Gregg Twp. v. M. Grove ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregg Township :
:
v. : No. 1186 C.D. 2017
: Submitted: April 20, 2018
Michelle Grove, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 25, 2018
Michelle Grove (Requester), pro se, appeals an order of the Court of
Common Pleas of Centre County (trial court) denying her Right-to-Know Law1
request for certain footage from security cameras in the Old Gregg School, which is
used for municipal offices. In doing so, the trial court reversed the final
determination of the Office of Open Records (OOR) that the information requested
from Gregg Township (Township) was disclosable. Requester contends that the trial
court erred in holding that the disclosure of the security camera footage would
jeopardize public safety or endanger the physical security of the building.
Concluding that the Township’s affidavit did not support either finding of the trial
court, we reverse.
On December 29, 2016, Requester submitted a written request to the
Township for the
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
12/29/16 security footage of Joel Myers and Doug Bierly
entering and exiting the office and the time in between (one
continuous recording).
Reproduced Record at 3 (R.R. __). On January 23, 2017, the Township denied the
request, asserting that the requested security footage was exempt from disclosure for
the stated reason that its release “would be reasonably likely to jeopardize or threaten
public safety…[,]” and would “create[ ] a reasonable likelihood of endangering the
safety or the physical security of a building….” Section 708(b)(2) and (3) of the
Right-to-Know Law, 65 P.S. §67.708(b)(2), (3).
Requester appealed to the OOR arguing, among other things, that the
Township had previously granted her requests for security footage and that release
of the requested information would not threaten either the public safety or the
building’s security. In response, the Township reiterated its reasons for denying the
request and submitted a sworn attestation of Jennifer Snyder (Snyder affidavit), the
Right-to-Know Officer for the Township, which stated, in relevant part:
18. [T]he Township relies on the relevant security cameras to
ensure safety and verify that the public uses the Old Gregg
School in an appropriate manner.
19. The Township installed the security cameras after a
security assessment by local security officials, including a
police lieutenant and the current Sheriff of Centre
County….
20. After the aforementioned security assessment, the
Township proceeded to install security cameras for safety
and security reasons.
21. While some of the security cameras are conspicuous to
passive users of the building, other security cameras are
not necessarily obvious to passers-by.
22. What is more, the extent to which the security cameras can
capture the activities in the Old Gregg School is unknown
2
to the public, meaning, for example, that users of the Old
Gregg School are unaware of the width of the camera
lenses’ angles.
R.R. 17-18.
The OOR issued a final determination granting Requester’s appeal.
The OOR explained that the area described in the request, i.e., the front of the Old
Gregg School, was public. Further, the Township’s affidavit did not demonstrate
how knowledge of the security camera’s location in this public area would be
reasonably likely to pose a threat.
The Township filed a petition for review with the trial court, asserting
various exceptions under the Right-to-Know Law. By order of July 26, 2017, the
trial court reversed the OOR’s final determination, holding that the security footage
was exempt from disclosure under Section 708(b)(2) and (3) of the Right-to-Know
Law, 65 P.S. §67.708(b)(2), (3). The trial court explained:
[t]he public is permitted to access the building during certain
daytime hours but the building is closed at night, with
surveillance cameras providing the only security. It is reasonably
likely the disclosure would threaten public safety at the Old
Gregg School by exposing the scope of the surveillance coverage
that is unknown to the general public.
***
[Additionally, t]he building is home to the municipal offices and
numerous groups and needs to be properly monitored. Building
security would be impaired and threatened by having the
surveillance coverage exposed and could endanger the safety of
those people using the building.
Trial Court Op., 7/26/2017, at 4. Requester appealed to this Court.2
2
This Court’s review in a Right-to-Know Law appeal determines “whether the trial court
committed an error of law and whether its findings of fact are supported by substantial evidence.”
3
On appeal, Requester raises eight issues for consideration by this
Court.3 Most of Requester’s issues have not been developed in the argument section
of her brief and, thus, will not be addressed. The relevant question Requester has
preserved for appeal is whether the security footage she requested is exempt from
disclosure under Section 708(b)(2) and (3) of the Right-to-Know Law. Requester
argues that disclosure of the limited footage she requested is not “reasonably likely”
to jeopardize public safety. Requester Brief at 14.
We begin with a review of the Right-to-Know Law, which requires
local agencies to provide access to public records upon request. See Section 302(a)
of the Right-to-Know Law, 65 P.S. §67.302(a) (“A local agency shall provide public
records in accordance with this act.”). Records in the possession of a local agency
Paint Township v. Clark, 109 A.3d 796, 803 n.5 (Pa. Cmwlth. 2015). The statutory construction
of the Right-to-Know Law is a question of law, for which our scope of review is plenary, and our
standard of review is de novo. Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa. 2012).
3
They are:
(1) Does [Requester] publish tax lists indicating which residents have and have
not paid taxes?
(2) Is it relevant that [Requester] maintains a website providing public records
relating to the [T]ownship?
(3) Is the disclosure of surveillance video from the hall “reasonably likely” to
threaten public safety?
(4) Is it relevant that the cameras in the hall are in public view?
(5) Is it relevant that surveillance footage of the hall had been disclosed on
multiple occasions in the months leading up to this request?
(6) Is it relevant that [Requester] was permitted into the secure office to video
record directly from the surveillance monitor in those instances?
(7) Is it relevant that the footage requested was from a non-public, non-
advertised meeting between two Supervisors?
