G. Swoboda and Voter Reference Foundation, LLC v. PA DOS (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gina Swoboda and Voter :
Reference Foundation, LLC, :
Petitioners : No. 857 C.D. 2022
:
v. : Argued: April 5, 2023
:
Pennsylvania Department of State :
(Office of Open Records), :
Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE McCULLOUGH FILED: October 20, 2023
Gina Swoboda and Voter Reference Foundation, LLC (collectively,
Petitioners) petition for review of the July 15, 2022 Final Determination of the Office
of Open Records (OOR), which affirmed the Pennsylvania Department of State’s
(Department) denial of Petitioners’ request for records sought pursuant to the Right-to-
Know Law1 (RTKL) (Request). Upon review, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
The relevant facts of this appeal are not in dispute. On March 7, 2022,
Petitioners submitted the Request to the Department seeking a copy of the Full Voter
Export List (List), otherwise known as the public information list, which includes all
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
the data in the public information lists compiled pursuant to Section 1404 of the
Pennsylvania Voter Registration Act (Voter Registration Act),2 for all counties in
Pennsylvania. (Reproduced Record (R.R.) at 4A-5A.) The List includes the following
information of registered Pennsylvania voters: voter identification number, name, sex,
date of birth, date registered, voter status, date status last changed, party, residential
address, mailing address, polling place, date last voted, all districts in which the voter
votes, voter history, and the date the voter’s record was last changed. (R.R. at 6A.) As
set forth in the Request, Petitioners did not utilize the Pennsylvania voter services
website3 to obtain the List because the Department requires all requesters to sign an
affirmation under penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsifications to
authorities by signing the request form) prior to its release of any records (Affirmation).
The Affirmation states:
I affirm that any information obtained from the records
requested from the [Department] will not be used for
commercial or other purposes, except purposes related to
elections, political activities and law enforcement, as required
by 25 Pa.C.S. [§§ ]1207(b) & 1404(c)(2). I further affirm that
I will not publish any of the above lists on the Internet, as such
publication is prohibited by 4 Pa. Code [§§ ]183.13(g) &
183.14(k).
I verify that this statement is true and correct. I understand
that false statements made are subject to the penalties of 18
Pa.C.S. [§ ]4904, relating to unsworn falsification to
authorities.
2
25 Pa. C.S. §§ 1101-1906.
3
The Department currently permits access to the List via its voter services website. (R.R. at
6A.) Once a requester fills out the Affirmation, the website provides a link to purchase the List for
$20.00. Id. https://www.pavoterservices.pa.gov/pages/purchasepafullvoterexport.aspx (last visited
October 19, 2023).
2
By submitting this form[,] I understand that I am entering into
an electronic transaction with the [Department] as defined
under [Section 301(b) of the Uniform Electronic Transactions
Act, Act of December 16, 1999, P.L. 971,] 73 P.S. [§
]2260.301(b). By entering my name below[,] I am submitting
my signature electronically, which I recognize has the full
legal effect and enforceability as a “wet” signature under 73
P.S. [§ ]2260.301.
(R.R. at 7A.) Petitioners stated in the Request that it was submitted outside of the voter
services website “because [Petitioners] cannot agree to certain statements in the
‘Affirmation’ required by the website.” Id. Petitioners further stated that while they
agree to the access restrictions of the List as required by Pennsylvania law, specifically
that the List would only be used for purposes related to elections, political activities,
and law enforcement, they disagree with the Department’s regulation that prohibits
publishing the List on the Internet. Id. As Petitioners noted in the Request, the same
information sought is also available through the voter services website. Id.
On March 14, 2022, the Department notified Petitioners that a 30-day
extension was necessary to respond to the Request. (R.R. at 12A-13A.) Thereafter,
on April 13, 2022, the Department denied the Request. (R.R. at 14A-15A.) The
Department stated that “[u]nder [S]ections 306 and 3101.1 of the RTKL, [65 P.S. §§
67.306, 67.3101.1,] if another law addresses the public nature of a record or the manner
of access to a record, the provisions of the other law prevail over the RTKL.” (R.R. at
3A, 14A.) The Department stated that access to the List was governed by both the
Voter Registration Act and Section 183.14 of the Department’s regulations, 4 Pa. Code
§ 183.14, and that “records relating to voters, known as public information lists, are
only available upon completion of an affirmation that the information will only be used
for purposes relating to elections, political activities, and law enforcement.” (R.R. at
3
3A, 15A.) Section 183.14(k) of the Department’s regulations provides, in pertinent
part, that “[t]he [public information] list cannot be published on the Internet.” 4 Pa.
Code § 183.14(k). The Department further stated that the Request could not be granted
because, in a previous request, Petitioners were granted access to the List but violated
the Affirmation by publishing the information on the Internet. Id. Petitioners noted in
the Request that they would not sign the required Affirmation prohibiting recipients
from publishing the voter lists on the Internet.4 (R.R. at 7A.)
On May 4, 2022, Petitioners appealed the Department’s decision to the
OOR, challenging the Department’s legal authority to control access to the List and
claiming that the Department’s regulations infringed on their right to political speech
under the First Amendment of the United States Constitution. (R.R. at 16A-28A.) The
OOR invited the parties to supplement the record. (R.R. at 42A.) On May 25, 2022,
the Department timely submitted a statement in opposition arguing that Petitioners’
appeal should be dismissed because access to the List is governed by the Voter
Registration Act5 and the Department’s regulations, and that Petitioners’ First
4
Previously, Petitioners had violated that prohibition by posting the List on the Voter
Reference Bureau’s website. The Department’s Chief Counsel wrote to Restoration Action, Inc.,
Petitioners’ parent entity, to demand that Petitioners take the List down. (R.R. at 1A; Department’s
Br. at 6.) In the prior request, Petitioners had gained access to the List by agreeing to refrain from
publishing the List on the Internet. (R.R. at 1A; Department’s Br. at 6.)
5
In relevant part, Section 1404(b) of the Voter Registration Act provides:
(b) Access.--
(1) The secretary may promulgate regulations governing access
to the list.
(2) No individual inspecting the list may tamper with or alter it.
(3) No individual who inspects the list or who acquires names
of registered electors from the list may use information
contained in the list for purposes unrelated to elections,
political activities or law enforcement. Before inspecting the
list or obtaining names of registered electors or other
(Footnote continued on next page…)
4
Amendment arguments were outside the OOR’s jurisdiction and should not be
considered. (R.R. at 33A-36A.) Additionally, the Department submitted two
attestations made under the penalty of perjury from Janelle Hawthorne, the
Department’s Open Records Officer, and Jonathan Marks, the Department’s Deputy
Secretary for Elections and Commissions.6 (R.R. at 29A-32A.) Both Ms. Hawthorne
and Deputy Secretary Marks attested that the information Petitioners sought under the
RTKL was also available through the voter services website. (R.R. at 29A, 32A.) In
her attestation, Ms. Hawthorne attested that she denied the Request for failure to abide
by the Department’s regulations regarding the publication of the List on the Internet.
(R.R. at 31A-32A.) In his attestation, Deputy Secretary Marks attested that the Voter
Registration Act empowered the Department to establish regulations for access to the
List and the Department’s regulations expressly prohibit the List to be published on the
Internet. (R.R. at 29A-30A.) He explained the purposes for which voter records are
conditionally made available to the public and their unique nature. (R.R. at 30A.) He
further acknowledged that the Voter Registration Act directs the Department to
promulgate regulations concerning access to the List, which “regulations are vital to
protect the security of the information that the Department is entrusted to safeguard
and to ensure that it is not used improperly.” Id.information from the list, the individual must provide
identification to the public official having custody of the
public information list and must state in writing that any
information obtained from the list will not be used for
purposes unrelated to elections, political activities or law
enforcement.
25 Pa. C.S. § 1404(b).
6
Under the RTKL, an agency may satisfy its burden of proof by providing unsworn
attestations made subject to the penalties of perjury. Moore v. Office of Open Records, 992 A.2d 907,
909 n.4 (Pa. Cmwlth. 2010).
