Should Right-To-Know Law Permit Access to State Retirees’ Names & Addresses?
If you were retiring, would you want marketers of insurance products and funeral services — or similar products — obtaining your name and address from your former employer? Pennsylvania’s Right-to-Know Law could be permitting just such access to information on a large number of state retirees.
In a decision issued January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled the Pennsylvania State Retirement System (SERS) failed to satisfy its burden to prove “a substantial and demonstrable risk” arising from a request for 15 years’ worth of records containing the “names and addresses of all retirees” from the state. Therefore, the names and contact information of more than 1,000 retirees, or if deceased, the information on their beneficiaries, must be disclosed by SERS. And if SERS “failed” in carrying the burden of proving why this should not happen, as the opinion demonstrates, it was not for lack of trying.
The Court recognized an exception from disclosure for retired judges and law enforcement officers on the grounds of specific “personal safety and security” language tied to those positions, contained in Pennsylvania’s Right-to-Know Law.
SERS argued against disclosure of identifying information for a large number of retirees and beneficiaries on the ground that those “age 60 and over” formed a class of “vulnerable” persons, who could “suffer financial fraud, financial exploitation, financial abuse, or theft” as a result of the disclosure of their personal information. In support of this argument SERS submitted affidavits from two experts who opined that even mild cognitive impairment, often associated with aging, could impair one’s ability to manage finances or to appreciate risk.
Any specific purpose for the requested information at issue in the Commonwealth ruling was not identified in the opinion. The Court noted that the Right-to-Know law’s goal of promoting governmental transparency, which was remedial in nature, required any “exceptions to disclosure of public records … [to] be narrowly construed.”
The Court recognized the November 2014 Report and Recommendation of the Pennsylvania Supreme Court’s Elder Law Task Force as authority for the state’s concerns about the potential for elder financial abuse. Indeed, the Court also expressly recognized “that the risks to the elderly … are serious problems that our society is taking steps to overcome.” Nonetheless, the Court concluded that a broad “class” approach to denying record access was inappropriate under the terms of the current law.
The Court did rule that approximately 23 individual retirees who expressly sought to participate in the Right-to-Know proceedings, should be permitted to do so on remand, recognizing they had a “direct interest” in the outcome of the Right-to-Know request.