A recent decision from the Office of Open Records relied on the right to privacy in the Pennsylvania Constitution, as opposed to an exemption in the RTKL, as a basis to prevent the disclosure of certain personal information. In Petusky v. Girardville Area Municipal Authority, OOR Docket No. AP 2019-0931 (Aug. 26, 2019), the OOR relied not on an exemption in the RTKL, but on the right to privacy in the Pennsylvania Constitution as a basis to prevent the disclosure of the home address and related personal information of a board member of the municipal authority involved.
Brief Overview of Case:
The requester in this case made a request pursuant to the RTKL for records regarding sewer inspections. Although the Authority granted the request, it redacted certain personal information about a board member. This appeal followed and the OOR granted in part and denied in part the appeal.
The challenged redactions involved the home address and other personal identification information related to the payments for sewer inspections that were performed by a member of the Authority’s board.
Important Legal Principles Recited:
This OOR decision recited several basic principles of the RTKL, such as the presumption that records in the possession of a local agency are presumed public unless specifically exempt by the RTKL, or other law, or protected by a privilege, judicial order or a decree. See 65 P.S. § 67.305.
Section 708 of the RTKL places the burden of proof on the public body to demonstrate a record is exempt.
Section 708(b)(6) of the RTKL exempts from disclosure certain “personal identification information” which includes all or part of a social security number, driver’s license number, personal financial information, home, cell or personal telephone numbers, personal email addresses, employee number or other confidential personal identification. See 65 P.S. § 67.708(b)(6)(i)(A).
Importantly, home addresses are not specifically exempt pursuant to Section 708(b)(6), but the OOR found in this ruling that home addresses are protected by the Pennsylvania Constitution’s right to privacy.
Right to Privacy:
The Pennsylvania Supreme Court held that an individual possesses a constitutional right to privacy in certain types of personal information. See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).
When a request for records implicates personal information not expressly exempt from disclosure under the RTKL, the OOR must “balance the individual’s interest in informational privacy with the public’s interest in disclosure and may release the personal information only when the public benefit outweighs the privacy interest.” Id.
The Pennsylvania Supreme Court recognized that “certain types of information, including home addresses, by their very nature, implicate privacy concerns and require balancing. Id. at 156-157.
Conversely, however, that there is no right to privacy regarding addresses of businesses or commercial entities. See Butler v. Pennsylvanian for Union Reform, 172 A.3d 1173, 1184-85 (Pa. Commw. Ct. 2017) (“The constitutional right to informational privacy only inures to individuals”).