HARRISBURG, Pa. — The Corbett administration does not have to disclose the precise dates of birth for state workers under the Right-to-Know Law, a state appeals court ruled Thursday.
A three-judge Commonwealth Court panel said the threat of identity theft is sufficient to trigger the "personal security" exception that means records do not have to be provided under the current version of the open-records law.
The court said it found credible the opinions of two people cited by Gov. Tom Corbett's Office of Administration — an identity-theft expert and the agency's own chief information security officer. Both men said they believed release of precise dates of birth would put people at "substantial and demonstrable" risk of identity theft.
In overruling the Office of Open Records, the judges said the personal security exception did not require specific facts, such as prior threats to an individual.
"While that may be an appropriate approach under other circumstances, it is an impractical standard when dealing with the records of almost 70,000 state employees," wrote Judge Robert Simpson. "Under the circumstances in this case, the use of statistics and expert opinion is not only reasonable, it is possibly the only available evidence of a risk to personal security of such a large and diverse group."
Philadelphia Inquirer investigative reporter Dylan Purcell sought the names and salaries of all active state employees, along with their dates of birth, job titles, hiring dates and counties. He had previously been given that information by the state five times over a six-year period before having a request rejected last year.
Michael E. Baughman, an attorney for Purcell, said no decision has been made about whether to appeal the decision.
"We're obviously disappointed by the decision and respectfully disagree with it," Baughman said.
Office of Administration spokesman Dan Egan said Thursday it was difficult to know if the information has been used in the past for identity theft.
"If somehow somebody accessed my bank account or my credit card, am I going to immediately think back to a right-to-know request somebody submitted a year ago for my date of birth? Not necessarily," Egan said.
Purcell noted that the General Assembly, when it overhauled the Right-to-Know Law four years ago, voted down amendments that would have exempted dates of birth from disclosure.
Baughman said there is also an exception in the law that prevents releasing dates of birth for those under 18 years old.
"That means the Legislature knew how to exempt dates of birth when it wanted to," Baughman said.
Pennsylvania Newspaper Association media law counsel Melissa Bevan Melewsky called the decision a disappointing day for public access and said she hoped Purcell would pursue further appeals.
"If a court can look at the legislative record and see an amendment voted down and choose to ignore that information, that's disappointing analysis," Melewsky said.
In a concurrence, Judge P. Kevin Brobson said state agencies should be allowed to turn down a request for information under the Right-to-Know Law if they believe disclosure would violate a third party's state constitutional rights, such as privacy. He noted the open-records law does not include any mechanism to inform those third parties or give them a way to intervene in the matter.
Brobson argued that otherwise, personal privacy, liberty and security might be sacrificed "in the name of greater governmental transparency."
"To borrow a phrase from Dr. Benjamin Franklin, those who would sacrifice the former for the latter deserve none of the above," Brobson wrote.
The state Supreme Court decided to disclose dates of birth in its electronic, online database of criminal case records under a policy adopted five years ago. News organizations and others had argued that providing only a birth year would prevent them from distinguishing between two people with the same name.