5
On June 9, 2022, the OOR dismissed Petitioners’ appeal as untimely, to
which Petitioners filed a Petition for Reconsideration. (R.R. at 37A-40A.) On June
15, 2022, the OOR found Petitioners’ appeal was timely filed and, therefore, granted
Petitioners’ Petition for Reconsideration, vacated its June 9, 2022 Final Determination,
and reopened Petitioners’ appeal. (R.R. at 40A.) Subsequently, on July 15, 2022, the
OOR issued its Final Determination denying Petitioners’ appeal on the merits. (R.R.
at 41A-48A.) The OOR found that the Voter Registration Act and the Department’s
corresponding regulations comprehensively govern access to the List. The OOR found
that
the Department has demonstrated that the [Petitioners]
refuse[d] to comply with the provisions of the [Voter
Registration Act], which [Petitioners] do[ ] not dispute.
Accordingly, while the List may be accessible under certain
circumstances, the [Voter Registration] Act supersedes the
RTKL with respect to the List and access may only be obtained
through the [Voter Registration Act].
(R.R. at 47A.) The OOR concluded that Petitioners failure to abide by these regulations
was the proper justification for the Department to deny access to the List. Id. The
OOR also found that it was not the proper forum to address Petitioners’ First
Amendment arguments. Id.On August 15, 2022, Petitioners filed a petition for review with this Court.
II. ISSUES
On appeal,7 Petitioners present three issues. First, Petitioners contend that
the OOR erred in denying their appeal because, under the RTKL, there is no applicable
7
Our standard of review of determinations made by OOR appeals officers under the RTKL
is de novo, and our scope of review is plenary. See Bowling v. Office of Open Records, 75 A.3d 453,
477 (Pa. 2013).
6
exemption to prevent the disclosure of the List. Second, Petitioners assert that
Pennsylvania law does not prohibit the publishing of registered voter information on
the Internet. Third, if such prohibition does exist, Petitioners argue that it violates the
First Amendment and/or is preempted by the National Voter Registration Act8
(NVRA). Petitioners ask this Court to reverse the OOR’s decision, order the
Department to provide the List without Petitioners having to agree to the prohibition
of publishing the List on the Internet, and declare that the Department regulations,
Sections 183.13(g) and 183.14(k), violate their rights under the First Amendment and
are preempted by the NVRA. (Petitioners’ Br. at 42.)
III. DISCUSSION
A. Whether the OOR Erred in Denying Petitioners’ Appeal
Because they are related, we address Petitioners’ first two issues together.
Petitioners assert that in denying their appeal, the OOR erred because, under Section
301(b) of the RTKL, 65 P.S. § 67.301(b), the Department cannot deny access to the
List due to Petitioners’ prior actions of posting the List on their website. Petitioners
further assert that under the RTKL, the List is a public record available for inspection
and that there is no applicable exemption of the RTKL that prohibits disclosing the
List. Petitioners argue the OOR erred in determining the failure to comply with the
Department’s regulation was sufficient grounds to deny access to the List, and that the
OOR erred in not addressing their constitutional and statutory issues.
At the outset, we note the language of Section 301(b) of the RTKL
provides that “[a] Commonwealth agency may not deny a requester access to a public
record due to the intended use of a public record by the requester unless otherwise
provided by law.” 65 P.S. § 67.301(b) (emphasis added). Section 1404(a)-(c) of the
8
52 U.S.C. §§ 20501-20511.
7
Voter Registration Act establishes the information contained in the List, also known as
the public information list, as well as information about copying the List. 25 Pa. C.S.
§ 1404(a)-(c). Section 1404 of the Voter Registration Act establishes the authority of
the Secretary of the Commonwealth to promulgate regulations pertaining to accessing
and copying the List. Additionally, Section 183.14 of the Department’s regulations
governs “Public information lists,” and provides additional information regarding the
List’s contents and procedural safeguards that must be followed before access to the
List will be granted. 4 Pa. Code § 183.14. Specifically, Section 183.14(k) of the
Department’s regulations provides that “[t]he [L]ist may not be published on the
Internet.” 4 Pa. Code § 183.14(k).
As to the Petitioners’ claim regarding use, the record is clear that the OOR
did not deny access to the List based on Petitioners’ proposed use of the List, but rather
denied access based on Petitioners’ refusal to comply with the Section 183.14(k) of the
Department’s regulations.9 (R.R. at 41A-48A.)
Previously, this Court has ruled the RTKL does not apply to a request to
the Department for voter information because access is comprehensively governed by
the Voter Registration Act and the Department’s accompanying regulations; therefore,
access was “otherwise provided by law.” Pennsylvanians for Union Reform v.
9
To be clear, we do not conclude herein that the intended use of an otherwise public record
may be considered by a public entity to determine whether the record must be disclosed under the
RTKL. We consistently have stated that the intended use of a public record is irrelevant under the
RTKL. See, e.g., Section 302 of the RTKL, 65 P.S. § 67.302; Hunsicker v. Pennsylvania State Police,
93 A.3d 911, 913 (Pa. Cmwlth. 2014) (stating that “the reason for the request, good or bad, [is]
irrelevant as to whether a document must be made accessible”). Rather, we conclude here that Section
183.14(k) of the Department’s regulations prohibits publication of the List on the Internet after it is
disclosed to a requester. Because Petitioners would not execute the Department’s form Affirmation
agreeing to not publish the List on the Internet, the Department did not disclose it. To the extent that
Petitioners argue that the regulation therefore violates their First Amendment rights of association,
they must challenge it on that ground using the appropriate legal framework.
8
Pennsylvania Department of State, 138 A.3d 727, 734 (Pa. Cmwlth.) (PFUR), appeal
denied, 164 A.3d 462 (Pa. 2016). In PFUR, the requesters submitted the standard
RTKL request form and affirmation to the Department. The requesters in PFUR argued
that the Department’s regulations were misapplied to their request because “the OOR
cannot enforce stricter access provisions of another law or regulation.” 138 A.3d at
730. There, we held that “[t]he Voter Registration Act and the Department’s
regulations comprehensively govern the accessibility of voter registration
information in Pennsylvania, and the RTKL expressly provides that it will not
apply under such circumstances.” Id. at 734 (emphasis added). Thus, we concluded
that the Department requires RTKL requesters to abide by both the Voter Registration
Act and the Department’s regulations for access to voter registration information. Id.Here, as in PFUR, the Voter Registration Act preempts the RTKL.
Specifically, Deputy Secretary Marks attested that although the Voter Registration Act
provides for the public inspection of voter registration information, it restricts who can
view the List and for what purposes the List can be used. (R.R. at 30A.) Section 183.14
of the Department’s regulations provides that the public information list can only be
used for “elections, political activities or law enforcement.” (R.R. at 29A.) Deputy
Secretary Marks further noted that those requesting access to the List must abide by
the Department’s regulations and
state in writing on the form prescribed by the Department that
they “affirm that any information obtained from records
requested from the [Department] will not be used for
commercial or other purposes, except purposes related to
elections, political activities and law enforcement, as required
by 25 Pa. C.S. [§§ ]1207(b) & 1404(c)(2).” They also further
affirm that they “will not publish any of the above lists on the
Internet, as such publication is prohibited by 4 Pa. Code [§§
]183.13(g) & 183.14(k).” Finally, they must verify that their
9
statement is true and correct and note that false statements
made will be subject to the penalties of 18 Pa. C.S. [§ ]4904,
relating to unsworn falsification to authorities. The
regulations require the form to be signed before any
records can be released.
(R.R. at 30A) (emphasis added). Deputy Secretary Marks attested that Petitioners’
RTKL Request was denied because they refused to comply with the Department’s
regulation requiring a signed Affirmation.
Accordingly, our holding in PFUR compels us to conclude that the Voter
Registration Act preempts the RTKL, and, as such, the Department properly denied
access to the List because Petitioners refused to execute the Department’s required
Affirmation. In accord with precedent, we must conclude that the OOR did not err in
denying Petitioners’ appeal. This should end our inquiry. However, Petitioners have
also sought relief in the form of a declaratory judgment, which we now address.
B. Petitioners’ NVRA and First Amendment Arguments
In the alternative, Petitioners argue that should the Court find that the
Department’s regulations bar publishing the List on the Internet, those provisions are
preempted by the NVRA and violate the First Amendment.10 Correspondingly,
Petitioners request that this Court declare the Department’s regulations
unconstitutional. (Petitioners’ Br. at 42.)
