PNA Legal Update
Pennsylvania NewsMedia Association

Access to Governor’s calendar

In Office of the Governor v. Scolforo, the Commonwealth Court granted access to the Governor’s calendar, in response to an Associated Press request.

The AP sought access to a series of entries in Governor Corbett’s 2011 calendar. In its response, the Governor’s Office provided some entries but redacted others, citing the predecisional deliberation exemption, section 708(b)(10).

The Commonwealth Court ruled that the Governor’s Office did not meet its burden of proof and must provide the records without redaction. In reaching its decision, the Court said that agencies cannot simply rely on a list of subjects to which internal deliberations may have related.

Rather, any denial must be specific enough to allow the requester or reviewing tribunal to ascertain how disclosure of the entries would reflect internal deliberations on those subjects.

Read more from The Associated Press.

PNA note: The holding in the AP case is positive for public access, but it must be read in light of the Commonwealth Court’s holding in City of Philadelphia v. Philadelphia Inquirer, 52 A.3d 456 (Pa. Cmwlth. 2012).

In the Inquirer opinion, the Commonwealth Court denied access to the mayor’s and city council members’ calendars under section 708(b)(12), the “notes and working papers” exception. The court found the calendars were created solely for the convenience of the mayor’s and city council members’ personal use in scheduling daily activities and were not circulated outside of the officials’ offices. The Governor’s Office did not rely on or raise the working papers exemption in the AP case, but the Court noted its prior holding in the Inquirer case in a footnote. Newspapers should be aware of the conflicting holdings, and when an agency denies access based on the working papers exemption, argue that calendars are not purely personal and are circulated outside the office whenever there is evidence to support such assertions.

No Constitutional right to privacy in home addresses, middle names or counties of residence; secondary email addresses and cell phone numbers may be withheld

In Office of the Lt. Governor v. Mohn, the Commonwealth Court ruled that there is no constitutional right to privacy in home addresses, although it did allow the agency to withhold “secondary, government-issued email addresses.”

Among other things, Mohn had requested the home address of an agency employee and all agency-issued email addresses for the Lieutenant Governor.

After a fairly comprehensive review of Right to Know case law on home addresses and privacy issues, the Court ruled that there is no constitutional right to privacy in one’s home address. Moreover, the Court ruled that the agency did not satisfy its burden of proving that the personal security exemption applied to prevent access, adding that “any expectation of privacy that an individual may have in his or her home address information is not objectively reasonable in modern society.”

In denying access to ‘secondary email addresses,’ the Court found that such an address was a “personal” email address protected by section 708(b)(6), because “even though it is being used to transact public business … it is still personal to that person.”

Judge Dan Pellegrini authored the majority opinion, with Judge Cohn Jubelirer filing a concurring opinion, Judge Leavitt (joined by Judge Simpson) filing a concurring and dissenting opinion, and Judge McCullough filing a concurring and dissenting opinion.

In Office of the Governor v. Raffle, the Commonwealth Court ruled that an address maintained by Governor Corbett in Shaler Township, along with the middle names and counties of residence of 39 office employees, were public.

The Court denied access to government-issued cellular and personal telephone numbers of the employees. In its opinion, the Court cited much of the same reasoning as it did in the Mohn case. Judge Pellegrini authored the majority decision, with Judge Cohn Jubelirer filing a concurring opinion, and Judge McCullough filing a concurring and dissenting opinion.

Read more from the Associated Press.

PNA note: The Commonwealth Court’s holdings with regard to home addresses, counties of residence and middle names are significant victories for public access.

Of course, the holdings on public employees’ secondary email addresses and agency-issued phone numbers are disappointing. Public agencies routinely deny access to home addresses and other address-related information, citing a constitutional right to privacy and personal security arguments.

The Commonwealth Court has now clearly held that there is no constitutional right to privacy in home addresses, and agencies may only withhold home addresses for security reasons when the burden of proof is met on a case-by-case basis.

The Court is currently considering similar constitutional and security arguments as part of the PSEA case in which PSEA is seeking blanket confidentiality for all public school employee home addresses.

Access to legal invoices

Finally, in Levy v. Senate, the Pennsylvania Supreme Court held that client identities and descriptions of services in legal invoices submitted to public agencies are not automatically exempt from public access under the attorney-client privilege. Agencies must evaluate whether the privilege is actually implicated on a case-by-case basis.

The Court also reversed the holding in Signature Information Solutions v. Aston Township, which required an agency to state all grounds for denial in its initial denial letter, or have any issues not raised be waived. The Court remanded the case to the Commonwealth Court for consideration of issues raised by the Senate subsequent to its initial denial. Read more from the Lebanon Daily News. Read the opinion.

PNA note: The Supreme Court’s opinion in this case is a win for public access to legal invoices.

Prior to this decision, agencies routinely refused access to client identity and descriptions of legal services in legal invoices. The holding in the Levy case will require agencies to conduct a careful review of legal invoices and limit redactions to the rare circumstances where disclosure would actually trigger the attorney/client privilege.

A noteworthy, and troubling, aspect of the Levy holding, however, is the Court’s decision to overturn the per se waiver rule of Signature Information Solutions, LLC. v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010), which required an agency to state all grounds for denial in its initial denial letter or have any issues not raised be waived.

[ PaFOIC note: The court's decision appears to leave open the possibility that the waiver can still be argued based on the individual facts of a particular case.]

It remains to be seen how agencies [and lower courts] will apply this aspect of the Levy holding, but the Supreme Court noted the importance of timely and efficient appeals in light of the Law’s intent to improve public access [and included additional positive language regarding the law's intent to encourage disclosure and "transparency.”]

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* In brackets are a few additions to this analysis of the Levy v. Senate ruling from the PaFOIC.