FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No: AP 2019-0840
:
COLONIAL INTERMEDIATE UNIT 20, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to Colonial Intermediate

Unit 20 (“Unit”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking

payroll records for bus drivers. The Unit partially denied the Request, arguing that the records are

personal financial information and are protected by the constitutional right to privacy. The

Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final

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

FACTUAL BACKGROUND

On April 26, 2019, the Request was filed, seeking “Gross to net payroll records (year to

date only) for all bus drivers in 2015-2018.” On June 1, 2019, following a thirty-day extension to

respond, 65 P.S. § 67.902(b), the Unit partially denied the Request, arguing that the net payroll

records are exempt from disclosure because they are personal financial information, see 65 P.S. §

67.708(b)(6), and are protected by the constitutional right to privacy.

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 On June 3, 2019, the Requester appealed to the OOR, challenging the denial and stating

grounds for disclosure. The OOR invited both parties to supplement the record and directed the

Unit to notify any third parties of their ability to participate in this appeal. 65 P.S. § 67.1101(c).

On June 13, 2019, the Unit submitted a position statement reiterating its grounds for denial.

The Unit claims that net pay does not constitute a public record and discloses personal financial

information that implicates the constitutional right to privacy. The Unit argues that it keeps the

payroll information in confidential personnel files. In support of its position, the Unit submitted

the attestations sworn under penalty of perjury of Dr. Frank DeFelice, the Unit’s Open Records

Officer, Dr. Charlene Brennan, the Unit’s Executive Director, and Susan Schubert, the Unit’s

Management Assistant for Payroll.

The OOR received several Requests to Participate from current and former Unit

employees. However, because the Unit has adequately represented the employees’ interests, the

OOR denies the requests to participate. See 65 P.S. § 67.1101(c)(2)(iii) (permitting an appeals

officer to deny a request to participate in the event that the information is not probative); 65 P.S.

§ 67.1101(a)(2) (“The appeals officer may limit the nature and extent of evidence found to be

cumulative”).

In response to the OOR’s request for clarification, on June 21, 2019, the District provided

the supplemental attestation of Dr. DeFelice. He identified the records that contain the responsive

information as W-2s, 1099s and year-end pay statements. Dr. DeFelice attests that instead of

providing those records, the Unit created a table with the bus drivers’ names and gross pay for the

years in question.

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 LEGAL ANALYSIS

“The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government.” SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law 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. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75

A.3d 453 (Pa. 2013).

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 law also states that an appeals officer may admit into evidence testimony,

evidence and documents that the appeals officer believes to be reasonably probative and relevant

to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id.;

Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing; however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Unit is a local agency subject to the RTKL that is required to disclose public records.

65 P.S. § 67.302. Records in possession of a local 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.

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An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §

67.708(b).

Section 708 of the RTKL 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)(1). Preponderance of the evidence has been defined as “such proof

as leads the fact-finder … to find that the existence of a contested fact is more probable than its

nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)).

As a threshold matter, the Unit argues that an individual’s net pay does not constitute a

public record. The responsive records the Unit identified are W-2s, 1099s, year-end pay statements

and the table it created. Section 102 of the RTKL, 65 P.S. § 67.102, defines “public record,” in

pertinent part, as “[a] record … of a Commonwealth or local agency.” That section also defines

“record” as “[i]nformation, regardless of physical form or characteristic, that documents a

transaction or activity of an agency and that is created, received or retained pursuant to law or in

connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102. Here, the

responsive records document transactions of the agency as they show salaries of public employees.

See 65 P.S. § 67.708(b)(6)(ii). However, W-2s and 1099s are confidential under federal law and

the Requester has disclaimed any interest in these records. Therefore, the only responsive records

at issue in this appeal are the year-end pay statements.

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 The Unit argues that the net pay of an employee is personal financial information calculated

based upon individual considerations such as tax filing status, mandatory and elective deductions

for health care, union dues and retirement contributions. Section 708(b)(6) exempts “[a] record

containing all or part of a person’s … personal financial information…,” but does not prohibit the

release of the “name, position, salary, actual compensation or other payments or

expenses…of…an agency employee.” 65 P.S. §§ 67.708(b)(6)(i)(A),(ii). The Commonwealth

Court has noted:

[T]he General Assembly apparently felt that this exception was necessary to ensure
that wage and salary information for public officials and agency employees was
available to requesters under the RTKL. The language limiting this carve-out
exception to only public officials and agency employees evidences the General
Assembly’s intent, or at the very least recognition, that the personal financial
information exemption in Section 708(b)(6)(i)(A) of the RTKL exempts wage and
wage-related information for individuals who are not public officials or agency
employees.