(8) Is it relevant that [Requester] was present in the hall during this meeting and
overheard the discussion that took place and the decisions that were made
by the two Supervisors?
Requester Brief at 9.
4
are presumed to be a public record unless exempt under Section 708 of the Right-to-
Know Law, 65 P.S. §67.708; protected by a privilege; or exempt from disclosure
under a federal or state law or judicial order. Section 305(a) of the Right-to-Know
Law, 65 P.S. §67.305(a). The local agency has the burden of proving that a record
is exempt by a preponderance of the evidence. Section 708(a)(1) of the Right-to-
Know Law, 65 P.S. §67.708(a)(1).
Section 708(b)(2) exempts from disclosure records “maintained by an
agency in connection with … law enforcement or other public safety activity that, if
disclosed, would be reasonably likely to jeopardize or threaten public safety or
preparedness or public protection activity[.]” 65 P.S. §67.708(b)(2) (emphasis
added). To satisfy this exemption, the local agency must prove that (1) the record at
issue relates to a law enforcement or public safety activity; and (2) disclosure of the
record would be “reasonably likely” to threaten public safety or a public protection
activity. Carey v. Department of Corrections, 61 A.3d 367, 374-75 (Pa. Cmwlth.
2013). “In interpreting the ‘reasonably likely’ part of the test, as with all the security-
related exceptions, we look to the likelihood that disclosure would cause the alleged
harm, requiring more than speculation.” Id. at 375.
Similarly, Section 708(b)(3) of the Right-to-Know Law exempts from
public access “[a] record, the disclosure of which creates a reasonable likelihood of
endangering the safety or the physical security of a building, public utility, resource,
infrastructure, facility or information storage system….” 65 P.S. §67.708(b)(3)
(emphasis added). “For this exemption to apply, ‘the disclosure of’ the records,
rather than the records themselves, must create a reasonable likelihood of
endangerment to the safety or physical security of certain structures or other entities,
including infrastructures.” Smith on behalf of Smith Butz, LLC v. Pennsylvania
5
Department of Environmental Protection, 161 A.3d 1049, 1062 (Pa. Cmwlth. 2017).
Again, “‘[r]easonably likely’ has been interpreted as ‘requiring more than
speculation.’” Id. at 1062-63 (citing Carey, 61 A.3d at 375).
The Township urges that we affirm the trial court, arguing that its
security cameras are “the only realistic means of ensuring public safety at the Old
Gregg School, and that the security system is the result of a security audit performed
by law enforcement personnel.” Township Brief at 14. The locations of some
security cameras are confidential because they have been placed in inconspicuous
places throughout the building. Even where cameras are visible, the width of the
lens is not obvious to a passerby. The Township contends that the release of even
limited security footage would expose vulnerabilities in the surveillance system and,
thus, endanger public safety.4 Township Brief at 7.
Snyder’s affidavit established that cameras were installed for security
of the building. The question is whether the affidavit established that disclosure of
the requested security camera footage would be “reasonably likely” to threaten
public safety or the security of the building.
First, the Snyder affidavit is silent as to what is depicted on the
requested camera footage. Second, the affidavit refers generally to all the security
cameras at the Old Gregg School and does not explain why the disclosure of specific
footage from one camera will jeopardize the building’s security and the public
safety. Third, the affidavit does not explain how the Township uses the cameras to
enhance public and building safety; for example, the affidavit does not state whether
4
The State Association of Township Supervisors has filed an amicus curiae brief in support of the
Township.
6
the cameras are monitored contemporaneously. Finally, the affidavit does not
address whether any of the information requested can be redacted.
Snyder’s affidavit offers conclusory statements that both public safety
and building security will be jeopardized. Without explaining details, the affidavit
provides no more than speculation. This does not suffice.
The Township acknowledges that it has allowed Requester to view
security footage in the past. The Township argues that this prior act does not
preclude it from asserting the exemption this time. We agree that a prior disclosure,
whether done accidentally or intentionally, does not require repeated disclosure of
similar information. A government agency may correct mistakes; it is not forever
bound to repeat them. Nevertheless, the Township’s prior disclosure undermines its
claim that another disclosure would be dangerous. The Township does not assert,
for example, that its prior disclosure has harmed the public safety or compromised
building security in any way.
The Township complains that Requester publishes public records on
the internet. This is not a valid reason to deny the request. See Section 302(b) of
the Right-to-Know Law, 65 P.S. §67.302(b) (A local agency “may not deny a
requester access to a public record due to the intended use of the public record by
the requester unless otherwise provided by law.”); see also 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….”). Further, if this camera footage is already available online,
then the Township needed to show how the addition of new footage would
undermine building security and public safety.
7
The State Association of Township Supervisors, amicus curiae, directs
this Court to Gilleran v. Township of Bloomfield, 149 A.3d 800 (N.J. 2016), which
considered New Jersey’s version of our Right-to-Know Law. In Gilleran, the
requester sought 14 hours of video footage from a security camera located on the
second floor of the Town Hall that was adjacent to the police station. The township
asserted that the recording was protected under the security exclusions of New
Jersey’s Open Public Records Act.5 It noted that the cameras would likely show
confidential informants or domestic abuse victims going to the police station. A
divided panel of the New Jersey Supreme Court held that “wholesale release” of the
videotape product of a single security camera or a “combination of cameras from a
government facility’s security system would reveal information about a system’s
operation and also its vulnerabilities.” