In two separate but similar Right-to-Know Law cases, a split en banc Commonwealth Court ruled that middle names and home addresses are public record, but government-issued cellphone numbers and email addresses are not.
In Office of the Governor v. Raffle, the court unanimously ruled in the result and reversed a final determination by the state Office of Open Records that had granted access to all agency-issued cellphone and personal telephone numbers of 39 employees of Governor Tom Corbett’s office.
The court was split 6-1, however, in its decision to uphold the portion of the OOR’s final determination that had called for the disclosure of Corbett’s Shaler Township, Pa., home address as well as the counties of residence and full names of the 39 Corbett employees.
In Office of the Lieutenant Governor v. Mohn, meanwhile, the court ruled 5-2 to reverse the OOR’s final determination requiring disclosure of agency-issued email addresses for Lieutenant Governor Jim Cawley and two staffers.
The court was also split 6-1 in its ruling upholding the OOR’s final determination requiring disclosure of the home address of one of Cawley’s staffers.
Counsel for the plaintiffs, Craig J. Staudenmaier of Nauman, Smith, Shissler & Hall in Harrisburg, said the rulings were the Commonwealth Court’s "broadest statement yet" with regard to home addresses being public record, but called the portions of the decisions exempting government-issued email addresses and phone numbers "disturbing."
"Whenever you allow the government to operate in some manner that the public does not have access to, you invite abuse," Staudenmaier said. "I have never seen hidden access or hidden ability used to the public’s good."
Office of the Lieutenant Governor v. Mohn
In Mohn, according to President Judge Dan Pellegrini’s majority opinion, Daniel Mohn submitted an RTKL request to the Office of the Lieutenant Governor seeking all agency-issued email addresses for Cawley and two Board of Pardons’ employees, as well as all agency-issued telephone numbers for an office employee and the home addresses of Cawley and an OLG employee.
The OLG provided Mohn with those email addresses that were already publicly available as contact addresses for some employees, but denied the request with regard to agency-issued email addresses that were only used internally, according to Pellegrini.
The OLG refused to disclose the home address of the OLG employee, citing the personal security and personal identification information exceptions to the RTKL, but granted an additional portion of Mohn’s request that had sought access to the OLG’s responses to another person’s prior RTKL requests, according to Pellegrini.
The OLG noted that some of the information it had denied Mohn was contained in those prior responses and was therefore being disclosed "’outside of the RTKL,’" Pellegrini said.
Mohn appealed to the OOR, which granted access to the OLG employee’s home address, finding that there is no expectation of privacy with regard to home addresses and that the disclosure of home addresses does not meet the "’heightened standard’" required for coverage under the RTKL’s personal security exemption, according to Pellegrini.
The OOR also granted Mohn access to all of Cawley’s agency-issued email addresses, finding that because emails created by public officials in their official capacity and for the purpose of furthering agency business are public, email addresses used to conduct agency business must also be public, Pellegrini said.
According to Pellegrini, the OOR reasoned that if the legislature had intended to exempt such email addresses from disclosure, it would have specifically mentioned "employee email addresses" rather than "personal email addresses" in the RTKL.
While Pellegrini upheld the OOR’s determinations with regard to the OLG employee’s home address, he disagreed with the OOR about the disclosure of agency-issued email addresses, citing the Commonwealth Court’s 2012 ruling in City of Philadelphia v. Philadelphia Inquirer, in which it held that the daily governmental schedules of Mayor Michael A. Nutter and the city council members were exempt under the RTKL because they were for the officials’ own personal use.
Pellegrini said the court in that case found that the word "personal" in the RTKL does not only refer to information related to an official’s personal affairs, but also refers to those records that are "personal" to the official in carrying out his or her daily duties.
"While the secondary email 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 email address’ because, even though it is being used to transact public business, nonetheless, it is still personal to that person," Pellegrini said. "We note that other than the identification of the email address in question, a requester would clearly have the ability to request emails from that account under the RTKL, provided that they were not exempt from disclosure."
