IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Labor and Industry, : No. 980 C.D. 2015 : Argued: March 9, 2016 Petitioner :

:

v. :

: Kathryn Simpson, :

: Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE WOJCIK FILED: August 30 , 2016

The Department of Labor and Industry (Department) petitions for
review of the May 15, 2015 Final Determination of the Office of Open Records
(OOR) granting in part and denying in part the request filed by Kathryn Simpson,
Esq., (Requester) under the Right

- to

- Know Law (RTKL ), 1 for information related

to workers’ compensation claims filed on or after January 1, 2014. For the reasons

that follow, we reverse.

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101

- 67.3104.2 On February 24, 2015, Re quest er submitted a RTKL request to the

Department ’s o pen

- r ecords o fficer

, asking for the following information :

1

. N ames and addresses of all workers’ compensation claimants who have filed claims on or after January 1, 2014;

2

. D ate of injury;

3

. C laim number assigned; and

4

. N ame and address of workers’ compensation carrie r

. Reproduced Record (R.R.) at 1a

- 2a. In the request form, Request er stated that the
purpose of the request was not to obtain medical record s but “ only information

sufficient for the employer o r in s urance company who made pa y ments to or on
behalf of these claimants to seek subrogation from the appropriate party before the
workers’ compensation judge or board. ” 2 R.R. at 2 a

.

2 In relevant part, Section 319 of the Workers’ Compensation Act

, Act of June 2, 1915, P.L. 736, as amended , 77 P.S. § 671, states:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer

. . . .

Where an employe has received payments for th e disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.3 On March 3, 2015, the Department denied the reques t, citing Sections

708(b)(5) 3 and 708(b)(28) 4 of the RTKL

, and asserting that the records requested
relate to the disability status of individuals and would identify individuals who
have applied for workers’ compensation benefits

. R.R. at 3a

- 4a.

3 Section 708(b)(5) states that the following records are exempt from access:

A record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers' compensation and unemployment compensation; or related information that would disclose individually identifiable health information.

65 P.S. §67.708(b)(5).

4 Section 708(b)(28) exempts from disclosure:

A record or information:

(i) identifying an individual who applies for or receives social services; or

(ii) relating to the following: (A) the type of social services received by an individual; (B) an individual’s application to receive social services, including a record or information related to an agency decision to grant, deny, reduce or restrict benefits, including a quasi

- judicial decision of the agency and the identity of a caregiver or others who provide services to the individual; or (C) eligibility to receive social services, including the individual’s inc ome, assets , physical or mental he alth, age, disability, family circumstances or record of abuse.

65 P.S. §67.708(b)(28) (emphasis added)

.4 Requester appealed to the OOR

, arguing that the requested records are

not exempt under Section 708 of the RTKL , protected by any privilege , or protected by any other federal or state law. More specifically, Requester asserted

that Section 708(b)(5) of the RTKL does not provide a blanket exception for all
workers’ compensation records, but rather, is applicable only to medical or
disability status information. A dditionally, a lthough Requester a cknowledged that

Section 708(b)(28) of the RTKL exe mp ts from di sclosure records relating to an individual’s receipt of social services , i nclud ing workers’ compensation benefits, 5

she nevertheless argued that application o f that exception precludes employers and
insurers from obtaining information necessary to assert t heir rights under workers’
compensation law. R.R. at 5a

- 7a.

The Department filed a response to Requester’s appeal , asserting that
the plain language of Section 708(b)(5) restricts access to any records reflecting an

individual’s enrollment in a workers ’ compensation program and that Section
708(b)(28) precludes access to records that relate to an individual ’ s appl ication for
workers’ compensation benefits . The Department also noted that whether the
requested information would be useful in workers’ compensation cases is

irrelevant. 6

5 Section 102 of the RTKL, defines the term ‘social services’ as including workers’ compensation benefits. 65 P.S. §67.102.

