In a case that may have implications for any government entity that has an application process related to permit and license issuance, the Commonwealth Court of Pennsylvania recently issued a decision in P.L.C.B. v. Beh, No. 91 C.D. 2018, No. 153 C.D. 2018 (Pa. Commw. Ct. July 17, 2019), concerning whether residential and financial information contained in liquor license applications must be disclosed to the public.
In Beh the Court was tasked with reviewing a Final Determination of the Office of Open Records (“OOR”) concerning an initial request for residency and financial information contained in the applications of several liquor licensees. The OOR sided with the Pennsylvania Liquor Control Board (“PLCB”) in determining that the financial information contained in the Individual Financial Disclosure Affidavits that are part of liquor license applications and used for investigatory purposes is not subject to public disclosure. However, the OOR determined that PLCB had not met its burden of demonstrating that the privacy interests of liquor license applicants related to their address and residence history outweighed the public interest in access to that information.
The Commonwealth Court reversed the Final Determination in part, holding that the PLCB had met its burden of proof that residential information is not subject to disclosure, as such information is protected under the state constitutional right to privacy as enunciated by the Pennsylvania Supreme Court in Pa. State Educ. Ass’n v. Dep’t of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (“PSEA”). In PSEA, the Pennsylvania Supreme Court had held that certain types of personal information may be protected under the right of privacy when the personal right outweighed the public interest in disclosure.
In holding that PLCB applicants’ and/or licensees’ addresses and residential history were protected from disclosure, the Commonwealth Court stated that that “in the absence of any other purported purpose in the compelled disclosure of personal information, [a] generic purpose asserted by [a] Requestor … is outweighed by the applicants’ and/or licensees’ well recognized and constitutionally mandated right of informational privacy to their personally identifiable street address information.”
The Commonwealth Court sided with the OOR, however, in holding that financial information was not subject to disclosure. In so holding, the Court stated that “a sworn affidavit is competent evidence to sustain an agency’s burden of proof” in demonstrating that the records are part of a non-criminal investigation and thus exempt from disclosure.
This is an important case that may have implications for any government entity that has an application process related to permit and license issuance. Where a request is made for the contents of an application that contains residence and financial data, Open Records Officers and Solicitors should respond with P.L.C.B. v. Beh in mind.