Pa. State Educ. Ass'n v. Commonwealth

110 A.3d 1076

The PENNSYLVANIA STATE EDUCATION ASSOCIATION, By Lynne WILSON, General Counsel, William McGill, F. Darlene Albaugh, Heather Kolanich, Wayne Davenport, Frederick Smith, Jamie McPoyle, Brianna Miller, Valerie Brown, Janet Layton, Korri Brown, Al Reitz, Lisa Lang, Brad Group and Randall Sovisky, Petitioners

v. COMMONWEALTH of Pennsylvania, Department of Community and Economic Development, Office of Open Records, and Terry Mutchler, Executive Director of the Office of Open Records, RespondentsPennsylvania Association of School Retirees, Ureneus V. Kirkwood, John B. Nye, Stephen M. Vak, and Richard Rowland and Simon Campbell, Intervenors.

No. 396 M.D. 2009

Commonwealth Court of Pennsylvania.

Argued Sept. 10, 2014.

Decided Feb. 17, 2015.

Richard E. Burridge and Thomas W. Scott, Harrisburg, for petitioners.

Charles R. Brown, Chief Counsel, Harrisburg, for respondents Office of Open Records and Terry Mutchler.

Emily H. Bensinger, Harrisburg, William W. Warren, Jr., Harrisburg, and W. James Young, Springfield, VA, for intervenors.

BEFORE: DAN PELLEGRINI, President Judge, and BERNARD L. McGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge COHN JUBELIRER.

Presently before this Court for disposition in our original jurisdiction are: (1) the Office of Open Records'¹ (OOR) and the Pennsylvania Association of School Retirees² (PASR) Partial Motion for Summary Judgment as to Counts I, II, and III of Petitioners' First Amended Petition for Review (Amended Petition); (2) OOR's and PASR's Amended Partial Motion for Summary Judgment as to Counts IV and V of the Amended Petition; and (3) Petitioners' Cross Motion for Summary Judgment.³

I. BACKGROUND

A. Proceedings between 2009–2012

This matter has a complicated history. Petitioners filed a Petition for Review in the Nature of a Complaint in Equity for Injunctive Relief (Petition) on July 23, 2009 seeking a judgment, pursuant to the Declaratory Judgments Act,⁴ declaring the home addresses of public school employees to be exempt from disclosure under the Right–to–Know Law⁵ (RTKL) and enjoining the OOR from permitting such disclosure.⁶ Count I of the Petition asserts that the RTKL should be interpreted to protect home addresses from disclosure because any other interpretation would violate a constitutional right to privacy. (Petition ¶¶ 71–85.) The Petition avers that the personal security exception,⁷ the personal information exception,⁸ and the “other laws or decisions” exception⁹ of the RTKL can be interpreted as protecting home addresses from disclosure. (Petition ¶¶ 82–84.) Count II of the Petition seeks, in the alternative, a declaration that any provision of the RTKL that requires disclosure of the home addresses of public school employees violates the constitutional right to privacy emanating from Article 1, Sections 1¹⁰ and 8¹¹ of the Pennsylvania Constitution and is unenforceable. (Petition ¶¶ 87–89.) Count III seeks injunctive relief. (Petition ¶¶ 91–108.)

On July 28, 2009, this Court granted Petitioners' “Application For Relief Seeking A Preliminary Injunction.”¹² On appeal, our Supreme Court affirmed without prejudice to any party's right to appeal this Court's final disposition of this matter. Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, 606 Pa. 638, 2 A.3d 558 (2010) (PSEA I ).

The OOR filed preliminary objections (POs) seeking to have the Petition dismissed for lack of jurisdiction and failure to state a cause of action. On September 24, 2010, this Court sustained the POs and dismissed this case without prejudice, holding that the appropriate defendant in this action is not the OOR but, rather, the school districts that hold the records and personal information sought to be protected from disclosure. Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, 4 A.3d 1156, 1165–66 (Pa.Cmwlth.2010) (PSEA II ) (Pellegrini, J., dissenting; McCullough, J., dissenting). In the absence of a Commonwealth agency as a defendant, this Court held that it lacked jurisdiction. Id. at 1166. On appeal, however, the Supreme Court vacated this Court's decision and remanded for further proceedings. Pennsylvania State Education Association ex rel. Wilson v. Commonwealth, 616 Pa. 491, 50 A.3d 1263 (2012) (PSEA III ) (Castille, C.J., concurring (Baer, J., joined); Todd, J., concurring; Eakin, J., dissenting). The Supreme Court agreed with Petitioners' “central position that the OOR may fairly be regarded as an indispensable party to their efforts to secure a just, timely, and meaningful judicial resolution of their claims.” Id. at 1274–75.

