Chester Housing Authority v. S. Polaha ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chester Housing Authority, :
: No. 2391 C.D. 2015
Appellant : Argued: May 13, 2016
:
v. :
:
Stephen Polaha :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 11, 2016
Chester Housing Authority (Authority) appeals from the October 22,
2015, order of the Court of Common Pleas of Delaware County (trial court) that
affirmed the final determination of the Office of Open Records (OOR) and ordered
the Authority to provide Stephen Polaha with a list of addresses of participants in the
Housing Choice Voucher Program (HCVP). We affirm.
The HCVP is a federally-funded housing program regulated by the
United States Department of Housing and Urban Development (HUD). (Trial Ct.
Op., 1/14/16, at 5.) The Authority administers the HCVP, which provides rental
assistance to low-income families. (Id. at 6.)
Polaha, the solicitor for Chester Township, sent a letter dated October
14, 2014, to the Authority under the Right-to-Know Law (RTKL),1 requesting “[a]
list of properties in the Township . . . where the tenant occupying the dwelling on the
property receives Housing Choice Voucher Assistance . . . from the Authority, the list
to include the address of the property, and the name and address of the property
owner.” (Ex. P-1.) Polaha did not request the names of those occupying the
properties or the names of those receiving assistance. (Id.) Polaha explained that
Chester Township requires yearly inspections of tenant-occupied units and an
inspection each time a unit is newly rented. On October 21, 2014, the Authority
responded to the request and provided a chart listing 74 properties by unit
identification number, census track number, owner’s name, owner’s address, whether
the property had a certificate of occupancy, and the date the property was last
inspected. (Trial Ct. Op., 1/14/16, at 2.)
By letter dated October 24, 2014, Polaha requested “[a] list of the
property addresses in the Township . . . which are owned by the individuals and
entities set forth on the list you previously provided.” (Ex. P-3.) The Authority
responded on October 27, 2014, stating that “[t]he home addresses of participants in
the [HCVP] are not subject to disclosure . . . . This information is exempt from
disclosure.” (Ex. P-4.)
On October 30, 2014, Polaha appealed to the OOR. The OOR issued a
final determination on November 4, 2014, granting Polaha’s request and requiring the
Authority to disclose all responsive records. On December 29, 2014, the Authority
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2
filed a petition for review of the OOR’s final determination and requested a de novo
hearing.
At the hearing, Mary Margaret Militello, the Authority’s HCVP director
since 2004, testified. Militello stated that she created the chart provided to Polaha
that identified the owners of the properties. Militello testified that the Authority does
not maintain a separate list of HCVP-assisted property addresses. Rather, the
Authority maintains information regarding the HCVP by program participant, not by
home address. (Trial Ct. Op., 1/14/16, at 8.)
Militello testified that the Authority maintains both physical and
electronic files. To compile a list of the home addresses of HCVP recipients, the
Authority would have to physically review 1,500 files, which would be a burdensome
task. Militello admitted that the Authority does maintain HCVP information in an
electronic database, including the unit address, the unit size, and the names of the
owner and tenant. Militello stressed, however, that the system is new and the
Authority still relies on paper records. (Id. at 8-9.)
Militello further testified that HUD forms require the Authority to keep
information as to HCVP participants private and confidential. She also testified that
the requested information is exempt from disclosure under the RTKL because such
disclosure would inevitably identify individuals who receive social services, identify
the addresses of children under 17 years of age, reveal personal financial information,
and likely result in a risk of physical harm. Further, disclosure of the requested
3
information would violate the federal Privacy Act2 and a recipient’s constitutionally-
protected right to privacy. (Id. at 6-7.)
The trial court determined that the Authority could search its database
and provide the unit address, the unit size, name of the owner, and name of the tenant,
which the Authority could then redact. Further, the trial court determined that the
requested information was not exempt from disclosure under the RTKL or any other
law and ordered the Authority to produce the requested information. This appeal
followed.3
Initially, the Authority argues that creating and producing a list of home
addresses of HCVP recipients would contravene section 705 of the RTKL, 65 P.S.
§67.705.
Section 705 of the RTKL provides that “[w]hen responding to a request
for access, an agency shall not be required to create a record which does not currently
exist or to compile, maintain, format or organize a record in a manner in which the
agency does not currently compile, maintain, format or organize the record.” 65 P.S.
§67.705. To establish the nonexistence of a record under section 705 of the RTKL,
an agency may provide sworn testimony by an agency official who would have
2
5 U.S.C. §552(a).
3
This court’s review is limited to determining whether the trial court’s findings of fact are
supported by substantial evidence or whether the trial court committed an error of law or an abuse
of discretion. Fort Cherry School District v. Coppola, 37 A.3d 1259, 1261 n.2 (Pa. Cmwlth. 2012).
4
knowledge of the particular records or files. See Moore v. Office of Open Records,
992 A.2d 907, 908-09 (Pa. Cmwlth. 2010).
Militello testified that she is the most knowledgeable person at the
Authority on the particular records, files, and information that the Authority
maintains. Militello testified that the Authority does not maintain a list of HCVP-
assisted property addresses. The Authority maintains information in physical files,
which are organized by tenant, not by property address. Although the Authority
maintains some HCVP information in an electronic database, that database is
incomplete.
The Authority argues that the trial court erred by ignoring Militello’s
testimony and concluding that the Authority failed to establish that it could not search
the database and provide the requested information.
Polaha argues that the Authority has the requested information. Exhibit
P-23 is a document titled “Inspection Checklist,” which contains information on
potential housing units for HCVP recipients, including the property address and
address of the property owner. A separate “vendor file” exists for all properties,
which contains the owner’s name, address, and taxpayer identification. Moreover,
Militello stated that the addresses of the residents and owners are in a searchable
database.
We agree with Polaha that despite Militello’s claims that the computer
system is new the information requested exists in a searchable data base. “[D]rawing
5
information from a database does not constitute creating a record under the [RTKL].”
Department of Environmental Protection v. Cole, 52 A.3d 541, 547 (Pa. Cmwlth.
2012). Because of Militello’s admission that the information exists in a searchable
database, the trial court properly concluded that the Authority did not meet its burden
of proving that the records do not exist.
Next, the Authority argues that a list of the home addresses of HCVP
recipients is exempt from disclosure pursuant to section 708(b)(28)(i) of the RTKL
because it will “identify[] . . . individual[s] who appl[y] for or receive[] social
services.” 65 P.S. §67.708(b)(28)(i). Here, Polaha specifically requested a list of
addresses of tenants who receive HCVP assistance. The Authority maintains that a
person’s identity can be determined by knowing his or her home address because
further steps can be taken to identify the individual living at that house.
The Authority argues that in determining that the addresses are not
exempt the trial court erroneously relied on Housing Authority of the City of
Pittsburgh v. Van Osdol, 40 A.3d 209 (Pa. Cmwlth. 2012). In Van Osdol, the
requester sought ‘“the addresses and owner names for all Section 8 properties
administered by the . . . [Pittsburgh] Authority.’” Id. at 211 (citation omitted). The
Pittsburgh Authority denied the request and the requestor appealed to the OOR. Id.
The OOR concluded that the requested documents were not exempt from disclosure
because ‘“[t]he name of the landlord or the address of a section 8 eligible property
does not, by itself, identify an individual who receives social services.”’ Id. at 212
(citation omitted). Rather, additional steps must be taken to identify the Section 8
tenant. Id. On appeal, the trial court agreed and dismissed the Pittsburgh Authority’s
6
appeal and determined that the Pittsburgh Authority failed to prove that the requested
information was exempt under the RTKL. Id.
This court held that the addresses of Section 8 properties and the names
of the owners of these properties are not exempt from disclosure “under [s]ection
708(b)(6)(i)(C), (28)(i) and (ii)(A) and (30) of the [RTKL].” Id. at 216. We noted,
however, that “[t]here may be some cases in which the evidence establishes that
disclosure of public records” will easily lead to disclosure of protected information,
“but no such evidence was presented here.” Id.
Unlike Van Osdol, where no hearing occurred, the Authority here argues
that it provided the trial court with testimonial and documentary evidence
establishing that disclosing the requested addresses “will necessarily or so easily lead
to disclosure of protected information that production of one is tantamount to
production of the other, or that disclosure of the one is highly likely to cause the very
harm the exemption is designed to prevent.” Id. However, we agree with Polaha that
Van Osdol is controlling and “[t]he requested information does not itself identify
individuals who apply for or receive social services or the type of social services
received by those individuals.” Id. As in Van Osdol, the list of addresses would not
provide the names of HCVP recipients.
The Authority relies on dicta in Van Osdol, wherein the court stated that
disclosure of records that are not facially exempt may lead to disclosure of protected
information. Id. However, Polaha is seeking the same information that was
7
requested in Van Osdol, which this court found was not exempt. “That properly
disclosed public records may enable the requestor or others, by doing further
research, to learn information that is protected from disclosure is not generally a
sufficient basis to refuse disclosure.” Id.
