Court finds no right of access to unemployment records

PENNSYLVANIA–A requester may not obtain lists of the names and addresses of unemployment compensation claimants, petitions for appeal and notices of hearings under Pennsylvania’s Right to Know Act, the state Commonwealth Court in Harrisburg held in mid-November.

Writing for the unanimous appellate court, Judge Jim Flaherty stated that the petitioner’s request sought documents that either did not exist or were beyond the scope of the state records law.

In response to attorney David L. Bargeron’s request for a list of the names and addresses of unemployment compensation claimants and employers involved in contested unemployment claims, the court noted that no such list exists and state records law does not require an agency to produce or create a new document. Although such a list might otherwise be a public document, the agency cannot grant access to something that does not exist, Flaherty noted.

Bargeron’s request for copies of petitions of appeal and notices of hearing was also denied. The court noted that Bargeron did not meet his burden of proving that the documents were public records.

Pennsylvania law defines a “public record” as, among other things, any order, minute, or decision that “fixes the personal or property rights or duties of a person.” Once an agency denies access, the burden is on the requestor to establish that the records are public, the court noted.

Petitions for appeal notify the unemployment compensation authorities that a benefits claimant wishes to appeal an unfavorable decision. Notices of hearing provide the parties with the date, time and place of the referee’s hearing.

The court noted that, although the documents were important in an informational sense, they did not “fix any rights to benefits to any party” and therefore are not public records.

The requester must show that an agency decision is contingent on information contained in the requested documents and that the decision could not have been made without that information, the court wrote.

The court added that “just because a document may have an effect on an agency decision does not make it an ‘essential component'” of the decision.

Finally, the court noted that even if the requested documents met the definition of a public record, they would probably be exempt from disclosure under the personal security exception of the Act. Bargeron sought the names and addresses of claimants and employers and the claimants’ social security numbers to solicit them as clients. In doing so, the court noted that he was unable to demonstrate a public interest in disclosure sufficient to outweigh the privacy interests of the claimants and employers. (Bargeron v. Dept. of Labor and Industry; Requestor’s Counsel: pro se)