            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State System of                    :
Higher Education,                               :
                        Petitioner              :
                                                :
                       v.                       :    No. 1203 C.D. 2015
                                                :    Argued: March 7, 2016
The Fairness Center,                            :
                              Respondent        :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                             FILED: March 30, 2016


               The Pennsylvania State System of Higher Education (PASSHE)
petitions for review of the final determination of the Office of Open Records
(OOR) granting in part and denying in part the Fairness Center’s request made
pursuant to the Right-to-Know Law (RTKL).1                   In this case, we specifically
consider the applicability of the personal identification information exemption to
the individually-issued e-mail addresses that the Fairness Center sought for all




   1
       Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
PASSHE faculty and coaches for the 2014/2015 academic year.2 For the reasons
that follow, we affirm.
               In its April 2015 request, the Fairness Center requested that PASSHE
provide it with the names, corresponding e-mail addresses, titles and institutions of
employment for all PASSHE faculty and coaches for the 2014/2015 academic
year.3 In response, PASSHE disclosed a list of names, titles and institutions of
employment for all of its faculty and coaches.               It did not, however, disclose
individually-issued e-mail addresses, claiming that those were exempt from public
access as personal e-mail addresses under Section 708(b)(6)(i)(A) of the RTKL, 65
P.S. § 67.708(b)(6)(i)(A). The Fairness Center appealed to the OOR, challenging
PASSHE’s denial of access. Noting that the appeal was limited to the withheld e-
mail addresses, the OOR held that PASSHE was required to release any agency-
issued e-mail addresses that were held out to the public as places where faculty and
coaches could be contacted, but could withhold any secondary agency-issued
personal e-mail addresses that were not held out to the public or publically
accessible. OOR’s June 17, 2015 Determination at 5; Reproduced Record (R.R.)
at 202a. PASSHE’s petition for review followed.4
               Pursuant to Section 102 of the RTKL, 65 P.S. § 67.102, an agency is
required to provide any citizen access to any “public record” that is not (a) exempt


    2
       Section 708(b)(6)(i)(A) of the RTKL, referred to as the personal identification information
exemption, exempts from disclosure, in part, the following: “[a] record containing all or part of
a person’s Social Security number, driver’s license number, personal financial information, home
cellular or personal telephone numbers, personal e-mail addresses, employee number or other
confidential personal identification number.” 65 P.S. § 67.708(b)(6)(i)(A) (emphasis added).
     3
       The Fairness Center’s April 3, 2015 Request at 1; Reproduced Record (R.R.) at 8a.
     4
       Our review of a question of law under the RTKL is plenary. Stein v. Plymouth Twp., 994
A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010).



                                                2
from disclosure under Section 708 of the RTKL or any other federal or state law or
regulation or judicial order or decree, or (b) protected by some privilege. The
“Exceptions for public records” provision, found in Section 708(a)(1) of the
RTKL, 65 P.S. § 67.708(a)(1), places the burden on the agency to prove by a
preponderance of the evidence that a particular record is exempt from public
access.5 Delaware County v. Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1152
(Pa. Cmwlth. 2012). Exemptions from disclosure must be narrowly construed,
“[a]s the Law is remedial legislation 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. . . .” Bowling v.
Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453
(2013). See also Hous. Auth. of the City of Pittsburgh v. Van Osdol, 40 A.3d 209,
215 (Pa. Cmwlth. 2012).
               On appeal, PASSHE argues that agency-issued e-mail addresses for
its faculty and coaches are all personal and not subject to disclosure, regardless of
whether those addresses are primary or secondary in nature. To the contrary, we
conclude that the OOR correctly determined that the e-mail addresses at issue
could be divided into two categories: those e-mail addresses that were not held out
to the public or publically accessible and those that were held out to the public as
places where faculty and coaches could be contacted. As OOR held and consistent
with our case law applying the personal identification information exemption to
agency-issued e-mail addresses, we agree with that differentiation and with OOR’s


    5
      A preponderance of evidence is such proof as leads the fact finder to find that the existence
of a contested fact is more probable than its nonexistence. Pa. State Troopers Ass’n v. Scolforo,
18 A.3d 435, 439 (Pa. Cmwlth. 2011).



                                                3
determination that the former type of e-mail addresses should be protected from
disclosure and the latter should be subject to disclosure.
              In Office of Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth.
2013), the requester, in pertinent part, sought all of the agency-issued e-mail
addresses for the Lieutenant Governor.             The Office of Lieutenant Governor
provided the government-issued email addresses that were held out to the public as
e-mail addresses where the individuals could be contacted, but denied the request
to the extent that it sought additional personal e-mail addresses used to
communicate with other agency officials. On appeal, the OOR granted access to
all of the agency-issued e-mail addresses for the Lieutenant Governor. This Court
determined on further appeal, however, that the government-issued, “personal” e-
mail address for the Lieutenant Governor fell within the personal identification
information exemption. In that regard, we held as follows:
                     While the secondary e-mail address in question is
              used to conduct agency business, it still falls within
              Section 708(b)(6)(i)(A) of the RTKL’s exemption of “a
              record containing all or part of a person’s . . . personal e-
              mail address” because, even though it is being used to
              transact public business, nonetheless, it is still personal to
              that person.
Id. at 133. See also Office of the Governor v. Raffle, 65 A.3d 1105, 1111 (Pa.
Cmwlth. 2013) (holding that Governor’s Office was not required to disclose
agency-issued cellular or personal telephone numbers for thirty-nine employees
because “the fact that government business may be discussed over an employee’s
government-issued personal cellular telephone does not make that telephone any
less ‘personal’ within the meaning of the RTKL”).6

    6
      In addition, in Department of Public Welfare v. Clofine, (Pa. Cmwlth., No. 706 C.D. 2013,
filed February 20, 2014), appeal denied, 99 A.3d 927 (Pa. 2014), this Court held that agency-
(Footnote continued on next page…)


                                              4
              In differentiating between the different e-mail addresses at issue for
the Lieutenant Governor in Mohn, we considered how we have previously defined
the term “personal identification information.” In that regard, although there is no
definition in the RTKL for “personal identification information,” this Court has
defined it as follows:
                     [I]nformation that is unique to a particular
              individual or which may be used to identify or isolate an
              individual from the general population. It is information
              which is specific to the individual, not shared in common
              with others; that which makes the individual
              distinguishable from another.
Mohn, 67 A.3d at 133 (quoting Schaefer, 45 A.3d at 1153).
              Accordingly, as evidenced by our recent decisions interpreting what
constitutes personal identification information and whether certain information
should be exempted from disclosure, the fact that an agency has issued a cellular
phone, a land-line telephone number, or an e-mail address does not necessarily
mean that identifying information related thereto is automatically subject to
disclosure. In addition, the fact that a device is being used to conduct business
does not guarantee that identifying information related thereto is subject to
disclosure. In other words, the agency’s issuance and the individual’s use are not

_____________________________
(continued…)
issued direct-dial telephone numbers and e-mail addresses for Adams County Assistance Office
income maintenance caseworkers were protected from disclosure under Section 708(b)(6)(i)(A)
of the RTKL because they met the definition of “personal identification information” as
previously interpreted by this Court. Specifically, we held that, regardless of whether the
agency-issued e-mail addresses or phone numbers at issue were used to conduct agency business,
the requested data constituted “information that is unique to a particular individual,”
“information which may be used to identify or isolate an individual from the general
population,” or “information which is specific to the individual, not shared in common with
others; that which makes the individual distinguishable from another.” Id., slip op. at 6-7.



                                              5
solely determinative of whether the related identifying information should be
subject to disclosure.
              Finally, our result is consistent with the edict that exemptions from
disclosure must be narrowly construed due to the RTKL’s remedial nature. See
Van Osdol, 40 A.3d at 215. In any event, as we held in Mohn regarding the non-
disclosure of the secondary e-mail address therein at issue: “[O]ther than the
identification of the e-mail address in question, a requester would [still] clearly
have the ability to request e-mails from that account under the RTKL, provided
that [the e-mails] were not exempt from disclosure.”7 67 A.3d at 134.
              Accordingly, we affirm.




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Senior Judge




    7
       In addition, in order for an e-mail from a government e-mail account to be a public record
and potentially subject to disclosure, it would have to, inter alia, “document a ‘transaction or
activity of the agency[.]’” Pa. Office of Attorney Gen. v. The Phila. Inquirer, 127 A.3d 57, 62
(Pa. Cmwlth. 2015).



                                               6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State System of            :
Higher Education,                       :
                        Petitioner      :
                                        :
                  v.                    :   No. 1203 C.D. 2015
                                        :
The Fairness Center,                    :
                        Respondent      :


                                     ORDER


            AND NOW, this 30th day of March, 2016, the final determination of
the Office of Open Records is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
