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Birth dates off record

No right to know them in Pa., a panel rules.

HARRISBURG - The Corbett administration does not have to disclose the precise dates of birth for state workers under the Right-to-Know Law, a state appeals court ruled Thursday.

A three-judge Commonwealth Court panel said the threat of identity theft was sufficient to trigger the "personal security" exception under which records do not have to be provided under the current version of the open-records law. The Inquirer had sought the information.

The court said it found credible the opinions of two people cited by Gov. Corbett's Office of Administration - an identity-theft expert and the agency's own chief information security officer. Both men said they believed release of precise dates of birth would put people at "substantial and demonstrable" risk of identity theft.

In overruling the Office of Open Records, the judges said the personal security exception did not require specific facts such as prior threats to an individual.

"While that may be an appropriate approach under other circumstances, it is an impractical standard when dealing with the records of almost 70,000 state employees," wrote Judge Robert Simpson. "Under the circumstances in this case, the use of statistics and expert opinion is not only reasonable, it is possibly the only available evidence of a risk to personal security of such a large and diverse group."

The Inquirer sought the names and salaries of all active state employees, along with their dates of birth, job titles, hiring dates, and counties. It had been given that information by the state five times over a six-year period before a request was rejected last year.

Michael E. Baughman, an attorney for the newspaper, said no decision had been made about whether to appeal the decision. "We're obviously disappointed by the decision and respectfully disagree with it," Baughman said.

Office of Administration spokesman Dan Egan said Thursday that it was difficult to know if the information had ever been used for identity theft.

"If somehow somebody accessed my bank account or my credit card, am I going to immediately think back to a right-to-know request somebody submitted a year ago for my date of birth? Not necessarily," Egan said.

Inquirer reporter Dylan Purcell, who requested the information, noted that the General Assembly, when it overhauled the Right-to-Know Law four years ago, voted down amendments that would have exempted dates of birth from disclosure.

An exception in the law also prevents releasing dates of birth for those under 18, Baughman said.

"That means the legislature knew how to exempt dates of birth when it wanted to," Baughman said.

Pennsylvania Newspaper Association media law counsel Melissa Bevan Melewsky called the decision disappointing and said she hoped the paper would pursue further appeals.

"If a court can look at the legislative record and see an amendment voted down and choose to ignore that information, that's disappointing analysis," Melewsky said.