On appeal to this Court, Petitioners argue for the first time that the NVRA
preempts Pennsylvania law. The Department points out that Petitioners did not raise
their NVRA argument in their initial Request or before the OOR. (Department’s Br.
at 23.) We agree and note that a requester cannot modify his original request on appeal
10
The OOR did not address Petitioners’ constitutional challenges as it concluded that it was
not the proper forum to do so. (R.R. at 47A.)
10
to the OOR or this Court. Department of Corrections v. Disability Rights Network of
Pennsylvania, 35 A.3d 830, 833 (Pa. Cmwlth. 2012). We, therefore, conclude that
Petitioners’ NVRA argument is waived and cannot be considered for the first time on
appeal to this Court.11
We next turn to Petitioners’ argument that the Department’s regulation,
Section 183.14(k), is unconstitutional because it limits their political speech in direct
violation of their First Amendment rights.12 Section 183.14(k) of the Department’s
regulations states: “[the List] may not be published on the Internet.” 4 Pa. Code §
183.14(k). Petitioners claim this restriction on publication is unconstitutional because
it restricts their political speech and request that this Court declare it as such via their
RTKL Request. There are several problems with Petitioners’ request for declaratory
relief in this context.
The scope of review in RTKL cases is to determine: (1) whether a
requested record is a “public record,” and (2) whether the requested record is subject
to disclosure or is otherwise governed by a federal or state law. Office of Governor v.
Bari, 20 A.3d 634, 640 (Pa. Cmwlth. 2011). Section 3101.1 of the RTKL, titled
“Relation to other laws,” provides that “[i]f the provisions of [the RTKL] regarding
access to records conflict with any other [f]ederal or [s]tate law, the provisions of
[the RTKL] shall not apply.” 65 P.S. § 67.3101.1 (emphasis added). This Court has
frequently interpreted Pennsylvania and federal laws to determine whether a requested
record is disclosable under the RTKL. However, this Court has never used the RTKL
11
Additionally, we note that the NVRA has its own separate procedure and enforcement
provisions to provide redress for a violation. See 52 U.S.C. § 20510.
12
We note that we only address 4 Pa. Code § 183.14(k) of the Department’s regulations
because this is the only section applicable to Petitioners’ Request as Petitioners seek access to the
public information list. See 25 Pa. C.S. § 1404(a)(1); 4 Pa. Code § 183.14(k).
11
as a vehicle to declare any law unconstitutional as Petitioners are requesting us to do
in this RTKL appeal. See, e.g., Central Dauphin School District v. Hawkins, 253
A.3d 820 (Pa. Cmwlth. 2021) (interpreting the Federal Family Educational Rights and
Privacy Act13 to determine if records were exempt from disclosure under the RTKL);
Ali v. Philadelphia City Planning Commission, 125 A.3d 92 (Pa. Cmwlth. 2015)
(interpreting provisions of the Federal Copyright Act14 which limited access to records
to inspection only in a RTKL matter); Pennsylvanians for Union Reform v.
Pennsylvania Office of Administration, 129 A.3d 1246 (Pa. Cmwlth. 2015) (PFUR v.
POA); Department of Public Welfare v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014)
(determining whether the Pennsylvania Uniform Trade Secrets Act15 required
disclosure of the requested records under the RTKL).
In PFUR v. POA, petitioners sought disclosure of one Commonwealth
employee’s payroll deductions for political action committee contributions. We held
that disclosure would violate his reasonable expectation of individual associational
rights under the First Amendment. We also stated that “[i]f the RTKL were deemed
by this Court to override the [Pennsylvania] Election Code,[16] the General
Assembly’s purpose would be subverted.” Id. at 1261. Importantly, we were not
asked in PFUR v. POA to declare a separate Pennsylvania or federal law
unconstitutional because that law either precluded or required disclosure under the
RTKL. We merely applied the RTKL and held that a federal law, namely, the First
13
20 U.S.C. § 1232g.
14
17 U.S.C. §§ 101-1401.
15
12 Pa. C.S. §§ 5301-5308.
16
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
12
Amendment, precluded disclosure under the RTKL because such disclosure would
violate the constitutional rights of association of a Commonwealth employee (not the
requester).