6 In Hunsicker v. Pennsylvania State Police , 93 A.3d 911, 913 (Pa. Cmwlth. 2014), we explained:

Under the RTKL, whether the document is accessible is based only

on whether a document is a public record, and, if so, whether it falls within an exemption that allows that it not be disclosed. The status of the individual requesting the record and the reason for the request, good or bad, are irrelevant as to whether a document must (Footnote continued on next page...)5 The OOR issued a Final Determination on May 15, 2015, granting the
appeal in part and denying it in part

. The OOR first concluded that the records are
not exempt under Section 708(b)(5), observ ing that the Department pr esented no
evidence to demonstrate that any of the items requested would reveal the type or

nature of an individual’s injury or any individually identifiable health information

. The OOR also stated that while items 1 and 2 of the request (a claimant’s nam e and address and date of injury) may generally reveal the fact that an individual was
injured, such records do not reveal the type or nature of the individual’s injury.
Finally, the OOR concluded that there is “no plausible basis” to find that the

record s responsive to items 3 and 4 (claim numbers and names and addresses of
workers’ compensation carriers) reveal individually identifiable health

information. Therefore, the OOR concluded that none of the requested information
falls within the exception to disclosure in Section 708(b)(5). R.R. at 14a

- 15a.

The OOR next determined that a claimant’s name is exempt under

Section 708(b)(28) because revealing a claimant’s name would identify a recipient

of social services. However, the OOR further concluded tha t the exemption did
not apply to the records requested in their entirety. Relying on Housing Authority
of the City of Pittsburgh v. Van Osdol , 40 A.3d 209 (Pa. Cmwlth. 2012), the OOR
reasoned that records responsive to the remaind er of the request, the cl aimants’
addresses, dates of injury, claim numbers, and the names and addresses of workers’
compensation insurance carriers, would not identify an individual who applies for

(continued...)

be made accessible under Section 301(b). See 65 P.S. §67.301(b) (stating that an agency ‘may n ot 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.’).6

or receives social services and, therefore, were not exempt under Section

708(b)(2 8). R.R. at 15a

- 18a.

A ccordingly, the OOR direct ed the Department t o provide all
responsive records, with the exception of the names of workers’ compensation

claimants , within thirty days

. T he Department now appeals to this Court. 7

T he Department argue s that the OOR erred in ordering the redaction

of claimants ’ names and disclosure of the remainder of the r equest ed information

when the r equest ed record in its entirety is not a public record. 8 We agree.

A party seeking access to information under the RTKL must establish
that the information sought is a “record” of the agency. Pennsylvania Office of
Attorney General v. Philadelphia Inquirer , 127 A.3d 57, 60 (Pa. Cmwlth. 2015).
Section 102 of the RTKL defines a “record” as “information, regardless of physical
form or characteristics, 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 th e agency.” 65 P.S. §67.102. Under the

RTK L, a determination of whether information is accessible is based on whether it
is a “public record.” Clinkscale v. Department of Public Welfare , 101 A.3d 137,

140 (Pa. Cm w l th. 2014)

. Section 102 of the RTKL defines a “public record” as

[a] record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708;

7 In reviewing a final determination of the OOR, this Court’s standard of review is de novo and our scope of r eview is plenary. C l inkscale v. Department of Public Welfare , 101 A.3d
137 , 139 n.2 (Pa. Cmwlth. 2014)

.

8 W e have reordered the arguments raised by the Department.7 (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.

67 P

. S

. §67.102 (emphasis added).

A Commonwealth agency bears the burden of proving that a record is
exempt from disclosure under the RTKL. Section 708(a) of the RTKL, 65 P.S.

§67.708(a). If a record is exempt under S ection 708 (b) , it is not a public record
subject to disclosure under the RTKL. 67 P.S. §67.102; Saunders v. Pennsylvania
Department of Corrections, 48 A.3d 540, 543 (Pa. Cmwlth. 2012). If a record is
not exempt from disclosure

, but contains information t hat is not subject to access,

th e agency may discharge its duty by providing redacted records. Section 706 of
the RTKL, 65 P.S. §67.706. Conversely, if a record is exempt from disclosure
under the RTKL and thus is not a public record, it need not be reda cted in

accordance with Section 706 of the RTKL. Department of Corrections v. St.

