FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No.: AP 2019-0880
:
COLONIAL INTERMEDIATE :
UNIT 20, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to the Colonial

Intermediate Unit 20 (“Unit”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101

et seq., seeking “payroll and timesheets for bus driver Matthew Dees April 2019.” The Unit denied

the Request, arguing that the amount of an individual’s net pay does not constitute a public record,

and that the individual’s right of privacy outweighs the public’s interest in receiving the unredacted

records. The Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth

in this Final Determination, the appeal is granted in part and denied in part, and the Unit is

required to take additional action as directed.

FACTUAL BACKGROUND

On May 2, 2019, the Request was filed, seeking “payroll and timesheets for bus driver

Matthew Dees April 2019.” On May 9, 2019, the Unit invoked a thirty-day extension to respond.

65 P.S. § 67.902(b). On June 8, 2019, the Unit denied the Request in part, providing redacted

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copies of the records and arguing that the records were redacted under Section 708(b)(6) of the

RTKL, which exempts certain personal information from disclosure. 65 P.S. § 67.708(b)(6).

On June 10, 2019, the Requester appealed to the OOR, challenging the denial and stating

grounds for disclosure. The OOR invited both parties to supplement the record and directed the

Unit to notify any third parties of their ability to participate in this appeal. 65 P.S. § 67.1101(c).

The OOR received a request to participate from the Unit employee, Matthew Dees;

however, because the employee’s legal arguments mirror the arguments raised by the Unit, the

OOR denies the request to participate. 65 P.S. § 67.1101(a)(2) (“The appeals officer may limit the

nature and extent of evidence found to be cumulative”); see also 65 P.S. § 67.1101(c)(2)(iii)

(permitting an appeals officer to deny a request to participate where the information is not

probative).

On June 19, 2019, the Unit submitted a position statement reiterating its grounds for denial.

The Unit claims that the redactions include information which covers the tax filing status, health

benefits payment(s), union dues, and retirement contributions of the agency employee. The Unit

argues that the amount of an individual’s net pay does not constitute a public record, and that the

individual’s constitutional right to privacy outweighs the public’s interest in receiving the

unredacted records.

In support of its position, the Unit submitted the attestations of Frank DeFelice, its Open

Records Officer; Susan Schubert, its Management Assistant for Payroll; and Charlene Brennan,

its Executive Director.

LEGAL ANALYSIS

“The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government.” SWB Yankees L.L.C. v.

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Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is

“designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75

A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the

request” and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing

to resolve an appeal. The law also states that an appeals officer may admit into evidence testimony,

evidence and documents that the appeals officer believes to be reasonably probative and relevant

to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id.;

Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing; however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Unit is a local agency subject to the RTKL that is required to disclose public records.

65 P.S. § 67.302. Records in possession of a local agency are presumed public unless exempt

under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. §

67.305. Upon receipt of a request, an agency is required to assess whether a record requested is

within its possession, custody or control and respond within five business days. 65 P.S. § 67.901.

An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §

67.708(b).

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 Section 708 of the RTKL places the burden of proof on the public body to demonstrate that

a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a

record of a Commonwealth agency or local agency is exempt from public access shall be on the

Commonwealth agency or local agency receiving a request by a preponderance of the

evidence.” 65 P.S. § 67.708(a)(1). Preponderance of the evidence has been defined as “such proof

as leads the fact-finder … to find that the existence of a contested fact is more probable than its

nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)).

The Requester seeks payroll records and time sheets of an agency employee. The Unit

provided the records with certain redactions, including the tax filing status, health benefits

payment(s), union dues, and retirement contributions of the agency employee. The Unit argues

that (1) the amount of an individual’s net pay does not constitute a public record, and (2) that Mr.

Dees’ right of privacy outweighs any public benefit in receiving the unredacted records.

1. The Unit may redact information from the payroll records reflecting employee
contributions, election of benefits, union contributions, and tax withholding
information

In the payroll records provided to the Requester, the Unit redacted payroll deductions

reflecting the employee’s contributions to organizations, tax withholding information, and the

employee’s voluntary election of benefits. The Unit argues, among other things, that these

redactions were made pursuant to Section 708(b)(6)(i), which exempts from disclosure “[a] record

containing … personal financial information.” 65 P.S. § 67.708(b)(6)(i)(A). “Personal financial

information” is defined by the RTKL as “[a]n individual’s personal credit, charge or debt card

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information; bank account information; bank, credit or financial statements; account or PIN

numbers and other information relating to an individual’s personal finances.” 65 P.S. § 67.102.

The Unit argues that “…the net pay information provides a glimpse into personal financial

information…[,]” explaining that the redactions include voluntary deductions concerning the

personal financial information of an individual. As a threshold matter, the amount of employer-

paid benefits to public employees is subject to public access under the RTKL. See Bridy v. City of

Shamokin, OOR Dkt. AP 2013-0430; 2013 PA O.O.R.D. LEXIS 300 (holding that amounts paid

by an employer for health benefits are subject to public access); see also Edgell v. Pennridge Sch.

Dist., OOR Dkt. AP 2013-1242, 2013 PA O.O.R.D. LEXIS 721 (holding that payments made to a

public employee related to pensions and retirement benefits fall squarely within the language

contained in Section 708(b)(6)(ii) of the RTKL). However, descriptions of voluntary employee

contributions and employee-elected benefits are exempt under Section 708(b)(6). See, e.g.,

Campbell v. Colonial Sch. Dist. and Montgomery County Intermediate Unit, OOR Dkts. AP 2009-

0350 and 2009-0351, 2009 PA O.O.R.D. LEXIS 173 (holding that voluntary employee

contributions to a 403(b) plan are exempt from disclosure as personal financial information and

may be redacted). Accordingly, redactions which protect voluntary employee contributions and

employee-elected benefits are permissible.