Critically, there is a difference between determining whether disclosure
of personal information under the RTKL violates an individual’s constitutional rights
versus declaring a separate statute or regulation unconstitutional, as Petitioners are
asking us to do here. This Court is unaware of any case where we have permitted a
collateral inquiry into the constitutionality of any Pennsylvania or federal laws in a
RTKL case.17 That is because Petitioners’ request for this Court to declare Section
183.14(k) of the Department’s regulations unconstitutional is, in actuality, a request for
a declaratory judgment, which is the appropriate mechanism for challenging and
declaring a law unconstitutional. The purpose of the Declaratory Judgments Act18 “is
to settle and to afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations,” including whether certain statutes or regulations
promulgated in the Commonwealth are constitutional. 42 Pa. C.S. § 7541(a). For
example, this Court has commonly considered declaratory judgment actions in our
original jurisdiction. See, e.g., Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d
1205 (Pa. Cmwlth. 2018); Keystone ReLeaf, LLC v. Pennsylvania Department of
Health, 186 A.3d 505 (Pa. Cmwlth. 2018); Ramos v. Allentown Education Association
(Pa. Cmwlth., No. 150 M.D. 2016, filed December 21, 2016); Singer v. Sheppard, 381
A.2d 1007 (Pa. Cmwlth. 1978).
17
Quite obviously, we have no ability to declare federal legislation or regulations
unconstitutional, whether pursuant to the RTKL or in any other context. This only further illustrates
the critical distinction between applying state and federal laws to a RTKL request and declaring such
laws unconstitutional via a RTKL request. We routinely do the former; we have never, and may not,
do the latter.
18
42 Pa. C.S. §§ 7531-7541.
13
In sum, Petitioners are attempting to do an end run around the
Department’s regulations by asking this Court to exceed our review under the RTKL
and declare Section 183.14(k) of the Department’s regulations unconstitutional. There
is no dispute here that the List is a public record and would otherwise be disclosable
under the RTKL but for Section 183.14(k), which permits disclosure of the List with
the restriction that it cannot be published on the Internet. Petitioners have refused to
comply with that restriction, and, therefore, Section 183.14(k) precludes them from
accessing the List under Section 3101.1 of the RTKL. Our analysis ends here.
The General Assembly did not intend for this Court to take the drastic and
unwarranted additional step of considering in a RTKL appeal whether prevailing laws
that restrict disclosure are themselves unconstitutional and, if so, categorically enter a
declaratory judgment against them. Simply, the RTKL is not designed for that kind of
challenge, and Petitioners’ suggestion that we consider it here is misplaced.19
19
Even if we were to determine that Petitioners’ First Amendment claims properly could
be considered in this appeal, which they cannot, we would in any event conclude that they lack merit.
Petitioners assert that Section 183.14(k) of the regulations is unconstitutional because it restricts their
political speech in violation of the First Amendment. In support, they assert that the List is “inherently
political” and “a tool for political speech and association.” (Petitioners’ Br. at 29, 32.) However, this
bald assertion is far too conclusory and, therefore, insufficient to establish that Petitioners have a right
that warrants First Amendment protections or our immediate review.
The United States Supreme Court has defined core political speech as
involving the “‘interchange of ideas for the bringing about of political
and social changes desired by the people.’” Meyer v. Grant, 486 U.S.
414, 421 [] (1988) (quoting Roth v. U.S., 354 U.S. 476, 484 [] (1957));
see also New York Times Co. v. Sullivan, 376 U.S. 254, 269 [] (1964).
Political speech includes “discussions of candidates, structures and
forms of government, the manner in which government is operated or
should be operated, and all such matters relating to political processes.”
Mills v. Alabama, 384 U.S. 214, 218-19 [] (1966). The Supreme Court
has also described political speech as “interactive communication
concerning political change.” Meyer, 486 U.S. at 422[].
(Footnote continued on next page…)
14
. . . There are many examples of the Court upholding several different
forms of political speech, including political speech made by
corporations, public policy discussions, derogatory comments about
the government, speech in the context of political campaigns, and even
defamatory speech about public officials or matters of public concern.
