Legal Hotline: RTKL and Public Employee Severance Package
Legal Hotline: RTKL and Public Employee Severance Package
Q. I requested a copy of the severance package for a borough administrator who quit. The package was approved by borough council, but the borough has refused to provide a copy citing privacy concerns. Aren’t severance packages public?
A. Yes, the severance package is a public record and must be provided by the borough either informally or in accordance with the Right-to-Know Law.
Pennsylvania’s RTKL makes records in the possession of government agencies presumptively public. To deny access to a record, the borough must show that the record is protected by other, more specific law, court order, lawful privilege, or an exemption to the RTKL. None of these prohibit access to the severance package.
On the contrary, Section 708(b)(6)(ii) of the law expressly requires agencies to provide public access to:
“…the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee.”
Public employees are paid from public funds; their salaries and any other payments made to them, including severance packages and separation or settlement agreements, are expressly public pursuant to the RTKL. There is no expectation of privacy in a publicly funded salary or severance package, and the records must be provided pursuant to law.
If the severance package contains details that are nonpublic, such as Social Security numbers or individually identifiable medical information, for example, the borough may redact only the nonpublic information and it must release the remainder in accordance with Section 706 of the RTKL. Redactions are treated as a denial under the law and can be appealed to the Office of Open Records.
It is also worth noting that the RTKL does not require a formal, written request to access public records. Agencies can – and should – provide access to clearly public records informally and without the need for administrative barriers whenever possible. Providing public access to records informally saves time and public resources, and it creates a more transparent, efficient and responsive government. PNA recommends requesting access informally first and relying on the formal RTKL process if needed.
As always, this is not intended to be, nor should it be construed as, legal advice. If you have a specific legal question, please contact your news organization’s private attorney or call the PNA Legal Hotline at (717) 703-3080.