personal security exception in Pennsylvania

2020Dev., 148 A.3d 142, 144 (Pa. 2016) (holding that this “Court erred in ruling that there is no constitutional right to privacy in one’s home address in connection with RTKL requests,” and that this right “may not be violated unless outweighed by a public interest favoring disclosure”); Purcell, 35 A.2d 814 , 821 (concluding that the “personal security” exemption protected the birthdates of state employees where disclosure would substantially heighten the risk of identity theft and fraud); Times Publ’g Co., Inc., 633 A.2d at 1238 (holding that “public disclosure of [firearms] licensees’ . . . so

2012In Times Publishing Company, Inc. v. Michel, 159 Pa.Cmwlth. 398 , 633 A.2d 1233, 1236 (1993), appeal denied, 538 Pa. 618 , 645 A.2d 1321 (1994), an en banc panel of this Court held that home addresses, telephone and social security numbers contained on applications for licenses to carry firearms were protected by the personal security exception.

2013First, our Court should not reach a constitutional question unless it is specifically raised by the parties. 3 For example, in Young v. Armstrong School District, 21 Pa.Cmwlth. 203 , 344 A.2d 738, 740 (1975), this Court found that the old RTKL did not contain any “clause or provision to protect against the invasion of an individual’s privacy” and distinguished between the personal security exception and a right to privacy.

2013First, our Court should not reach a constitutional question unless it is specifically raised by the parties. 3 For example, in Young v. Armstrong School District, 21 Pa.Cmwlth. 203 , 344 A.2d 738, 740 (1975), this Court found that the old RTKL did not contain any “clause or provision to protect against the invasion of an individual’s privacy” and distinguished between the personal security exception and a right to privacy.

2016However, the State Treasurer represented that the List denotes only employee birth years which, while not in accordance with Section 614 of the Administrative Code, is in accordance with Governor's Office of Administration v. Purcell, 35 A.3d 811 (Pa.Cmwlth.2011), wherein this Court held that the personal security exception to the RTKL exempts employee months and dates of birth from disclosure.

2014In Governor’s Office of Administration v. Purcell, 35 A.3d 811 (Pa.Cmwlth.2011), this Court held that the personal security exception to the RTKL exempts employee months and dates of birth from disclosure.

1993Sheriff Michel further argues that disclosure of the applications is protected by the personal security exception as well. 2 Personal security has been defined as “freedom from barm, danger, fear or anxiety,” Mergenthaler v. State Employes Retirement Board, 33 Pa.Commonwealth Ct. 237, 242, 372 A.2d 944, 947 (1977), confirmed en banc, 33 Pa.Commonwealth Ct. 237, 381 A.2d 1032 (1978); and in Moak v. Philadelphia Newspapers, Inc., 18 Pa.Commonwealth Ct. 599, 336 A.2d 920 (1975), the Court held that disclosure of information must be “intrinsically harmful” to fall within the personal security exce

1993In Mergenthaler v. State Employee’s Retirement Board, 33 Pa.Commonwealth Ct. 237, 372 A.2d 944 (1977), we reviewed our previous decisions in Kanzelmeyer, Moak and Young (cited in majority opinion) and held that the names and addresses of state retirees did not fall within the personal security exception, noting that the records requested cannot be said to place retirees in a state of fear, harm, danger, fear of anxiety, nor are they intrinsically harmful....

2019The personal security exception “embraces two notions: risk of physical harm and the risk to one’s personal security.” Delaware Cty. v. Schaefer, 45 A.3d 1149, 1154 (Pa. Cmwlth. 2012) (en banc); see also Peterson v. Dep’t of Corr.

2013Philadelphia Inquirer, 45 A.3d 1149 (Pa.Cmwlth.2012); see also Governor’s Office of Admin. v. Purcell, 35 A.3d 811 (Pa.Cmwlth.2011) (holding birth dates, as opposed to birth years, exempt from disclosure under Personal Security exception based upon the affidavits supplied).

2025“To establish this exception, an agency must show: (1) a ‘reasonable likelihood’ of (2) ‘substantial and demonstrable risk’ to an individual’s security if the information sought is not protected.” Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 373 (Pa. Cmwlth. 2013) (citation omitted).