Hillaire , 128 A.2d 859 , 865

- 66 (Pa. Cmwlth. 2015).

In determining that the requested record was not exempt in its entirety
and ordering redaction, t he OOR erred in two respects. First , the OOR failed to
recognize that the subsections of Section 708(b) set forth separate and dis tinct
exemptions from public access. Additionally, the OOR erred in ordering redaction

of information from a record that is exempt from disclosu re and therefore not a
public record under Section 708(b) (28) (ii)(B).

In doing so, t he OOR relied on V an O sdol

, which involved a RTKL
request by reporter Paul Van Osdol (Van Osdol) asking the Housing Authority of
the City of Pittsburgh (Authority) to provide the addresses and owner names for all8

Section 8 properties administered by the Authority. 9 The Authority denied the

request
, asserting, inter alia , that the information was exempt from public access

under Section 708(b)(28)(i) (“identifying an in dividual who applies for or receives
social services”) and 708(b)(28) (ii)(A) (“ relating to the type of social services
received by an individual”). Van Osdol appealed to the OOR, alleging that he
sought only the addresses of Section 8 properties and the n ames of such property

owners, not the names of housing subsidy recipients. The Authority responded
that disclosure of Section 8 property addresses would identify thousand s of
households participating in the Section 8 program and the disclosure of the

land lords’ names would enable Van Osdol to sear ch county real estate records and
identify persons receiving assistance.

In its final determination, the OOR directed the Authority to provide
the requested information to Van Osdol, on the ground that disclosure of the name

of the owner of a Section 8 propert y or the property ’s address does not, by itself,
identify an individual who receives social services.

The Authority appealed to the trial court, which dismissed the appeal
for lack of jurisdiction but considered the merits of the appeal nonetheless; the trial

court concluded

, inter alia , that the Authority failed to establish that the
information requested was exempt from public access under Section 708(b)(28 ) (i)

, as information identifying individu als applying for or receiving social services or

Section 708(b)(28) (ii)(A) , as information relating to the type of social services
received by an individual.

9 The “Section 8 Program,” which is funded by the federal government and administered by local housing authorities, provides rental assistance to low

- income families. Section 8(a) of the Housing and Community and Development Act of 1974, 42 U.S.C. §1437(f)

.9 On further appeal to this Court, we noted that the exemptions from

disclosure under Section 708 (b) must be narrowly construed. Van Osdol , 40 A.3d

at 215. W e determined that the requested information, addresses of Section 8
properties and names of individuals who owned them, did not, itself, identify
individuals who applied for or receive social se rvices or the type of social services
those individuals receive. Narrowly construing the exemptions to disclosure

, we

held that the information requested in Van Osdol did not fall within the exemptions

set forth at Section 708(b)(28)(i) and (ii)(A)

. 10

In applying Van Osdol to this case, the OOR reasoned that “ [ a ] n y claimant’s name is exempt under Section 708(b)(28) as it would clearly identify

the name o f a recipient of social services. ” (OOR Final Determination at 6.) The

OOR a lso determined that “the home addresses of the recipients of social services
are subject to public access because without the corresponding name of the
recipient, the address will not identify an individual who applies for or receives

social services. Id.

However, th e OOR failed to distinguish the exemptions at issue in

Van Osdol

, at Section 708(b) (28) (i) and 708(b) (28) (ii)(A), from the specific
exemption at issue in this case, which exempts from access a record or i nformation
relating to “ an individual’s application ” to receive social services

. Section

708(b) (28) (ii)(B), 65 P.S. §67.708(b) (28) (ii)(B). In c ontrast to Section

708(b)(28) (i) and 708(b) (28) (ii)(A), t his provision does not require that the
requested information identify any individual