B. Proceedings in 2013–2014

After remand, the parties filed Answers and New Matter to the Petition. On February 25, 2013, the OOR filed a Motion for Summary Judgment and, upon application, PASR joined in OOR's motion. The primary basis for the OOR's Motion for Summary Judgment is this Court's decisions holding that there is no constitutional right to privacy in one's home address under the Pennsylvania Constitution. See Marin v. Secretary of the Commonwealth, 41 A.3d 913, 915 (Pa.Cmwlth.2012) (Per Curiam), aff'd, 620 Pa. 56, 66 A.3d 250 (2013) ; Office of Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa.Cmwlth.2013) (en banc) (Cohn Jubelirer, J., concurring; Leavitt, J., concurring and dissenting (joined by Simpson, J.); McCullough, J., concurring and dissenting); and Office of Governor v. Raffle, 65 A.3d 1105 (Pa.Cmwlth.2013) (en banc) (Cohn Jubelirer, J., concurring; McCullough, J., concurring and dissenting). Petitioners' filed an Answer to the OOR's/PASR's Motion for Summary Judgment.¹³

On May 22, 2013, Petitioners filed a Motion to Amend and the Amended Petition. Petitioners sought leave to amend the Petition to add Counts IV and V. Count IV avers that the RTKL violates the fundamental constitutional right to due process because it does not provide affected individuals with: (1) notice that a request for personal information has been received; (2) an opportunity to be heard; and (3) party status, thereby depriving them of any opportunity to challenge an agency decision to release information through an appeal. (Amended Petition ¶¶ 110–20.) Therefore, Count IV requests “an [o]rder declaring that to the extent the [RTKL] requires the disclosure of the home address of a public school employee without providing procedural due process, ... [the RTKL] is unconstitutional ... and unenforceable.” (Amended Petition, Wherefore Clause, Count IV.)

Count V seeks a declaration that, as currently administered by the OOR, the RTKL is fatally flawed and unenforceable because Section 708(b)(1)(ii) purports to create a personal security exception to the disclosure of personal information without any mechanism to apply that exception to protect an affected individual from harm. (Amended Petition at ¶¶ 122–25.) Count V avers that the OOR has the authority to promulgate regulations that will be binding on agencies and that the OOR has failed to implement or develop some rational mechanism to ensure that individuals have advance notice before the release of their personal data and the opportunity to challenge the release as exempt pursuant to the personal security exception of the RTKL. (Amended Petition ¶¶ 128–31.) Petitioners “request this [C]ourt to enjoin the release of the home addresses of public school employees until the OOR establishes a uniform, structured and consistent mechanism ... to [e]nsure that individuals who may be affected by a release of their personal data” will be afforded procedural due process. (Amended Petition, Wherefore Clause, Count V.)

By order of May 29, 2013, this Court stayed disposition of the OOR's and PASR's Motion for Summary Judgment pending disposition of the Motion to Amend. By Memorandum Opinion and Order filed July 30, 2013, this Court: (1) granted Petitioners' Motion to Amend; (2) ordered that the Amended Petition be accepted for filing; (3) ordered that the OOR's and PASR's Motion for Summary Judgment be treated as a Partial Motion for Summary Judgment as to Counts I, II, and III of the Amended Petition; (4) continued the stay of the disposition of the OOR's and PASR's now Partial Motion for Summary Judgment imposed by this Court's May 29, 2013 Order until further order of this Court; and (5) directed that a responsive pleading to Counts IV and V only of the Amended Petition be filed within 30 days. See Pennsylvania State Education Association ex rel. Wilson v. Commonwealth (Pa.Cmwlth., No. 396 M.D. 2009, filed July 30, 2013) (single judge op.).

Responsive pleadings were filed as ordered. Thereafter, upon application, this Court lifted the stay of the OOR's and PASR's Partial Motion for Summary Judgment as to Counts I, II, and III of the Amended Petition (First Partial Motion). OOR then filed a Partial Motion for Summary Judgment as to Counts IV and V of Petitioners' Amended Petition and later, with leave of this Court, filed an Amended Partial Motion for Summary Judgment (Amended Partial Motion). PASR has joined OOR's Amended Partial Motion. Petitioners have also filed a Cross Motion for Summary Judgment (Cross Motion). Answers to all three motions for summary judgment were filed.

II. PENDING MOTIONS

A. OOR's/PASR's First And Amended Partial Motions

The basis for the OOR's and PASR's First Partial Motion seeking summary judgment as to Counts I, II and III of the Amended Petition is three fold: (1) there is no legal basis for Petitioners' Amended Petition since “there is no constitutional right to privacy in one's home address under the Pennsylvania Constitution,” based upon this Court's decisions in Marin, Mohn, and Raffle; (2) “to the extent that a right to privacy protects a home address from public knowledge, the named Petitioners waived such a right by publishing their home addresses in paragraphs 5–18 of the Petition”; and (3) “to the extent that a...