2025“To establish this exception, an agency must show: (1) a ‘reasonable likelihood’ of (2) ‘substantial and demonstrable risk’ to an individual’s security if the information sought is not protected.” Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 373 (Pa. Cmwlth. 2013) (citation omitted).

2015We also note that, while this Court’s decisions in Mohn and Raffle were based, in part, on our Supreme Court's decision in the criminal case Commonwealth v. Duncan, 572 Pa. 438 , 817 A.2d 455, 459 (2003), the Supreme Court did not hold in Duncan that an individual would never have a constitutionally protected expectation of privacy in his or her home address.

2015We also note that, while this Court’s decisions in Mohn and Raffle were based, in part, on our Supreme Court's decision in the criminal case Commonwealth v. Duncan, 572 Pa. 438 , 817 A.2d 455, 459 (2003), the Supreme Court did not hold in Duncan that an individual would never have a constitutionally protected expectation of privacy in his or her home address.

2011Dist., 708 A.2d 866, 870 (Pa.Cmwlth.1998) (protecting home addresses, home telephone numbers and Social Security numbers as confidential); Rowland, 885 A.2d at 628 .

2002See Cypress Media, Inc. v. Hazelton Area School District, 708 A.2d 866 (Pa.Cmwlth.1998), appeal dismissed, 555 Pa. 340 , 724 A.2d 347 (1999)(even if applications for teacher positions in school district constituted public records, they would not be disclosed to newspaper because application contained confidential information protected by law from disclosure, i.e., home addresses, social security numbers, college transcripts, physical examination reports and child abuse clearances); Times Publishing Co., Inc. v. Michel, 159 Pa.Cmwlth. 398 , 633 A.2d 1233 (1993), petition for allowance of appeal

2008In doing so, the Supreme Court reiterated that the proper analysis is the balancing test set forth in Sapp Roofing and abrogated this Court’s earlier decision in Moak v. Philadelphia Newspapers, Inc., 18 Pa.Cmwlth. 599 , 336 A.2d 920 (1975), which held that the sole determinative factor under the personal security exception is whether the public records would be intrinsically harmful if disclosed.

2008In doing so, the Supreme Court reiterated that the proper analysis is the balancing test set forth in Sapp Roofing and abrogated this Court’s earlier decision in Moak v. Philadelphia Newspapers, Inc., 18 Pa.Cmwlth. 599 , 336 A.2d 920 (1975), which held that the sole determinative factor under the personal security exception is whether the public records would be intrinsically harmful if disclosed.

2016“There is no language in the current RTKL’s personal security exception that requires the agency to balance personal security interests against the benefits of disclosure.” Id.

2014Importantly, the concurring opinion also acknowledged no constitutional right to privacy in a home address and that the rationale was equally applicable to an employee’s county of residence, wherein it stated: In this case, as in [Office of the Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa.Cmwlth.2013) ], the affidavit purporting to prove that the employee’s county of residence or middle name is exempt from disclosure was not specific enough to meet the personal security exception set forth in Section 708(b)( 1 )(ii) of the RTKL.[ FN ] [FN] Thg affidavit submitted by the Office of the Governor

2025See Pa.R.A.P. 126(b)(1)-(2); Section 414(a) of the Commonwealth Court’s Internal Operating Procedures (IOP), 210 Pa. Code § 69.414 (a). 5 (Id. at 9.) OOR noted that “an agency must show both: (1) a ‘reasonable likelihood’ of (2) ‘substantial and demonstrable risk’ to an individual’s security if the information is not protected . . . [and] substantial and demonstrable [is defined] as actual or real and apparent.” (Id. at 6 (citing Governor’s Off. of Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011), and Governor’s Off. of Admin. v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61, 66 (Pa

2025See Pa.R.A.P. 126(b)(1)-(2); Section 414(a) of the Commonwealth Court’s Internal Operating Procedures (IOP), 210 Pa. Code § 69.414 (a). 5 (Id. at 9.) OOR noted that “an agency must show both: (1) a ‘reasonable likelihood’ of (2) ‘substantial and demonstrable risk’ to an individual’s security if the information is not protected . . . [and] substantial and demonstrable [is defined] as actual or real and apparent.” (Id. at 6 (citing Governor’s Off. of Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011), and Governor’s Off. of Admin. v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61, 66 (Pa

2008The Supreme Court of Pennsylvania has explained that the appropriate question in applying the personal security exception is “whether the records requested ... would potentially impair the personal security of [another] and whether that potential impairment outweighs the public interest in the dissemination of the records.” Sapp Roofing Company, Inc. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 110-11 , 713 A.2d 627, 629 (1998) (emphasis added).

