On August 4, 2011, the Commonwealth Court, in Office of the Budget v. Campbell,___ A.3d. ___ (Pa. Cmwlth. 2011 ), reversed the final determinations of the Office of Open Records ("OOR") that required the release of redacted employees' W-2s. The Commonwealth Court held that under Federal law W-2s are confidential and therefore not a public record under the Right-to-Know Law (the "RTKL").

In the Office of the Budget v. Campbell, Campbell requested current and former employees' W-2s. On appeal to the OOR from the agencies denial, which included the confidentiality provisions in Section 61 03( a) of the Internal Revenue Code as a ground for denial, the OOR's final determination upheld a portion of Campbell's request. The OOR dismissed the Office of the Budget's argument that both federal and state law prohibits the release of tax returns. The OOR held that the W-2s are public records; however, all information except, the employee's name and the contributions to State Employee Retirement System could be redacted. On appeal of the ORR's final determination, the Commonwealth Court relying on the language of Section 61 03( a) of the Internal Revenue Code and the United States Supreme Court's decision in Church of Scientology v. Internal Revenue Service, 484 U.S. 9 (1987) held that W-2s are confidential records under Federal law. The Commonwealth Court further held that W-2s are not public records under the RTKL as the RTKL exempts records protected by Federal law.

When reviewing an open records request, an agency's Open Records Officer should not limit the review to only the exemptions provided in the RTKL, but should determine if any Federal or State law prohibits disclosure. A review of Federal and/or State law should always be considered when the requested record contains personal information required by the Federal or State government. Furthermore, this review must be done and if applicable included as a grounds for denial of a request, as the RTKL prohibits agencies from including additional grounds for denial on appeal.

A copy of the decision in Office ofthe Budget v. Campbell is enclosed.

Robert T. McClintock
Voice (610) 430-8000
Fax (610) 692-6210
rmcclintock@lambmcerlane.com