Pellegrini was joined in the result with regard to the email addresses by Judges Bonnie Brigance Leadbetter, Renee Cohn Jubelirer, Patricia A. McCullough and Anne E. Covey.
Judge Mary Hannah Leavitt, joined by Judge Robert Simpson, filed a concurring and dissenting opinion, in which she disagreed with regard to the majority’s ruling on agency-issued email addresses, saying she did not believe they were "’personal’" under the RTKL.
Leavitt noted that while her dissent with regard to the requested email addresses may appear incongruous with her position on government-issued cellphone numbers in Raffle, there is a distinct difference between the two forms of communication.
"The government email stays with the government, and it cannot be used by the employee after he leaves government service," Leavitt said. "That is not the case with a personal cellphone number that may have been established before the employee entered government and can follow that employee into retirement from government service."
McCullough, meanwhile, dissented with regard to the OLG employee’s home address, saying the case should be remanded to the OOR to give the employee the opportunity to try to prove that the disclosure of his or her address would pose a "’substantial and demonstrative risk.’"
Jubelirer penned a concurring opinion, noting that while she was constrained to side with the majority with regard to the employee’s address in this case, there may be circumstances in other cases where subjects of an RTKL request could show that they have a subjective right to privacy or fall under the personal security exemption.
"I respectfully believe that it is too soon to ring the death knell of the right to privacy protected by the Pennsylvania Constitution and to sweepingly declare that under no circumstances could any individual prove such a right in his or her home address," Jubelirer said.
Office of the Governor v. Raffle
In Raffle, according to Pellegrini’s majority opinion, Andy Raffle submitted an RTKL request to Corbett’s office for the address of Corbett’s Shaler Township home, along with "the full name, county of residence and government-issued telephone numbers of 56 office employees."
The office denied the request for Corbett’s address on the grounds that it would have required the agency to "’make a legal determination as to whether such address constituted the "domicile" of the governor,’" according to Pellegrini.
The office also denied the request for the employees’ counties of residence, stating that granting access to that information "’would be reasonably likely to result in a substantial and demonstrable risk to the personal security of the employees … including identity theft,’" according to Pellegrini.
In addition, the office denied Raffle’s request for the employees’ middle names, citing the personal security exception under the RTKL, Pellegrini said.
The office did grant Raffle’s request for the employees’ agency-issued landline telephone numbers but denied his request for the cellphone numbers, saying disclosure would violate the RTKL’s personal identification information and personal security exceptions, according to Pellegrini.
Raffle appealed to the OOR, which ordered that all the requested records be disclosed, Pellegrini said.
With regard to the employees’ middle names, the OOR said middle names are not reasonably likely to result in fraud or identity theft, according to Pellegrini.
In granting Raffle’s request for agency-issued cellphone numbers, the OOR said agency-issued phone numbers used to conduct agency business must be considered public records, Pellegrini said.
On appeal to the Commonwealth Court, Pellegrini adopted Mohn’s reasoning to determine that Corbett’s address is public record.
Pellegrini said the same rationale applies to employees’ middle names.
But Pellegrini also relied on Mohn to determine that agency-issued cellphone numbers are not public record, saying "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."
"Based on that reasoning and the absence of any indication in the statute that the personal identification information exception does not apply to government-issued personal or cellular telephone numbers, those numbers are not subject to disclosure," Pellegrini said.
In Raffle, Pellegrini was joined by Leadbetter, Jubelirer, Simpson, Leavitt, McCullough and Covey with regard to the cellphone numbers.
Jubelirer filed a concurring opinion reiterating her concerns from Mohn about the disclosure of addresses.
McCullough filed a concurring and dissenting opinion, arguing, as she did in Mohn, that the RTKL’s personal security exception extends to home addresses.
A spokesman for the Office of General Counsel could not be reached for comment.
(Copies of the 39-page opinion in Office of the Lieutenant Governor v. Mohn, PICS No. 13-1008, and the 16-page opinion in Office of the Governor v. Raffle, PICS No. 13-1019, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •