As discussed in Michael G. Crotty’s previous article, Right to Know Clearinghouses for Personal Information No More: Supreme Court Declares Constitutional Right to Informational Privacy for School Teachers, the Pennsylvania Supreme Court recently handed down a landmark decision in Pennsylvania State Education Association v. Commonwealth et al. concerning public school teachers’ constitutional right to informational privacy. In the context of a challenge to the Right to Know Law (“RTKL”), the Supreme Court found that public school employees’ constitutional right to keep their home addresses private outweighed the benefits of having such information disclosed to the public. However, in addition to addressing privacy rights, the Court also addressed another RTKL issue – the Commonwealth Court’s earlier, insightful holding that procedural due process must be afforded to those public school employees whose information has been requested in a Right to Know request. Although the Court held that the question was moot, is discussion of due process is informative for townships, boroughs and other municipal employees with regard to how future challenges to the RTKL might be processed at the local level.
In general, the RTKL was designed to provide broad access to information concerning the dealings of the state and local governments. First enacted as the Right to Know Act in 1957, the law codified the common law right to inspect public records by establishing procedures by which citizens could request records from the government agencies. That scheme was overhauled in 2008, with the Legislature creating a presumption of documents being public records and flipping the burden of establishing otherwise onto the responding agency. Despite the amendments, the RTKL leaves open how an agency open records officer is to respond to requests for documents involving personal information of employees, contractors, or other third parties.
The Commonwealth Court was given the opportunity to inspect the law after school districts across Pennsylvania received a barrage of wholesale requests for personal information of all of their teachers and faculty. Prompted into action, the Pennsylvania State Education Association, a union representing public school teachers in the Commonwealth, challenged the RTKL in 2009 and obtained a preliminary injunction on the basis that the practice violated employees’ constitutionally protected right to informational privacy in response to such requests. The case was subsequently appealed to the Pennsylvania Supreme Court where it was remanded back to the Commonwealth for, among other things, a review of procedural due process under the RTKL.
On its face, the RTKL provides the Office of Open Records (“OOR”) with discretionary power to adopt regulations necessary for the agency to implement the act and govern appeals from agency decisions. However, in practice, the OOR has not done so, instead referring the task to local agencies. As a result, local agencies, such as the approximately 500 school districts statewide, are left to adopt individualized notice policies provide notice to affected employees or other third parties whose information has been requested. In turn, should an appeal be taken from a local agency’s decision to disclose or not disclose employee information, the OOR may not permit the affected employee to participate in the appeal process. In sum, a fractured, decentralized process was created in the void of clear guidelines from the Legislature or OOR.
The Commonwealth Court found the above-described practices deprived affected public school employees of procedural due process because they were not given adequate notice or opportunity to defend themselves. Although it held that the issue was moot, the Supreme Court agreed with the Commonwealth Court’s sentiment and rebuked the OOR for failing to exercise its statutory power to provide appropriate guidelines. Finding that the OOR would be the office to promulgate regulations to address “the almost complete lack of procedural due process for individuals whose personal information is subject to disclosure under the RTKL . . . ,” the Court perceived only limited efforts by the OOR in this regard. Rather, the Court found that the OOR had essentially punted the weighty and thorny issue to local agencies, who the OOR believed to be individually responsible to promulgate procedures to provide notice. Not appropriate says the Court: “[a]lthough the issue is mooted in this case, we reiterate to the OOR, and to the General Assembly, our previously expressed concerns regarding the disjointed and scant procedural protections at both the request and appeal stages of the RTKL. Given the breadth of the disclosure anticipated by the RTKL and the public’s demonstrated appetite for information from and about the government, we wait for the inevitable next case to rule definitively on the procedural challenges.”
The Court’s brief review of procedural due process under the RTKL is informative for a number of reasons. Primarily, the Court’s review tells us that should a challenge be brought in the future, the Court has signaled that the RTKL would likely not provide government employees with sufficient due process. It also provides local agencies with a glimpse into who the Court thinks should be establishing procedures to insure due process is provided. For instance, the Court explicitly stated that the OOR would be the agency to provide such procedures and went on to detail the negative effects of the current system in which local agencies institute their own, individualized procedures. Taken together with the its challenge to the General Assembly and OOR to fix the RTKL, the Court clearly believes due process procedures should be provided by a centralized, singular agency.
Michael G. Crotty, Esquire is a partner with Siana Bellwoar. He is dedicated to serving the needs of municipalities throughout the Commonwealth. Mr. Crotty enjoys the experience of effectively and zealously representing municipal clients in the areas of Right to Know Law compliance, administration and management, labor and employment, land use and zoning, regulatory compliance, risk management, ordinance drafting, and civil rights claims.