, or relate to the ty pe of social

10 The court also rejected the Authority’s assertion that, given the ease of the county’s electronic records search capabilities, the disclosure of the requested information would allow Van Osdol to ascertain the identity of social service recipients an d the type of services they receive, as unsupported by evidence of record.10

services received by an y individual

, in order to be exempt from public access.
Instead, and in addition to those specific exemptions, the plain language of Section

708(b) (28) (ii)(B) applies to a ny record or information relating to an individual’s
application to receive social services. 11

Without question, e very element of th is r equest
, for names and
addresses of all workers’ compensation claimants who have filed claim s on or after
January 1, 2014; date of injury; claim number assign ed; and name and address of
workers’ compensation carrier, has the same genesis, an individual’s claim for
workers’ compensation benefits. In the context of workers’ compensation law, a
“claim” is an “application” for benefits. Thus, on its face, the r eq uest seeks
information “relating to . . . an individual’s application” for workers’
compensation , and such information is exempt from public access under Section

708(b) (28) (ii)(B). The OOR erred in failing to separately consider and apply this
provision.

Because the r equest ed information is exempt under Section 708(b),
the information is not a “public record” and is exempt from discl osure in its
entirety. Department of Health v. Office of Open Records , 4 A.3d 803 , 814

- 15 (Pa.

Cmwlth. 2010) . In Department of Health

, we rejected the OOR’s argument that, in

11 “ In determining whether a record is exempt from access under [Section 708], an agency shall consider and apply each exemption separately.” Section 708(e) of the RTKL, 65
P.S. §67.708(e). V arious exempt ions are based on the consequences of disclosure

. See, e.g. , Section 708(b)(1), (2), (3), (4), applying to a record, “the disclosure of which

. . . , ” or “ which, if
disclosed

. . . . ” S everal exemptions specifically protect the identity of an individual

. See, e.g., Section 708(b)(6), (13), (23), (30) , applying to “personal identification information,” or a record “identifying . . . .” O ther exemptions, such as the provision at issue he re, apply more broadly and protect from ac cess records “relating to” or “pertaining to” a specific matter

. See, e.g. , Section 708(b)(16), (17), (18), (28)

.11

addition to proving that the records requested might be exempt under Section 708

, the state agency was required to make every effort to provide as much information

as possible from the records through redaction. Id. I n that case, the agency relied

o n Section 706 of the RTKL, which states in relevant part:

If an agency determines that a public record . . . contains information which is subject to access as well as in formation which is not subject to access, the agency’s response shall grant access to the information which is subject to access and deny access to the information which is not subject to access. If the information which is not subject to access is an int egral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access. The agency may not deny access to the record if the information which is not subject to access is able to be redacted.
65 P.S. §67.706 (emphasis added). We explained that the agency ’s reli a nce on this
provision was misplaced ; u n der the plain language of Section 706, the redaction
requirement only appl i es to “public records,” and if a record falls within one of the
exemptions set forth in Section 708, that record is not a public record as defined by

Section 102 of the RTKL. We held that the re quested documents, which were
exempt under Section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17), were

excluded from the definition of public record in S ection 102, and, as such, were
exempt, “in their entirety,” from disclosure. Department of Health , 4 A.3d at 815

-
16. See also Heavens v. Department of Environmental Protection , 65 A.3d 1069,

1077 (Pa. Cmwlth. 2013) (“records that are exempt under Section 708 or
privileged are not considered public records and are therefore not subject to the

redaction re quirement contained in Section 706, which applies only to records that12

are public and contain information that is not subject to access”); Saunders

, 48

A.3d at 543. 12

Because the r equest ed information is exempt under Section

708(b)(28) (ii) (B), the informat ion is not a “public record,” and the record is
exempt from disclosure in its entirety. Department of Health . Therefore, t he OOR

erred in ordering the Department to redact the names of workers’ compensation

claimants and provide all responsive records

.

Accordingly, the order of the OOR is reversed. 13

MICHAEL H. WOJCIK, Judge

12 As we explained in Saunders :

Petitioner ’ s argument that the Department was required to produce the requested records subject to redaction of the exempt
information is without merit. Section 706 provides that if an agency determines that a public record contains information that is both subject to disclosure and exempt from the disclosure, the

agenc y shall grant access and redact from the record the information which is subject to disclosure. Pursuant to Section 706 , the redaction requirement only applies to records that are determined to be “public records.” A “public record” is defined in part as “[a] record, including a financial record, of a Commonwealth . . . agency that: (1) is not exempt under section
708 .” Section 102, 65 P.S. § 67.102 (emphasis added). Thus, a record that falls within one of the exemptions set forth in Section
708 does not constitute a “public record.”

Id. at 543 (emphasis in original)

.

13 Having determined that the requested records are exempt from disclosure under Section 708(b) (28) (ii)(B) and consequently, are not “ public records ” as defined by Section 102, we need not address whether the records are exempt under Section 708(b)(5) of the RTKL.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Labor and Industry, : No. 980 C.D. 2015

: Petitioner :

:

v. :

: Kathryn Simpson, :

: Respondent :

O R D E R

AND NOW, this 30 t h day of August , 2016, the order of the Office of
Open Records is reversed.

__________________________________ MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

C ommonwealth of Pennsylvania

, : Department of Labor and Industry, : Petitioner :

:

v. : No. 9 80 C .D. 2015

: Argued: March 9, 2016 Kathryn Simpson, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION BY JUDGE COHN JUBELIRER FILED: August 30, 2016

I respectfully dissent as I would affirm the O ffice of O pen R ecords (OOR)

. The Right

- to

- Know Law (RTKL) 1 “is remedial legislation designed to promote
access to official government information.” Levy v. Senate of Pa. , 65 A.3d 361,

367 (Pa. 2013). Finding a blanket exemption in RTKL Section 708(b)(28)(ii)(B),

65 P.S. § 67.708(b)(28)(ii)(B) , as posited by the majority

, is not consistent with

this purpose

. Moreover, “ [a] s the [RTKL] is remedial legislation designed to
promote access to official government information in order to prohibit secrets,

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101

– 67.3104.RCJ

- 2

scrutinize the actions of public officials, and make public offi cials accountable for
their actions, the exemptions from disclosure must be narrowly construed

. ”
Bowling v. O ffice of O pen R ecords , 990 A.2d 813, 824 ( Pa. Cmwlth. 2010) (en

banc), aff’d

, 75 A.3d 453 (Pa. 2013)

. Therefore, I would not construe the
exemption in Section 708(b)(28)(ii)(B) as broad ly as the majority, particularly

when it is read in pari materia 2 with the whole of Section 708(b) ( 28 ) 3 and with

2 As our Supreme Court stated in Levy :

As with any question of statutory interpretation, our object is to “ascertain and
effectuate the intention of the General Assembly” and “if possible, to give effect to all [a statute ’ s] provisions.” 1 Pa. C.S. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). When the statutory language is ambiguous, however, we may ascertain the intention of the General Assembly by considering such things as “[t]he occasion and necessity for the statute,” “[t]he mischief to be rem edied,” “[t]he object to be attained,” and “[t]he consequences of a particular interpretation.” 1 Pa. C.S. § 1921(c). In interpreting a statute, we presume that the General Assembly does not intend an absurd result, to violate the Constitution, nor to fa vor a private interest over the public interest. 1 Pa. C.S. § 1922. Additionally, we interpret remedial legislation liberally to effect its object and promote justice. See

, e.g. , 1 Pa. C.S. § 1928(c). Statutes and parts of statutes that relate to the sa me persons or things must be read in pari materia. 1 Pa. C.S. § 1932.

Levy , 65 A.3d at 380.

3 Section 708(b)(28) exempts from disclosure:

A record or information: (i) identifying an individual who applies for or receives social services; or (ii) relating to the following: (A) the type of social services received by an individual; (B) an individual’s application to receive social services, including a record or information related to an agency decision to grant, deny, reduce or restrict benefits, i ncluding a quasi

- judicial decision of the agency and the identity of a caregiver or others who provide services to the individual; or (C) eligibility to receive social services, including the individual’s income, assets, physical or mental health, age, dis ability, family circumstances or record of abuse.

