pennsylvania

OFFICE OF OPEN RECORDS

FINAL DETERMINATION IN THE MATTER OF ANDY RAFFLE, Complainant

v.
OFFICE OF THE GOVERNOR, Respondent

Docket No.: AP 2012-0788

INTRODUCTION Andy Raffle ("Requester") submitted a request (l'Request") to the Office of the Governor ("Office") pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., ("RTKLft), seeking records relating to Office officials and employees. The Request was granted in part, and denied in part to the extent the Request sought records exempt under the RTKL. The Requester timely appealed to the Office of Open Records ("OOR"). For the reasons set forth in this Final

Determination, the appeal is granted and the Office is required to take further action as directed.

FACTUAL BACKGROUND
On May 7, 2012, the Request was filed seeking the full name, county of residence, and agency-issued telephone numbers for fifty-six (56) identified employees, and "the address of the home in Shaler Township, Pennsylvania, that constitutes the domicile of' the Honorable Thomas Corbett, Governor. On May 15, 2012, the Office granted the Request in part, and denied the Request in part. Specifically, the Office denied the Request as to the Governor's home address on the basis that responding would require legal research to determine 1 the Governor's

"domicile." In addition, the Office denied access to the Governor's home address and employee middle names on the basis that that such information was exempt from public disclosure pursuant to the personal security exemption. 65 P.S. § 67.708(b)(l)(ii). access to employees' Finally, the Office denied cellular and direct

county of residence information and agency-issued

telephone numbers pursuant to the personal security exemption and personal identification information exemption. 65 P.S. § 67.708(b)(1)(ii), (6)(i)(A). On May 16, 2012, the Requester timely appealed to the OOR stating the grounds for disclosure. Specifically, the Requester appealed the denial of access to records disclosing the home address of Governor Corbett, as well as the middle names, county of residence and agency-issued telephone numbers for thirty-nine (39) identified employees. LEGAL ANALYSIS The RTKL is "designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling v. OaR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required "to review all information filed relating to the request" and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may

conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non-appealable. Jd.; Giurintano v. Dep't ofGen. Servs., 20 A.3d 613,617 CPa.

Commw. Ct. 2011). Here, while the Requester requested a hearing, the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter.

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The Office is a Commonwealth agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.301. Records in possession of a Commonwealth agency are

presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901. Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such

proof as leads the fact-finder ... than its nonexistence."

to find that the existence of a contested fact is more probable

Pa. State Troopers Ass 'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.

2011) (quoting Dep 't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821,827 (Pa. Commw. Ct. 2010)). 1. The Request does not seek a legal conclusion. As an initial matter, the Office denied the home address of Governor Corbett on the basis that the Request seeks a legal conclusion as to whether Governor Corbett's Shaler Township home is his "domicile." In addition, the Office denied access to Governor Corbett's home

address on the basis that the disclosure of such information would present a substantial and reasonably likely risk of harm to the Governor's physical safety and personal security. The OOR cannot agree that the Request, as written, seeks to have the Office conduct legal research to determine whether Governor Corbett's Shaler Township home is his domicile. Rather, the OOR

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reads the Request to state the Requester's conclusion that Governor Corbett's Shaler Township home is his domicile, and the Requester seeks that address. Accordingly, the Request does not seek a legal conclusion, it merely seeks Governor Corbett's home address in Shaler Township. Thus, the question becomes whether the Office may withhold Governor Corbett's Shaler Township address from public disclosure. 2. Governor Corbett's home address is subject to public disclosure. In its denial, the Office contends that Governor Corbett's home address, other than the Governor's Mansion is exempt from public disclosure pursuant to the physical/personal security exemption, 65 P.S. § 67.708(b)(1)(ii). Specifically, in its initial denial, the Office argues that the very nature of Governor Corbett's position as the Chief Executive Officer of the Commonwealth, as well as his prior position as the Commonwealth's Chief Law Enforcement Officer presents a substantial and demonstrable risk of harm to his physical and personal security. On appeal, however, the Office submitted the affidavit of Eric Avakian, Chief Information Security Officer, attesting that the disclosure of home addresses significantly increases the risk of identity theft and social engineering attacks. The law requires that to withhold a record the Agency must establish that it's release would reasonably like result in "substantial and demonstrable risk" of physical harm to or the personal security of an individual. While the OOR shares the concern regarding the issues raised by the Governor and believes that personal safety is in fact paramount, the Office has failed to submit any evidence to establish that the disclosure of Governor Corbett's home address would reach the heightened standard established in the law that release would present a "substantial and demonstrable" threat of physical harm. The

Avakian affidavit does nomore to protect Governor Corbett's home address from disclosure than it does to protect any other employee of the Commonwealth of Pennsylvania The OOR has

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previously held that home addresses are not protected from disclosure under the Pennsylvania Constitution, Campbell, supra, that more than mere conjecture is needed to meet the "heightened standard" of establishing that the personal security exemption applies, 65 P.S. § 67.708(b)(l)(ii), and that home addresses are specifically not protected under the personal identification

information exemption, 65 P.S. § 67.708(b)(6)(i). See, e.g., Gingrich v. DCNR, OOR Dkt. AP 2011-0126, 2011 PA O.O.R.D. LEXIS 145; see also Marin v. Sec)! of Pa., 41 A.3d 913, 2012 Pa. Commw. LEXIS 104 (2012) C'TT]here is no constitutional right to privacy in one's home address under the Pennsylvania Constitution"); Commonwealth v. Duncan, 817 A.2d 455 (Pa, 2003) (holding that there is no constitutional right of privacy in a home address). While Mr. Avakian attests that the disclosure of home addresses increases the risk of identity theft and social engineering attacks, nothing in his affidavit leads the OOR to conclude that home

addresses should be added to the "Holy Trinity" of personal information, i.e., person's name, social security number and date of birth, that are reasonably likely to result in identity theft and fraud. Consequently, Delaware County v. Schaefer, 40 A.3d 764,2012 Pa, Commw. LEXIS 147 (2012), and Governor's Office v. Purcell, 35 A.3d 811,2011 Pa. Commw. LEXIS 619 (2011) are inapposite. It should be noted that all candidates for public office are required to file records with the Department of State specifying their residence, including street and number. 25 P.S. §§ 2870, 2912. Records filed with the Department of State are public records under the Election Code. 25 P.S. § 2622. Thus, the OOR is not ordering the disclosure of anything that is not already subject to public disclosure. 3. The middle names of Commonwealth employees are subject to public disclosure. The Office also denied access to the middle names of thirty-nine (39) Commonwealth employees on the basis that such information was exempt from public disclosure pursuant to the

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physical/personal

security exemption, 65 P.S. § 67.708(b)(1)(ii). While a person's name is the Court held to be part of the "Holy Trinity" that are

type of information the Commonwealth

reasonably like to result in identity theft and fraud, see Schaefer, supra; Purcell, supra, the OOR does not read these cases for the proposition that as a general rule the disclosure of names alone presents a substantial and demonstrable risk of harm to the physical or personal security of an individuaL Accordingly, the Office is required to provide the full names of the thirty-nine (39) employees identified on appeal.

4. The county of residence of Commonwealth employees is subiect to public disclosure.
The Office further denied access to the county of residence for the above-mentioned employees pursuant to the physical/personal security exemption, 65 P.S. § 67.708(b)(1)(ii). As

set forth above, the Office's evidentiary submission in this matter is insufficient to meet its burden of proof that home addresses are exempt from public disclosure. Accordingly, the Office is required to provide records reflecting the county of residence for the specified Commonwealth employees.

5. Agency-issued cellular and telephone numbers are subject to public disclosure.
Finally, in its denial, and again on appeal, the Office contends that agency-issued cellular and direct landline telephone numbers assigned to Commonwealth employees is exempt from public disclosure as personal identification information. 65 P.S. § 67.708(b)(6)(i)(A). The RTKL exempts from public disclosure "personal identification information" including "cellular or

personal telephone numbersl.]" Id. The Office argues that an agency-issued cellular telephone numbers are exempt from disclosure under the plain language of the RTKL, and that

government-issued

telephone numbers assigned to a specific employee is unique to one person or individually specific to one person, so as to be protected from 6

and are no less 'personal,'

disclosure under the RTKL. According to the Office, the RTKL makes no distinction for how a telephone number is obtainedl.]" The Office's argument ignores the plain language of the RTKL which provides that information which documents a transaction of an agency is a record of the agency, 65 P.S. § 67.102, and that records in the possession of an agency are presumed to be public records unless exempt from disclosure. 65 P.S. § 67.305(a). Exemptions of records from public disclosure are to be narrowly construed. Bowling, supra. The OaR has previously held that government-issued cellular numbers are not exempt from public disclosure. Williams v.

Johnstown, OOR Dkt. AP 2011-0761, 2011 PA O.O.R.D. LEXIS 417. Similarly, agency-issued telephone numbers for public officials to transact agency business cannot be considered anything other than public records. The OaR concludes that the word "personal" in "personal telephone numbers" is not intended to apply to agency-issued telephone numbers assigned to specific public officials and public employees. Rather, the word "personal" is intended to apply to

telephone numbers not used for agency business. Had the General Assembly intended employee telephone numbers to be exempt from public disclosure, it would have specifically stated "employee telephone numbers" instead of "personal telephone numbers." See 65 P.S. §

67.708(b)(6)(i)(A) (exempting "employee numbers" from public disclosure). Therefore, because the Office did not meet its burden of proof that agency-issued employee telephone numbers are not personal e-mail telephone numbers, the Office is required to provide all agency-issued telephone numbers for the thirty-nine (39) identified employees. See also Simmoneau v. DPW, OORDkt. AP 2012-0417,2012 PA O.O.R.D. LEXIS 612. CONCLUSION For the foregoing reasons, Requester's appeal is granted and the Office is required to
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disclose all responsive records within thirty (30) days. This Final Determination is binding

all

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parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Commonwealth Court. 65 P.S. § 67.1301(a). All parties must be served with

notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to
COUlt

rules as per Section 1303 of the RTKL.

This Final Determination shall be

placed on the OOR website at: http://openrecords.state.pa.us.

FINAL DETERMINATION

ISSUED AND MAILED:

June 13,2012

Sent to:

Andy Raffle (via e-mail only) Andrea Bowman, Esq. (via e-mail only) Michael Downing (via e-mail only)

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