Dep’t of Conservation & Nat. Res. v. Office of Open Records, 1 A.3d 929, 938 (Pa. Commw.

2010).

The Unit provided the affidavit of Ms. Schubert who attests the “[n]et pay for each

employee is calculated after deductions are made from gross pay that are based upon the

employee’s tax filing status (i.e. single, head of household); health benefits payments; union dues;

retirement contributions.” Dr. DeFelice attests that the year-end pay statements would have to be

redacted “to provide the gross pay information that was provided to the Requester.” Here, the

responsive records, year-end pay statements, show the actual compensation of agency employees.

Further, the Unit has not explained exactly what information is contained in a year-end pay

statement, even after being asked for clarification; rather, the Unit only argues that net pay takes

into account various deductions. The Unit does not explain how disclosing only the net pay would

actually disclose what they allege is the personal financial information.

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 The Unit also argues that net pay implicates the constitutional right to privacy because it is

calculated based upon individual considerations. The Pennsylvania Supreme Court held that

individuals possess a constitutional right to privacy in certain types of personal information, such

as his or her home address. Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142, 2016 Pa.

LEXIS 2337 (Pa. 2016). Even if the OOR were to assume that a privacy interest in an employee’s

net pay exists, “the General Assembly has already performed the necessary PSEA balancing test”

by declaring this information public in Section 708(b)(6)(ii) of the RTKL. Reese v.

Pennsylvanians for Union Reform, 173 A.3d 1143, 1160 (Pa. 2017) (citing PSEA, 148 A.3d at 156

n.8); see also Governor’s Office of Admin v. Campbell, 202 A.3d 890, 894-95 (Pa. Commw. Ct.

2019) (“In performing [the balancing test], we may rely upon, when appropriate, ‘legislative

pronouncements or prior decisions’ of Pennsylvania courts”); Butler Area Sch. Dist. v.

Pennsylvanians for Union Reform, 172 A.3d 1173, 1184 (Pa. Commw. Ct. 2017) (describing

factors to determine whether a privacy interest exists, including whether there is a reasonable

expectation of privacy in that information). Based on the evidence submitted, the Unit has not

shown that there is an expectation of privacy or right to privacy in the net pay information.

Additionally, because the Unit has not explained what other information is contained on

the year-end pay statements, the Unit has not met its burden of proving that any other information

would be personal financial information or that any other information is protected by a

constitutional right to privacy.1 65 P.S. § 67.708(a)(1).

1
The Unit also provides the attestation of Dr. Brennan which indicates that this particular Requester has received and
published information about Unit employees in a public forum; however, “the RTKL must be construed without regard
to the requester’s identity.” DiMartino v. Pa. State Police, No. 340 C.D. 2011, 2011 Pa. Commw. Unpub. LEXIS 787
(Pa. Commw. Ct. 2011); see 65 P.S. § 67.302(b) (“A local agency may not deny a requester access to a public record
due to the intended use of the public record by the requester unless otherwise provided by law”); 65 P.S. § 67.703 (“A
written request need not include any explanation of the requester’s reason for requesting or intended use of the records
unless otherwise required by law”).

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 CONCLUSION

For the foregoing reasons, the appeal is granted, and the Unit is required to provide the

year-end pay statements within 30 days. This Final Determination is binding on all parties. The

Unit shall notify all third parties of the resolution of this appeal. Within thirty days of the mailing

date of this Final Determination, any party may appeal to the Northampton County Court of

Common Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The

OOR also shall be served notice and have an opportunity to respond as per Section 1303 of the

RTKL. 65 P.S. § 67.1303. However, as the quasi-judicial tribunal adjudicating this matter, the

OOR is not a proper party to any appeal and should not be named as a party. 2 This Final

Determination shall be placed on the OOR website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: June 28, 2019

/s/ Erin Burlew

_________________________
APPEALS OFFICER
ERIN BURLEW, ESQ.

Sent to: Tricia Mezzacappa (via email only);

Rebecca Young, Esq. (via email only);
Frank DeFelice (via email only)

2
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).