What you need to know about the Right-To-Know Law
Employee Information and the Right-To-Know Law
Prepared by PSEA Legal Division
The Pennsylvania General Assembly recently made major changes to Pennsylvania’s Right-to-Know Law, with new changes in effect as of January 1, 2009.
While these changes were designed to increase transparency in the government’s decision-making and activities, the new law also may increase public access to information about individual public employees. This alert provides PSEA members with information about this new Right-to-Know Law and how it may affect them.
Whose information is subject to the Right-to-Know Law?
The Right-to-Know Law generally provides public access to the records of Commonwealth agencies, local agencies, courts, and legislative agencies. As “local agencies,” all public school districts, intermediate units, charter schools, and public trade or vocational schools are subject to the Law’s requirements.
What records are “public” records under the Law?
The Right-to-Know Law defines a “public record” of an agency as any information that documents a transaction or activity of the agency, and information that is created, received, or retained either by law or in connection with the business or activities of the agency. This information can be in any physical form - paper or electronic, document or recording, etc. The law is very broad in scope, and would include many records created or received by individual public employees.
The term “public record” includes financial records of an agency. Financial records consist of accounting records of an agency and contracts which the agency has entered into, including final collective bargaining agreements and individual employment contracts. It also includes an individual employee’s salary and other compensation, and the length of service of an employee.
What records are not “public” under the Law?
The Right-to-Know Law contains a long, detailed list of exclusions that would protect certain records with information about individual public employees. For example, the Law exempts the following personal information from public disclosure:
• Social security, driver’s license, employee, and other confidential number.
• Personal financial information.
• Home, cellular, and other personal telephone numbers, and personal e-mail addresses.
• Information about an employee’s medical, psychiatric or psychological history or status, and enrollment in a program designed for employees with disabilities (i.e., workers’ or unemployment compensation).
• An employee’s marital status, the name of an employee’s spouse, or information about an employee’s dependents or beneficiaries.
The Right-to-Know Law also exempts the following employment information from public disclosure:
• Letters of reference or recommendation, and performance ratings or reviews.
• Employment applications of those who are not hired by an agency.
• Workplace support services program information.
• Written criticisms of an employee, and information relating to discipline, demotion, or discharge contained in a personnel file (but not the final action of an agency resulting in demotion or discharge).
• Academic transcripts.
• Examinations given in primary and secondary school, and scoring keys or answers.
• Licensure examinations and other examinations related to an individual’s qualifications.
• Notes and working papers made solely for an employee’s personal use that has no official purpose.
• Any information that relates to or results in either a criminal or noncriminal investigation.
The Right-to-Know Law exempts the following labor relations information from public disclosure:
• Records dealing with strategy or negotiations relating to collective bargaining, labor relations, and labor arbitrations (but not a final executed contract).
• An arbitrator’s opinion, an arbitration exhibit, and a transcript of an arbitration hearing (but not the arbitrator’s final award or order).
• Grievance materials.
The law generally excludes any record for which disclosure would present a risk physical harm or otherwise risk an individual’s personal security.
How does the Right-to-Know Law affect PSEA members?
The Right-to-Know Law includes broad disclosure requirements, making some information about individual employees subject to public access. For example, an individual public employee’s salary is “public record,” as well as his or her years of service. Public employers are also required to disclose collective bargaining agreements and individual employment contracts.
Certain individual employee information is protected from disclosure under the Law, including social security numbers, personal telephone numbers, and information about an employee’s family members. Also, many personnel records are exempt from disclosure, including written criticisms, letters of recommendation, and most disciplinary records.
PSEA is currently seeking clarification from the Commonwealth’s Office of Open Records regarding several items of personal information which are not specifically excluded under the Law (i.e., home addresses, dates of birth, and tax information). In particular, we have asked the Open Records Office for an Advisory Opinion regarding the release of employee W-2 forms which have been requested by a taxpayer from districts. PSEA strongly objects to the release of these forms.
Because of the broad sweep of the Right-to-Know Law, PSEA members working in public schools should be aware that many records or documents that are created or used in course of employment may be subject to public disclosure, including e-mail. PSEA recommends that employees use work email only for work-related communication. Employees should make sure that every e-mail is written using only professional language, and that they would be comfortable having any of their work e-mail available for view by a member of the public.
For more information about safe e-mailing, visit psea.org/technology for tips and resources.
Please contact your PSEA UniServ Representative if you have any questions about the Right-to-Know Law, and its effect on your individual employee information.