IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Employees’ Retirement System, :

Petitioner :

 :

v. : No. 1603 C.D. 2016

 : Submitted: February 10, 2017

Kenneth W. Fultz, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: March 29, 2017

The State Employees’ Retirement System (SERS) petitions for review of the 

August 29, 2016 Final Determination of the Office of Open Records (OOR), 

granting, in part, Kenneth W. Fultz’s (Requester) request under the Right-to-Know 

Law (RTKL).1 For the reasons that follow, we vacate and remand.

Fultz filed a Standard Right to Know Request (Request) with SERS on 

April 13, 2016, requesting the following records:

Names and addresses of all retirees who retired, received an annuity 

and/or withdrew all or a portion of their contributions to their 

retirement account, returned to state service for a second, third[,] or 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104. 
2

more periods of employment of two years or more and then retired a 

final time. 

Also the names and addresses of beneficiaries of the above if the 

retiree has passed away.

(R.R. at 11a-12a.) Requester narrowed the Request by stating that he only sought 

information “for the periods of: January 1, 1995 through December 31, 1997[, and 

for] January 1, 2014 through April 15, 2016.” (Id. at 12a.) Requester further 

omitted from his Request information concerning “any returning retiree who repaid 

all funds received during all retirement periods prior to the final retirement[,]” and 

information related to “judges, law enforcement officers[,] and corrections 

officers.” (Id.) 

SERS partially denied the Request. (Id. at 13a.) SERS granted access to 

some of the names requested, but omitted the names of beneficiaries pursuant to 

Section 708(b)(6)(i)(B)2of the RTKL, as well as the names of members that SERS 

believed were exempt from disclosure under Sections 708(b)(1)(ii)3and 

708(b)(6)(i)(C)4of the RTKL. SERS further denied access to the addresses of all 

its members within the scope of the request on the basis that “the issue of public 

access to home addresses under the RTKL is unsettled.” (Id. at 14a.) SERS noted 

that the Pennsylvania Supreme Court was currently addressing that issue in three 

appeals, and that, “[t]o protect the security and constitutional privacy rights of [its] 

members, SERS has preserved this issue for possible appellate review.” (Id.) 

 

2

65 P.S. § 67.708(b)(6)(i)(B). Section 708(b)(6)(i)(B) exempts from disclosure “[a] 

spouse’s name, marital status or beneficiary or dependent information.” Id.

3

65 P.S. § 67.708(b)(1)(ii). Section 708(b)(1)(ii) exempts from disclosure records that, if 

disclosed, “would be reasonably likely to result in a substantial and demonstrable risk of physical 

harm to or the personal security of an individual.” Id.

4

65 P.S. § 67.708(b)(6)(i)(C). Section 708(b)(6)(i)(C) exempts from disclosure “[t]he 

home address of a law enforcement officer or judge.” Id.
3

Requester appealed to the OOR. The OOR invited the parties to supplement 

the record, directed SERS to notify interested third parties within seven days, and 

to advise these third parties that they may request to participate in the appeal. (Id.

at 19a-20a.) Upon receiving notice, several SERS members requested to 

participate in the appeal, six of which were permitted to participate. (Final 

Determination at 3.) Requester did not submit any evidence to supplement the 

record. (Id.) SERS requested a hearing on the matter, which was denied by the 

OOR, stating that “the OOR has the requisite information and evidence before it to 

properly adjudicate this matter.” (Id. at 4.)

In its Final Determination, the OOR held, in relevant part, that the home 

addresses of SERS members are generally subject to public access. (Id. at 8.) The 

OOR reviewed the Supreme Court’s decision in Commonwealth v. Duncan, 817 

A.2d 455 (Pa. 2003) and this Court’s decisions in Office of the Lieutenant 

Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013), and Office of the Governor 

v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013) and concluded that because there is no 

reasonable expectation of privacy in one’s home address, “the constitutional right 

to privacy does not protect one’s home address from public knowledge.” (Final 

Determination at 8.) The OOR further concluded that the home addresses of three 

of the SERS members who directly participated in the appeal must be shielded 

from public access because these individuals submitted information showing that 

the exemption found in Section 708(b)(1)(ii) applies to them. (Id. at 10.)5

 

5

The OOR also affirmed SERS’ decision to withhold the names and addresses of 

beneficiaries pursuant to Section 708(b)(6)(i)(B) of the RTKL. This matter is not raised to this 

Court.
4

SERS now petitions this Court for review.6 SERS argues that the home 

addresses of its members are protected by the constitutional right of privacy, and 

that the requested addresses are exempted by a Hold order issued by the Supreme 

Court. SERS’ constitutional argument relies on the Supreme Court’s decision in 

The Pennsylvania State Education Association v. Office of Open Records, 148 

A.3d 142 (Pa. 2016) (PSEA III), issued after the OOR’s Final Determination, 

which overruled this Court’s decisions in Mohn and Raffle, and held that there is a 

constitutional right to privacy in one’s home address in connection with a RTKL 

request. In PSEA III, the Court held that “[t]he right to informational privacy is 

guaranteed by Article 1, Section 1 of the Pennsylvania Constitution,[7]and may not 

be violated unless outweighed by a public interest favoring disclosure.” PSEA III, 

148 A.3d at 158. SERS asks this Court to conclude, in light of PSEA III, that the 

home addresses of its members are protected by the constitutional right of privacy. 

SERS further asks that we conduct the necessary balancing ourselves, or in the 

alternative, to remand the matter to the OOR with instructions for the OOR to 

remand to SERS to take additional evidence. 

This Court has had the opportunity to address similar petitions for review 

since the Supreme Court decided PSEA III. In each such case, we vacated the 

OOR’s final determination that relied on case law overruled by PSEA III and 

remanded the matter to the OOR to perform the required balancing. See, e.g., State 

Employees’ Ret. Sys. v. Campbell, __ A.3d __, __ (Pa. Cmwlth., No. 871 C.D. 

 

6

This Court’s standard of review of a Final Determination of the OOR is de novo and our 

scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). 

7

Pa. Const. art. I, § 1. Article I, Section 1 of the Pennsylvania Constitution provides: 

“All men are born equally free and independent, and have certain inherent and indefeasible 

rights, among which are those of enjoying and defending life and liberty, of acquiring, 

possessing and protecting property and reputation, and of pursuing their own happiness.” Id.
5

2016, filed March 3, 2017), slip op. at 5 (vacating and remanding to OOR to 

conduct the balancing required by PSEA III); Dep’t of Human Servs. v. 

Pennsylvanians for Union Reform, Inc., __ A.3d ___, ___ (Pa. Cmwlth., No. 1108 

C.D. 2015, filed Feb. 8, 2017) (en banc), slip op. at 12-13 (same). We do the same 

here. We, therefore, vacate the Final Determination and remand the matter to the 

OOR. On remand, the OOR may, at its discretion, provide the parties with an 

opportunity to supplement the record and conduct the balancing required by PSEA 

III itself, or remand the matter to SERS to do the same.8

_____________________________________

RENÉE COHN JUBELIRER, Judge

 

8 Due to our disposition, we need not address SERS’ argument related to the Supreme 

Court’s Hold Order. We note, however, that it appears that the Hold Order is no longer in effect 

pursuant to the Supreme Court’s January 17, 2017 Order in State Employees’ Retirement System

v. Pennsylvanians for Union Reform, (Pa., No. 344 MAL 2015, filed Jan. 17, 2017).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Employees’ Retirement System, :

Petitioner :

 :

v. : No. 1603 C.D. 2016

 :

Kenneth W. Fultz, :

Respondent :

O R D E R

NOW, March 29, 2017, the final determination of the Office of Open 

Records (OOR) in the above-captioned matter is VACATED. This matter is 

REMANDED to the OOR for further proceedings consistent with the 

accompanying opinion.

Jurisdiction relinquished. 

_____________________________________

RENÉE COHN JUBELIRER, Judge