Similarly, the Unit claims it redacted information showing the individual’s contributions

to union organizations. In support of its argument in favor of redaction, the Unit cites to

Pennsylvanians for Union Reform v. Pa. Office of Admin., wherein the Commonwealth Court held

that “[t]he government may not disclose both the employee’s name and the amount of any

financial contribution [to an organization] without infringing on the employee's right to freedom

of association.” 129 A.3d 1246, 1259 (Pa. Commw. Ct. 2015), appeal den’d, 141 A.3d 483 (Pa.

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2016). In this case, it is clear that the identity of the employee is known, as the Request references

the employee by name. Accordingly, the Unit has met its burden of proof that, under the rationale

of Pennsylvanians for Union Reform v. Pa. Office of Admin., the amount of this employee’s

financial contribution to the union, as well as the name of the union, may be withheld. See 129

A.3d 1246 (Pa. Commw. Ct. 2015).

Finally, the Unit argues that certain redactions reflect tax return information and disclose

the tax withholdings and status of the individual employee. An individual’s tax status may reveal

his “marital status or beneficiary or dependent information,” or otherwise would constitute

“personal financial information,” both of which are exempt under Section 708(b)(6). See 65 P.S.

§ 67.708(b)(6)(i)(A-B). The definition of “personal financial information” under the RTKL

includes “…other information relating to an individual’s personal finances.” 65 P.S. § 67.102.

Unlike net pay, discussed infra, there is no express provision in the RTKL which otherwise

provides for the disclosure of an individual’s personal tax withholding information. Accordingly,

the Unit may redact the tax withholding information of the individual employee pursuant to

Section 708(b)(6).

2. The Unit has not established that the net pay information is exempt

The Unit argues that an individual’s net pay does not constitute a public record. The

responsive records the Unit identifies, which it claims reflects the net pay of the individual, are the

individual employee’s payroll statements and timesheets. However, Section 708(b)(6) does not

prohibit the release of the “name, position, salary, actual compensation or other payments or

expenses…of…an agency employee.” 65 P.S. § 67.708(b)(6)(ii) (emphasis added); see also Pa.

Dep’t of Conserv. & Nat. Res. v. Office of Open Records, 1 A.3d 929, 938 (Pa. Commw. Ct. 2010)

(“[T]he General Assembly apparently felt that [Section 708(b)(6)(ii) of the RTKL] was necessary

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to ensure that wage and salary information for … agency employees was available to requesters

under the RTKL”).

In support of its argument that the net pay of an agency employee is not a “public record,”

the Unit cites to Office of the Governor v. Bari, 20 A.3d 634, 640 (Pa. Commw. Ct. 2011), which

addressed whether records of a private third party were “public” when such records documented

the activities of a gubernatorial appointee who was neither a public employee nor a public official.

See id. at 640. Bari is unhelpful to this analysis, as this case concerns the payroll records of a public

employee, not a third-party contractor. See id.

The Unit also provided the affidavit of Ms. Schubert, who attests the “[n]et pay for each

employee is calculated after deductions are made from gross pay that are based upon the

employee’s tax filing status (i.e., single, married, head of household, etc.); health benefits

payments; union dues; retirement contributions.” Dr. DeFelice attests that the year-end pay

statements would have to be redacted “to provide the gross pay information that was provided to

the Requester.” However, the responsive records—payroll records—show the actual

compensation of an agency employee. Like in Mezzacappa v. Colonial Intermediate Unit 20,

OOR Dkt. AP 2019-0840, 2019 PA O.O.R.D. LEXIS 657, the Unit has not explained how

disclosure of the net pay, alone, would disclose otherwise exempt personal financial information.

The Unit also argues that net pay implicates the constitutional right to privacy because it is

calculated based upon individual considerations. However, the OOR has previously held that a

public employee’s net pay is not subjected to the balancing test, as the RTKL expressly provides

that the actual compensation of public employees is public. See 65 P.S. § 67.708(b)(6)(ii); see also

Mezzacappa v. Colonial Intermediate Unit 20, OOR Dkt. AP 2019-0840, 2019 PA O.O.R.D.

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LEXIS 657 (holding that there is no expectation of privacy or right to privacy in net pay

information). Accordingly, the amount of net pay received may be disclosed.

CONCLUSION

For the foregoing reasons, the appeal is granted in part and denied in part, and the Unit

is required to provide partially unredacted1 copies of the records, as discussed above, within thirty

days of the date of this Final Determination. This Final Determination is binding on all parties.

Within thirty days of the mailing date of this Final Determination, any party may appeal to the

Northampton County Court of Common Pleas. 65 P.S. § 67.1302(a). All parties must be served

with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond

as per Section 1303 of the RTKL. 65 P.S. § 67.1303. However, as the quasi-judicial tribunal

adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as

a party.2 This Final Determination shall be placed on the OOR website at:

http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: July 22, 2019

/s/ Joy Baxter

_________________________
APPEALS OFFICER
JOY BAXTER

Sent to: Tricia Mezzacappa (via email only);

Rebecca A. Young, Esq. (via email only);
Frank DeFelice (via email only);
Matthew Dees (via email only)

1
The Requester does not appear to challenge the redaction of employee numbers, home addresses, or bank account
numbers; therefore, any challenge to those redactions are waived. See Pa. Dep't of Corr. v. Office of Open Records,
18 A.3d 429, 434 (Pa. Commw. Ct. 2011).
2
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).