(Continued...)RCJ

- 3

other RTKL sections including Section 706, 65 P.S. § 67.706

. 4 See

, e.g. , Pa. State

Troopers Ass’n v. Scolforo , 18 A.3d 435 (Pa. Cmwlth. 2011) (supplemental
employment records must be disclosed in redacted form as redacted records pose
no security risk.)

OOR

, in concluding that the records sought in the request 5 contained both
public and non

- publ ic information subject to redaction

, relied on our decision in
Housing Auth ority o f the City of Pittsburgh v. Van Osdol , 40 A.3d 209 (Pa.
Cmwlth. 2012), in which we narrowly construed the exemption in RTKL Sections

708(b)(28)(i) and 708(b)(28 ) (ii)(A), 65 P.S. §§ 67.708(b)(28)(i) and

67.708(b)(28 ) (ii)(A). As we stated in Van Osdol :

Although the general provisions of the Law must be liberally construed to effect its objects, the exemptions from disclosure under

65 P.S. § 67.708(b)(28)

.

4 Section 706 provides the following:

706. Redaction

If an agency determines that a public record, legislative record or financial record contains information which is subject to access as well as information which is not subject to access, the agency ’ s response shall grant access to the information which is subject to access and deny access to the information which is not subject

to access. If the information which is not subj ect to access is an integral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the infor mation which is subject to

access. The agency may not deny access to the record if the information which is not subject to access is able to be redacted. Information which an agency redacts
in accordance with this subsection shall be deemed a denial unde r Chapter 9.

65 P.S. § 67.706.

5 The Requester sought: 1) the names and addresses of all workers’ compensation claimants who have filed claims on or after January 1, 2014; 2) the date of injury; 3) the claim number assigned; and, 4) the name and address o f workers’ compensation carrier.RCJ

- 4

Section 708(b) must be narrowly construed. S ection 1928(c) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1928(c); Allegheny County Dep’t of Admin. Servs. v. A Second Chance, Inc. , 13 A.3d 1025 (Pa. Cmwlth. 2011). Van Osdol sought to obtain only the addresses of Section 8 properties and th e names of the individuals owning those properties. The requested information does not itself identify individuals who apply for or receive social services or the type of social services received by those individuals. Nor does such information directly i dentify the name, home address or date of birth of children who are 17 years of age or younger residing in Section 8 properties, or the home address of a law enforcement officer or judge who may own Section 8 properties. When the exemptions under Section 708(b)(6)(i)(C), (28)(i) and (ii)(A) and (30) of the Law are narrowly construed, as we must do, the requested information does not fall within those exemptions.

Van Osdol

, 40 A.3d at 215

- 16.
I believe that the majority’s construction of Section 708(b)(28 )(ii)(B) and
our analysis in Van Osdol represent a distinction without a difference between the
RTKL sections analyzed. Indeed, if the exemption in Section 708(b)(28)(ii)(B) is

as broad a s posited by the majority, it would appear that Van Osdol effectivel y is

overruled.

Because the majority constru ed Section 708(b)(28)(ii)(B) as providing a
blanket exemption, there was no need to evaluate the evidence presented by the

Department. However, because I disagree with this interpretation, I would

evaluate the evidence presented, and, as OOR pointed out, the Department failed to
produce any evidence tying the requested items to the exemption instead relying
only on legal argument. Without evidence to the contrary, it would appear that the
addresses sought would not be exempt under Van Osdol , and that the date of
injury, claim number and address of the carrier also would appear not to be exempt
as we have no affidavits or other evidence tying this information to the twoRCJ

- 5

sections under which the Department asserted the exemption. For these reasons, I
respectfully dissent and would affirm OOR.

________________________________ RENÉE COHN JUBELIRER, Judge