Gina Swoboda & Voter Reference Found., LLC v. Pa. Dep't of State

304 A.3d 105

Gina SWOBODA and Voter Reference Foundation, LLC, Petitioners v. PENNSYLVANIA DEPARTMENT OF STATE (OFFICE OF OPEN RECORDS), Respondent

No. 857 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued April 5, 2023

Decided October 20, 2023

Edward D. Greim, Kansas City, MO, and Charles O. Beckley, II, Harrisburg, for Petitioners.

Jason E. McMurry, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE McCULLOUGH

Gina Swoboda and Voter Reference Foundation, LLC (collectively, Petitioners) petition for review of the July 15, 2022 Final Determination of the Office of Open Records (OOR), which affirmed the Pennsylvania Department of State's (Department) denial of Petitioners’ request for records sought pursuant to the Right-to-Know Law ¹ (RTKL) (Request). Upon review, we affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant facts of this appeal are not in dispute. On March 7, 2022, Petitioners submitted the Request to the Department seeking a copy of the Full Voter Export List (List), otherwise known as the public information list, which includes all the data in the public information lists compiled pursuant to Section 1404 of the Pennsylvania Voter Registration Act (Voter Registration Act), ² for all counties in Pennsylvania.

(Reproduced Record (R.R.) at 4A-5A.) The List includes the following information of registered Pennsylvania voters: voter identification number, name, sex, date of birth, date registered, voter status, date status last changed, party, residential address, mailing address, polling place, date last voted, all districts in which the voter votes, voter history, and the date the voter's record was last changed. (R.R. at 6A.) As set forth in the Request, Petitioners did not utilize the Pennsylvania voter services website ³ to obtain the List because the Department requires all requesters to sign an affirmation under penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsifications to authorities by signing the request form) prior to its release of any records (Affirmation). The Affirmation states:

I affirm that any information obtained from the records requested from the [Department] will not be used for commercial or other purposes, except purposes related to elections, political activities and law enforcement, as required by 25 Pa.C.S. [§§ ]1207(b) & 1404(c)(2). I further affirm that I will not publish any of the above lists on the Internet, as such publication is prohibited by 4 Pa. Code [§§ ]183.13(g) & 183.14(k).

I verify that this statement is true and correct. I understand that false statements made are subject to the penalties of 18 Pa.C.S. [§ ]4904, relating to unsworn falsification to authorities.

By submitting this form[,] I understand that I am entering into an electronic transaction with the [Department] as defined under [Section 301(b) of the Uniform Electronic Transactions Act, Act of December 16, 1999, P.L. 971,] 73 P.S. [§ ]2260.301(b). By entering my name below[,] I am submitting my signature electronically, which I recognize has the full legal effect and enforceability as a "wet" signature under 73 P.S. [§ ]2260.301.

(R.R. at 7A.) Petitioners stated in the Request that it was submitted outside of the voter services website "because [Petitioners] cannot agree to certain statements in the ‘Affirmation’ required by the website." Id. Petitioners further stated that while they agree to the access restrictions of the List as required by Pennsylvania law, specifically that the List would only be used for purposes related to elections, political activities, and law enforcement, they disagree with the Department's regulation that prohibits publishing the List on the Internet. Id. As Petitioners noted in the Request, the same information sought is also available through the voter services website. Id.

On March 14, 2022, the Department notified Petitioners that a 30-day extension was necessary to respond to the Request. (R.R. at 12A-13A.) Thereafter, on April 13, 2022, the Department denied the Request. (R.R. at 14A-15A.) The Department stated that "[u]nder [S]ections 306 and 3101.1 of the RTKL, [ 65 P.S. §§ 67.306, 67.3101.1,] if another law addresses the public nature of a record or the manner of access to a record, the provisions of the other law prevail over the RTKL." (R.R. at 3A, 14A.) The Department stated that access to the List was governed by both the Voter Registration Act and Section 183.14 of the Department's regulations, 4 Pa. Code § 183.14, and that "records relating to voters, known as public information lists, are only available upon completion of an affirmation that the information will only be used for purposes relating to elections, political activities, and law enforcement." (R.R. at 3A, 15A.) Section 183.14(k) of the Department's regulations provides, in pertinent part, that "[t]he [public information] list cannot be published on the Internet." 4 Pa. Code § 183.14(k). The Department further stated that the Request could not be granted because, in a previous request, Petitioners were granted access to the List but violated the Affirmation by publishing the information on the Internet. Id. Petitioners noted in the Request that they would not sign the required Affirmation prohibiting recipients from publishing the voter lists on the Internet. ⁴ (R.R. at 7A.)