2008The Supreme Court of Pennsylvania has explained that the appropriate question in applying the personal security exception is “whether the records requested ... would potentially impair the personal security of [another] and whether that potential impairment outweighs the public interest in the dissemination of the records.” Sapp Roofing Company, Inc. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 110-11 , 713 A.2d 627, 629 (1998) (emphasis added).

2025As to whether the Department carried its burden of invoking the personal security exception, the OOR cited this Court’s observation in Pennsylvania Game Commission v. Fennell, 149 A.3d 101, 104 (Pa. Cmwlth. 2016), and Office of the Governor v. Davis, 122 A.3d 1185, 1194 (Pa. Cmwlth. 2015), for the proposition that an “affidavit may not be necessary when an exemption is clear from the face of a record.” Id. at 3, 4. 4 Requester filed his Petition for Review in this Court on January 2, 2024,4 seeking a reversal of the Final Determination.

2025As to whether the Department carried its burden of invoking the personal security exception, the OOR cited this Court’s observation in Pennsylvania Game Commission v. Fennell, 149 A.3d 101, 104 (Pa. Cmwlth. 2016), and Office of the Governor v. Davis, 122 A.3d 1185, 1194 (Pa. Cmwlth. 2015), for the proposition that an “affidavit may not be necessary when an exemption is clear from the face of a record.” Id. at 3, 4. 4 Requester filed his Petition for Review in this Court on January 2, 2024,4 seeking a reversal of the Final Determination.

2025OOR compounded this error by citing Fennell for the proposition that an 9 affidavit may not be needed when “an exemption is clear from the face of a record.” 149 A.3d at 104 .

2021“An agency bears the burden of proving, by a preponderance of the evidence, that a record is exempt from disclosure under one of the enumerated exceptions.” Brown v. Pa. Dep’t of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015); Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1). 7 Under the personal security exception, the RTKL exempts from access “[a] record, the disclosure of which . . . would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.” 65 P.S. § 67.708(b)(1)(ii).

2020Dev., 148 A.3d 142, 144 (Pa. 2016) (holding that this “Court erred in ruling that there is no constitutional right to privacy in one’s home address in connection with RTKL requests,” and that this right “may not be violated unless outweighed by a public interest favoring disclosure”); Purcell, 35 A.2d 814 , 821 (concluding that the “personal security” exemption protected the birthdates of state employees where disclosure would substantially heighten the risk of identity theft and fraud); Times Publ’g Co., Inc., 633 A.2d at 1238 (holding that “public disclosure of [firearms] licensees’ . . . so

2019“This Court recognizes a due process right to be heard extended to third parties in two distinct scenarios: (1) individuals’ home addresses under the personal security exception, [65 P.S. § 67.]708(b)(1)(ii); and, (2) proprietary or trade secret information under the trade secrets exception, [65 P.S. § 67.]708(b)(11).” Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 649-50 (Pa. Cmwlth. 2016).

2015Wilson v. Commonwealth, 616 Pa. 491 , 50 A.3d 1263, 1275-76 (2012) (PSEA III), strongly hinted that the statutory scheme of the RTKL, as it pertains to home addresses and the personal security exception in section 708(b)(l)(ii), 65 P.S. § 67.708(b)(1)(ii), implicates and most likely violates procedural due process.

2013ASCI I, 18 A.3d at 1040, 1042 .

2013Dep’t of Corr. v. Gardner, (Pa.Cmwlth., No. 631 C.D. 2011, filed April 27, 2012) (unreported) (quoting Commonwealth v. Dugger, 506 Pa. 537, 542 , 486 A.2d 382, 384 (1985) that “[a] prison setting involves unique concerns and security risks” and upholding Personal Security exception as to training materials of identified DOC employee).

2013Dep’t of Corr. v. Gardner, (Pa.Cmwlth., No. 631 C.D. 2011, filed April 27, 2012) (unreported) (quoting Commonwealth v. Dugger, 506 Pa. 537, 542 , 486 A.2d 382, 384 (1985) that “[a] prison setting involves unique concerns and security risks” and upholding Personal Security exception as to training materials of identified DOC employee).