Silver v. Borough of Wilkinsburg
Commonwealth Court
No. 154 C.D. 2012
December 14, 2012
In affirming a final determination of the Office of Open Records (“OOR”), the Commonwealth Court determined that an agency can redact portions of a termination letter sent to an agency employee to the extent those portions do not reflect the termination itself.
Background
Jonathan Silver, a reporter for the Pittsburgh Post-Gazette, submitted a Right to Know Law (“RTKL”) request to the Borough of Wilkinsburg seeking the employment termination letter of a former Wilkinsburg employee.
In response, Wilkingburg provided a redacted copy of the termination letter, which disclosed only the termination language itself and hid the remainder of the letter.
Silver appealed to the OOR, which affirmed Wilkinsburg’s decision to only grant limited access to the letter. On appeal, the Allegheny Court of Common Pleas (“trial court”) affirmed the OOR’s final determination. Silver then appealed to the Commonwealth Court.
Commonwealth Court Decision
The RTKL exempts from access “[i]nformation regarding discipline, demotion or discharge contained in a personnel file” relating to an agency employee, but this exemption does “not apply to the final action of an agency that results in demotion or discharge.” The law does not define “final action.”
Applying the plain meaning of the term “final action,” the court explained that the final action was the employee’s termination and the letter was a record of that action.
Yet, according to the court, the other information in the letter — which related to past discipline — was exempt under the RTKL.
In support of this view, the court looked to the Sunshine Act, which governs public access to agency meetings. The court stated that under the Sunshine Act, only the termination itself would be considered an “official action” that would need to be done at a public meeting and that any discussions of discipline would be conducted outside of public view.
Drawing a parallel between the Sunshine Act and RTKL, the court reasoned that the entire termination letter is not subject to public disclosure. Specifically, the court held that the portions of the letter relating to the agency’s past disciplining of the employee were properly redacted.
Two judges of the court dissented. Those judges would have required the agency to disclose the entire letter.
▪ December 14, 2012 — Commonwealth Court Opinion — No. 154 CD 2012 — Silver v. Borough of Wilkinsburg