On May 4, 2022, Petitioners appealed the Department's decision to the OOR, challenging the Department's legal authority to control access to the List and claiming that the Department's regulations infringed on their right to political speech under the First Amendment of the United States Constitution. (R.R. at 16A-28A.) The OOR invited the parties to supplement the record. (R.R. at 42A.) On May 25, 2022, the Department timely submitted a statement in opposition arguing that Petitioners’ appeal should be dismissed because access to the List is governed by the Voter Registration Act ⁵ and the Department's regulations, and that Petitioners’ First Amendment arguments were outside the OOR's jurisdiction and should not be considered. (R.R. at 33A-36A.) Additionally, the Department submitted two attestations made under the penalty of perjury from Janelle Hawthorne, the Department's Open Records Officer, and Jonathan Marks, the Department's Deputy Secretary for Elections and Commissions. ⁶ (R.R. at 29A-32A.) Both Ms. Hawthorne and Deputy Secretary Marks attested that the information Petitioners sought under the RTKL was also available through the voter services website. (R.R. at 29A, 32A.) In her attestation, Ms. Hawthorne attested that she denied the Request for failure to abide by the Department's regulations regarding the publication of the List on the Internet. (R.R. at 31A-32A.) In his attestation, Deputy Secretary Marks attested that the Voter Registration Act empowered the Department to establish regulations for access to the List and the Department's regulations expressly prohibit the List to be published on the Internet. (R.R. at 29A-30A.) He explained the purposes for which voter records are conditionally made available to the public and their unique nature. (R.R. at 30A.) He further acknowledged that the Voter Registration Act directs the Department to promulgate regulations concerning access to the List, which "regulations are vital to protect the security of the information that the Department is entrusted to safeguard and to ensure that it is not used improperly." Id.

On June 9, 2022, the OOR dismissed Petitioners’ appeal as untimely, to which Petitioners filed a Petition for Reconsideration. (R.R. at 37A-40A.) On June 15, 2022, the OOR found Petitioners’ appeal was timely filed and, therefore, granted Petitioners’ Petition for Reconsideration, vacated its June 9, 2022 Final Determination, and reopened Petitioners’ appeal. (R.R. at 40A.) Subsequently, on July 15, 2022, the OOR issued its Final Determination denying Petitioners’ appeal on the merits. (R.R. at 41A-48A.) The OOR found that the Voter Registration Act and the Department's corresponding regulations comprehensively govern access to the List. The OOR found that

the Department has demonstrated that the [Petitioners] refuse[d] to comply with the provisions of the [Voter Registration Act], which [Petitioners] do[ ] not dispute. Accordingly, while the List may be accessible under certain circumstances, the [Voter Registration] Act supersedes the RTKL with respect to the List and access may only be obtained through the [Voter Registration Act].

(R.R. at 47A.) The OOR concluded that Petitioners failure to abide by these regulations was the proper justification for the Department to deny access to the List. Id. The OOR also found that it was not the proper forum to address Petitioners’ First Amendment arguments. Id.

On August 15, 2022, Petitioners filed a petition for review with this Court.

II. ISSUES

On appeal, ⁷ Petitioners present three issues. First, Petitioners contend that the OOR erred in denying their appeal because, under the RTKL, there is no applicable exemption to prevent the disclosure of the List. Second, Petitioners assert that Pennsylvania law does not prohibit the publishing of registered voter information on the Internet. Third, if such prohibition does exist, Petitioners argue that it violates the First Amendment and/or is preempted by the National Voter Registration Act ⁸ (NVRA). Petitioners ask this Court to reverse the OOR's decision, order the Department to provide the List without Petitioners having to agree to the prohibition of publishing the List on the Internet, and declare that the Department regulations, Sections 183.13(g) and 183.14(k), violate their rights under the First Amendment and are preempted by the NVRA. (...