Next, the Authority argues that the home addresses of HCVP recipients
are exempt under section 708(b)(30) of the RTKL because it will identify the “home
address[es] . . . of . . . child[ren] 17 years of age or younger.” 65 P.S. §67.708(b)(30).
Militello testified that 1,919 minors reside in households that receive HCVP
assistance and that disclosure of addresses of HCVP recipients would lead to the
disclosure of those minors. As stated in Van Osdol, however, the requested
information does not “directly identify the name, home address or date of birth of
children who are 17 years of age or younger residing in Section 8 properties.” 40
A.3d at 216.
Next, the Authority argues that the home addresses of HCVP recipients
are exempt from disclosure pursuant to section 708(b)(6)(i)(A) of the RTKL because
they would reveal “personal financial information.” 65 P.S. §67.708(b)(6)(i)(A).
Militello testified that identifying an individual as an HCVP recipient
would enable anyone to review publicly-available information to determine personal
income information of the resident occupying the address. Polaha, however, is not
seeking any information relating to the occupants of the properties in question.
8
Next, the Authority argues that the home addresses of HCVP recipients
are exempt from disclosure pursuant to section 708(b)(1)(ii) of the RTKL because
disclosure would likely “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).
For the physical harm/personal security exemption to apply, a party must
show by a preponderance of the evidence that disclosure of such information ‘“would
be reasonably likely to result in a substantial and demonstrable risk of physical harm
to or the personal security of an individual.”’ Delaware County v. Schaefer, 45 A.3d
1149, 1156 (Pa. Cmwlth. 2012) (en banc) (citation omitted). The Authority argues
that Militello testified that she has dealt with cases of HCVP participants facing
discrimination, stigmatization, and threats to personal safety. At best, the Authority
provided generalized anecdotal evidence that there are people who discriminate
against poor people. The Authority produced no actual evidence of a demonstrable
risk to specific individuals. Id. at 1158.
Next, the Authority argues that the disclosure of home addresses of
HCVP recipients violates the federal Privacy Act.
Under section 102 of the RTKL, the definition of a “public record” does
not include information that is “exempt from being disclosed under any other Federal
or State law or regulation or judicial order or decree.” 65 P.S. §67.102. The Privacy
Act prohibits public dissemination of Personally Identifiable Information (PII)
collected by agencies that receive HUD funding. HUD Notice PIH 2010-15(HA).
PII is defined as information that can be used to distinguish or trace an individual’s
9
identity either by itself, or in conjunction with other personal or identifying
information linked or linkable to a specific individual. HUD Notice PIH 2010-
15(HA).
Polaha responds that HUD Notice PIH 2010-15(HA) does not
specifically define a home address as PII.4 Even if home addresses are PII, 5 U.S.C.
§552(b) lists 12 exceptions where information may be disclosed without consent of
an individual. Specifically, 5 U.S.C. §552(b)(7) allows an agency, upon receipt of a
written request, to disclose a record to another agency or local government for a civil
or criminal law enforcement activity. Here, Polaha sought the addresses to ensure
that HCVP properties have been inspected and have current certificates of occupancy.
Finally, the Authority argues that disclosure of home addresses violates
the HCVP recipients’ right to privacy under the Pennsylvania Constitution.
An individual has a constitutionally protected expectation of privacy
where: (1) the individual has ‘“a subjective expectation of privacy and (2) . . . the
expectation is one that society is prepared to recognize as reasonable and
legitimate.”’ Commonwealth v. Duncan, 817 A.2d 455, 463 (Pa. 2003) (citation
omitted). Here, the trial court recognized that recipients of social services have a
right to privacy in their addresses but concluded that Polaha has not asked for the
addresses of social service recipients. (Trial Ct. Op., 1/14/16, at 21.) We agree with
4
The information includes “name, Social Security number, biometric records, etc. alone or
when combined with other personal identifying information which is linked or linkable to a specific
individual such as date and place of birth, mother’s maiden name, etc.” HUD Notice PIH 2010-
15(HA).
10
Polaha that in accordance with Duncan, there is no expectation of privacy attached to
the requested addresses. In the absence of a recognized property right, the disclosure
of an address does not violate an HCVP recipient’s constitutional rights.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chester Housing Authority, :
: No. 2391 C.D. 2015
Appellant :
:
v. :
:
Stephen Polaha :
ORDER
AND NOW, this 11th day of August, 2016, we hereby affirm the October
22, 2015, order of the Court of Common Pleas of Delaware County.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge