IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Employees ’ Retirement System

, : Petitioner :

:

v. : No. 1 6 03 C.D. 2016

: Submitt ed : Febr uary 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 ) r equest 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 withdre w all o r 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 t he 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 period s prior to the final retirement [, ] ” and

information related to “ judges, law enforcement officers[,] a nd 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) 2 of the RTKL, as well as the names of membe rs that SERS

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

708(b)(6)(i)(C) 4 of 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 address ing that issue in three

appeals

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

members, SE RS 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) exempt s 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, s everal 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 t his 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

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

to privacy does not protect one ’ s h o m e 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 matte r 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 Ed ucation 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 decision s 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 , t he 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 constitution al right of p rivacy.

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

alte rnative, to remand the matter to the OOR with instructions for the OOR to

rema nd to SERS to take additional evidence.

This Court has had the opportunity to addres s 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, o f 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. O n remand, the OOR may, at i t s 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 O rder. We note, however, that it appears that the H old Order is no longer in effect pursuant to the Supreme Court’s January 17, 2017 Order in State Employees’ Ret irement Sys tem 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