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Burns White Appellate Group successfully argues on behalf of Turnpike Commission for reversal of open records request

Harrisburg, Pa., July 19, 2011 – In a significant published decision, the Commonwealth Court of Pennsylvania ruled that E-ZPass electronic toll information of Pennsylvania Turnpike Commission employees is not subject to disclosure pursuant to the state’s Right-to-Know Law (RTKL).

The Turnpike Commission was represented before the Court by Burns White Appellate Practice Group Chair Ira Podheiser.

In the fall of 2010, The Harrisburg Patriot-News received a tip that Pennsylvania Turnpike Commission employees were allegedly taking advantage of the E-ZPass system, thereby allowing Turnpike employees free access. Patriot-News Capitol Bureau Chief Jan Murphy filed a request under the RTKL to the Pennsylvania Turnpike Commission. Specifically, as part of an investigation into how much state revenue would be lost as a result of Turnpike employee usage, The Patriot-News wanted names and positions all turnpike employees who had E-ZPasses, as well as the times and dates of their travel.

In October of 2010, the Turnpike Commission denied this request, arguing that these records were exempt from public disclosure under a specific section of the Pennsylvania Transportation Act, which stipulates that the electronic toll collection information is not public record.

Arguing that Turnpike Commission employees were not “account holders,” The Patriot-News filed an appeal with the Office of Open Records (OOR), whose official mission is to “enforce the state’s Right-to-Know Law and to serve as a resource for citizens, public officials and members of the media in obtaining public records of their government.”

The Turnpike Commission argued to the OOR that the employees were in fact “account holders,” expressly because the procedures to apply and obtain E-ZPasses were the same for both employees and private citizens. In addition, because no applicant needs to include employer or employment information on the form, E-ZPass holders are exempt from disclosing that information to a third-party, pursuant to a RTKL request.

In December of 2010, the OOR did deny the request for individual names, agreeing that employees are “account holders” under the aforementioned provision of the Pennsylvania Transportation Act. However, the OOR concluded that the Commission failed to present sufficient evidence that the job titles and usage of the turnpike by employees were exempt under that section. Therefore, the Commission would be required to turn over redacted records without names, but with job titles and dates and times of turnpike usage.

Representing the Turnpike Commission on Appeal before the Commonwealth Court of Pennsylvania on June 6, 2011, Burns White’s Ira Podheiser argued that once it was established that turnpike employees are “account holders” who are pursuant to the Transportation Act like all other private applicants for an E-ZPass, then all additional information collected is exempt from disclosure.

On July 19, the OOR’s decision to deny requests for the release of individual names was affirmed by the Court, while the OOR’s determination to provide usage records and employee position information was reversed.

To quote from portions of the Court’s decision directly, “ . . . (Individual) employees are required to complete private account applications in their individual names . . . This application does not require an applicant to disclose employment information.”

The records sought by The Patriot-News were therefore determined by the Court to be exempt from public disclosure. The case is significant because it acknowledges and applies limits on the scope of the RTKL, which was substantially revised in 2009 to make it easier for citizens to gain access to public records.

Click here to read the full decision.

Click here to learn more about Ira Podheiser.