(a).

       10
          We also note that, as pointed out by Requester, some aggregated claimant demographic
information appears on the United States Department of Justice, Office for Victims of Crime
website. This may be because the Office for Victims of Crime provides grants to state victim
compensation programs, see Sections 20102 and 20103 of Title 34 of the United States Code, 34
U.S.C. §§20102-20103, provided that the state program does not discriminate against recipients of
benefits and submits recipients’ demographic data to the Office for Victims of Crime to ensure
compliance with the non-discrimination provisions, see Section 20110 of Title 34 of the United
States Code, 34 U.S.C. §20110; Section 94.114 of Title 28 of the Code of Federal Regulations, 28
C.F.R. §94.114; Sections 42.104-42.106, 42.203, and 42.207 of the Code of Federal Regulations,
                                               15
                                    B. Zip Code Data
              Next, we address whether the Commission has met its evidentiary
burden of demonstrating that it could not provide information about the zip codes
from which claims were denied without violating the claimants’ confidentiality.
Requester argues that the Commission’s “thin assertion” that some zip codes
produced so few denials that providing that information could allow the public to
identify the claimant, did not meet the Commission’s burden of demonstrating that
zip codes cannot be produced. (Requester’s Br. at 21.) Requester contends that the
Commission has not explained how releasing zip code information could allow the
public to identify the claimant, and that the Commission is certainly not justified in
withholding all zip code information.             Requester further asserts that if the
Commission is concerned that releasing zip codes could lead to determining the
identity of a claimant, that risk could be addressed by simply redacting the zip codes
that only have one denied claimant, instead of denying zip code information entirely.
Requester also alleges that the OOR erred in relying on section 709 of the Crime
Victims Act, 18 P.S. §11.709, and section 306 of the RTKL, 65 P.S. §67.306, to
justify not disclosing any zip code information based on its conclusion that the
confidentiality protections granted by those statutes do not apply to aggregated data.
              Conversely, the Commission asserts that producing zip code
information would violate its statutory obligation under the Crime Victims Act to
preserve the confidentiality of a claimant’s information. It argues that releasing zip


28 C.F.R. §§42.104-42.106, 42.203, 42.207. Despite the fact that some claimant demographic is
available online, in Coulter v. Pennsylvania Board of Probation and Parole, 48 A.3d 516 (Pa.
Cmwlth. 2012), we concluded that “estoppel as a doctrine does not apply to RTKL requests
because whether a document is a public document or exempt, that character does not change just
because the agency releases some information contained in the document.” Id. at 519; cf. Board
of Supervisors of Milford Township v. McGogney, 13 A.3d 569, 572-73 (Pa. Cmwlth. 2011)
(holding that information does not become a public record if an agency’s open records officer
inadvertently discloses a non-public record).

                                             16
codes for applicants poses a danger of breaching confidentiality “where the area
covered by the zip code is sparse, and where there may have been a single or a very
small number of claims from the area.” (Commission’s Br. at 9.) It maintains that
there is a real danger that the zip codes of some claimants whose claims were denied
could enable them to be identified. The Commission contends it complied with the
confidentiality requirements of the Crime Victims Act by refusing to release the zip
codes for claimants living in sparsely populated regions.
               Based on our analysis in the preceding section, we agree with the OOR
that, pursuant to section 709 of the Crime Victims Act and section 306 of the RTKL,
information on the zip codes and counties of residence of denied claimants is exempt
from disclosure. The request, here, sought “a list of individuals (with names and
other identifying information redacted if necessary)” whose victim’s compensation
benefits claims were denied “along with the reason for the denial/closed status and
individuals’ . . . ZIP code, and county of residence.” (R.R. at 5) (emphasis added).
Like demographic data, geographic data, such as zip codes and counties of residence,
are obtained by the Commission during the processing of claims. Because section
709 of the Crime Victims Act requires that all information obtained during the
processing of a claim shall remain confidential, the requested geographic data is not
subject to disclosure under the RTKL.11



       11
          Moreover, under our precedent, zip code and county of residence information may be
generally considered confidential and exempt from disclosure under the RTKL. In Pennsylvania
State Education Association v. Department of Community and Economic Development (PSEA),
148 A.3d 142 (Pa. 2016), our Supreme Court held that there is a constitutional right to privacy in
one’s home address in connection with RTKL requests, and that “the right to informational privacy
is guaranteed” by the Pennsylvania Constitution “and may not be violated unless outweighed by a
public interest favoring disclosure.” Id. at 158. There, the Court concluded that the balancing
weighed in favor of prohibiting disclosure of home address information. Id. Subsequently, in
Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143 (Pa. 2017), our Supreme Court
explained that in PSEA, it determined a Commonwealth employee has a right to informational
privacy in his or her home address and that “before the government may release personal
                                               17
                                            Conclusion
               Because we conclude that the demographic and geographic data of
victims submitted by claimants for victims benefits compensation is not subject to
disclosure under section 709 of the Crime Victims Act and section 306 of the RTKL,
we affirm the determination of the OOR to the extent it denied Requester’s appeal.




                                                    ________________________________
                                                    PATRICIA A. McCULLOUGH, Judge




information, it must first conduct a balancing test to determine whether the right of informational
privacy outweighs the public’s interest in dissemination.” Reese, 173 A.3d at 1159.
        Thereafter, in Governor’s Office of Administration v. Campbell, 202 A.3d 890 (Pa.
Cmwlth. 2019), the requester sought Commonwealth employees’ counties of residence. Id. at             ,
slip op. at 2. Relying on PSEA and Reese, we concluded that “county of residence information is
protected by the constitutional right of informational privacy” and, therefore, that the government
had to apply a balancing test before disclosing the information. Campbell, 202 A.3d at          , slip
op. at 7. Based on the facts alleged, we could “perceive no public benefit or interest in disclosing
the requested counties of residence of Commonwealth employees.” Id. at , slip op. at 10. Thus,
we held that “the requested Commonwealth employees’ counties of residence information [was]
protected by the constitutional right of informational privacy and this right [was] not outweighed
by the public’s interest in dissemination in [that] case.” Id. at   , slip op. at 11; see also Brown
v. Pennsylvania Department of State (Pa. Cmwlth., No. 1046 C.D. 2017, filed May 25, 2018), slip
op. at 4-6 (holding that zip code information of Department of Corrections health care
professionals was exempt from disclosure under the RTKL).
                                                 18
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Feldman,                       :
                   Petitioner          :
                                       :    No. 768 C.D. 2018
            v.                         :
                                       :
Pennsylvania Commission                :
on Crime and Delinquency,              :
                  Respondent           :


                                    ORDER


            AND NOW, this 18th day of April, 2019, the final determination of the
Pennsylvania Office of Open Records, dated May 8, 2018, is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