See Citizens United [v. Federal Election Commission, 558 U.S. [310,]
365 [] (2010) (holding that “the Government may not suppress political
speech on the basis of the speaker’s corporate identity”);
Consol[idated] Edison Co. of New York, Inc. v. Pub[lic] Serv[ice]
Comm[ission] of New York, 447 U.S. 530, 544 [] (1980) (striking down
a regulation prohibiting utility companies from placing inserts into
customer bills discussing public policy); Cohen v. California, 403 U.S.
15, 26 [] (1971) (reversing a conviction for speaking a four-letter
expletive critical of the draft); Monitor Patriot Co. v. Roy, 401 U.S.
265, 272 [] (1971) (protecting speech in the context of campaigns for
political office); New York Times, 376 U.S. at 283 [] (protecting
defamatory falsehoods made against public officials unless proven
statement was made with actual malice).
Kuwait & Gulf Link Transport Company v. Doe, 92 A.3d 41, 46-47 (Pa. Super. 2014). See also,
Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345, 385 (Pa. 2020) (poll watching “does not
implicate core political speech”); Republican Party of Pennsylvania v. Cortes, 218 F. Supp. 3d 396,
415 (E.D. Pa. 2016) (content of poll watcher’s speech cannot be characterized as political speech
because when a poll watcher reports incidents of potential violations of the Election Code during the
conduct of an election, he neither facilitates public discussion of a political issue nor advocates for a
particular candidate, issue, or viewpoint).
In Kuwait, a “Scott Wilson” (a/k/a John Doe) wrote letters (the Wilson Letters) to two
government agencies responsible for the operation of the United States military to inform them that
he believed that Kuwait & Gulf Link Transport Co., KGL Logistics, and KGL Transportation Co.
K.S.C.C., a government contractor, maintained business relationships with Iranian entities in
violation of the Comprehensive Iran Sanctions, Accountability, and Divestment Act. KGL then filed
suit against a competitor, Agility, and Scott Wilson alleging, inter alia, liability for defamation.
During discovery, Agility objected to requests that sought to identify “Scott Wilson” based on its
First Amendment right to speak anonymously and pseudonymously. Now Justice Donohue, writing
for the Superior Court, explained that the Wilson Letters constituted political speech “because the
award of substantial government contracts to contractors who are claimed to illegally engage in
business with a prohibited foreign government directly implicates the manner in which government
is operated or should be operated.” Id. at 49. The Superior Court also concluded that the Wilson
Letters “discussed affairs of government, which are at the heart of First Amendment protection” and
that they represent political speech involving the operation of the government and the questionable
expenditure of public funds. That court also concluded that the Wilson Letters directly implicated the
(Footnote continued on next page…)
15
IV. CONCLUSION
Because we conclude that the OOR did not err in denying Petitioners’
RTKL appeal and that Petitioners’ NVRA argument was waived and their First
Amendment claims are not reviewable by this Court, we affirm the OOR’s Final
Determination.
________________________________
PATRICIA A. McCULLOUGH, Judge
President Judge Cohn Jubelirer, Judge Covey, and Judge Wallace concur in the result
only.
appropriateness of the relationship between the United States Government and some of its contractors
and those contractors’ relationships with a foreign government in conflict with the United States. Id.
at 49-50.
Contrary to the above, Petitioners do not explain exactly how the regulation’s
prohibition against publishing the List on the Internet infringes on their right to political expression.
Petitioners set forth no facts whatsoever that explain how publication of the List on the Internet would
further their right to engage in political speech, i.e., how they have been prevented, due to the
regulation, from discussing political candidates, structures or forms of government, the manner in
which government is operated or should be operated, the expenditure of public funds, or political
change. Kuwait. Essentially, they ask us, based on a single conclusory statement, to assume that the
regulation infringes on their First Amendment rights. However, without more, we are unable, and
unwilling, to make that leap.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gina Swoboda and Voter :
Reference Foundation, LLC, :
Petitioners :
:
v. : No. 857 C.D. 2022
:
Pennsylvania Department of State :
(Office of Open Records), :
Respondent :
ORDER
AND NOW, this 20th day of October, 2023, the Office of Open
Records’ July 15, 2022 Final Determination is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge