            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


State Employees’ Retirement System,            :
                  Petitioner                   :
                                               :
               v.                              :
                                               :
Simon Campbell,                                :    No. 871 C.D. 2016
                       Respondent              :    Submitted: October 7, 2016


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION BY
JUDGE COSGROVE                                      FILED: March 3, 2017


               The State Employees’ Retirement System (SERS) petitions for review
of the Final Determination of the Office of Open Records (OOR) which granted a
Right to Know Law 1 (RTKL) request filed by Simon Campbell (Campbell)
requesting access to home addresses of SERS members. Upon review, we vacate
and remand.

               On February 22, 2016, Campbell filed a RTKL request with SERS
seeking the following records: a copy of the RTKL request submitted to SERS by
Kenneth Fultz (Fultz) on September 12, 2013; a copy of all records that
Commonwealth Court ordered to be released to Fultz in response to Fultz’s
September 12, 2013 RTKL request; and a copy of the names and addresses of all
retired SERS members Campbell identified as “European expat retirees,” which he
defined as those “whose home or mailing address is listed inside SERS
      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
computerized databases as being in France, Germany, Italy, Spain, the UK,
Belgium, Sweden, or the Netherlands.” (Reproduced Record (R.R.) at 3a.) On
February 29, 2016, SERS issued a timely interim response, notifying Campbell it
would require an additional 30 days to provide a final response. On March 30,
2016, SERS issued a timely final response granting in part and denying in part his
request.

              SERS’ final response granted access to a redacted copy of Fultz’s
RTKL request and all of the names of the “European expat retirees.” SERS denied
access to portions of Fultz’s RTKL request, redacting Fultz’s personal telephone
number and personal email address based on the RTKL’s exemption for personal
identification information.      SERS denied access to the home addresses of all
“European expat retirees” and Fultz based on the unsettled state of the law
regarding the release of home addresses and the disposition of Pennsylvania State
Education Association v. Office of Open Records, 148 A.3d 142 (Pa. 2016) (PSEA
III), which was pending at that time before the Pennsylvania Supreme Court. On
March 31, 2016, Campbell appealed SERS’ Final Response to the OOR,
challenging only the denial of access to the home addresses of Fultz and the
“European expat retirees.” In the Final Determination, the OOR granted access to
all home addresses requested by Campbell.                   SERS filed a Petition for
Reconsideration which the OOR denied on May 31, 2016. SERS appealed to this
court.2

       2
         The standard of review in these matters is de novo and its scope of review is broad or
plenary when it hears appeals from determinations made by appeal officers under the RTKL.
Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). As to factual disputes, this
Court may exercise functions of a fact finder, and has the discretion to rely upon the record
created below or to create its own. Department of Labor and Industry v. Heltzel, 90 A.3d 823,
828 (Pa. Cmwlth. 2014).


                                                2
             In ordering release of the requested home addresses, the OOR relied
heavily on Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003), Office of the
Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013), and Office of the
Governor v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013). In Duncan, our Supreme
Court held a criminal defendant’s name and address were entitled to no
constitutional protection because, in a day and age where people regularly disclose
their names and addresses to public and private entities thus making that
information readily available to the public, there can be no reasonable expectation
of privacy in that information. Duncan, 817 A.2d at 466. In Mohn, this Court
cited Duncan when concluding that “any expectation of privacy that an individual
may have in his or her home address information is not objectively reasonable in
modern society.” Mohn, 67 A.3d at 132. Further, this Court explicitly held there
was no constitutional right to privacy in one’s home address under the
Pennsylvania Constitution that would preclude the release of home addresses. Id.
at 130. In Raffle, this Court found the OOR did not err in directing the release of
the address of then-Governor Tom Corbett’s residence in Shaler Township and the
counties of residence and full names of 39 employees of the Office of the
Governor because there was no reasonable expectation of privacy in that
information. Raffle, 65 A.3d at 1109-1110. Likewise, the OOR stated that neither
SERS nor the direct interest participants established that the requested personal
addresses are protected by the constitutional right to privacy. (R.R. at 99a.)

             SERS argues the home addresses of SERS members are not public
records and are exempt from disclosure by a Hold Order issued by the
Pennsylvania Supreme Court in State Employees’ Retirement System v.
Pennsylvanians For Union Reform, (Pa. No. 344 MAL 2015, filed September 9,


                                           3
2015). Resolution of that case was held pending a decision in PSEA III, which, as
noted above, was issued on October 18, 2016.

             In PSEA III, the Supreme Court was asked to consider whether school
districts must disclose the home addresses of public school employees. In its
analysis of whether a constitutional right to privacy existed in such information,
the Court noted that on three occasions it ruled such information implicated this
right to privacy under Article 1, Section 1 of the Pennsylvania Constitution, and a
balancing test was required to determine whether the right to privacy outweighed
the public’s interest in dissemination. PSEA III, 148 A.3d 142, 144. The Court
distinguished its decision in Duncan, stating that an analysis of that case proceeded
under Article 1, Section 8 of the Pennsylvania Constitution due to the “distinctly
different” privacy interests of an individual subject to a criminal investigation. Id.
at 157.    Because both Mohn and Raffle relied on Duncan in holding no
constitutional right to privacy existed in one’s home address, the Supreme Court
explicitly disapproved those decisions. Id. at n. 9.

             After concluding that the public school employees represented by
PSEA had constitutionally protected privacy interests in their home addresses, the
Supreme Court performed a balancing test, weighing those constitutional rights
with the public interest favoring disclosure. PSEA III, 148 A.3d at 158. The OOR
identified no public benefit or interest in disclosure of the addresses, and the
Supreme Court perceived none in disclosing the information, noting:

      “[N]othing in the RTKL suggests 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. While the goal of the legislature to make
      more, rather than less, information available to public scrutiny is
                                           4
      laudable, the constitutional rights of the citizens of this
      Commonwealth to be left alone remains a significant countervailing
      force.”

Id.

               OOR’s Final Determination was issued on May 2, 2016, well prior to
the Supreme Court issuing its opinion in PSEA III. The Supreme Court held in
PSEA III that the right to informational privacy guaranteed by Article 1, Section 1
of the Pennsylvania Constitution may not be violated unless outweighed by a
public interest favoring disclosure. Therefore, the OOR may not order disclosure
of the addresses of Fultz and the “European expat retirees” unless it has first
applied the balancing test and found the presence of a public benefit or interest
served by disclosure which outweighs the privacy interests of those whose
addresses would be revealed. PSEA III established there is a constitutional right to
privacy in one’s home address in connection with RTKL requests and that
information will not be disclosed unless there is a countervailing public interest to
be served by the disclosure. Accordingly, this Court vacates the decision of the
OOR and remands this matter to that office to perform the balancing test required
by PSEA III.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                           5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


State Employees’ Retirement System,        :
                  Petitioner               :
                                           :
           v.                              :
                                           :
Simon Campbell,                            :   No. 871 C.D. 2016
                  Respondent               :


                                   ORDER


           AND NOW, this 3rd day of March, 2017, the decision of the Office of
Open Records is vacated and remanded for proceedings consistent with the
accompanying opinion.
           Jurisdiction is relinquished.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge
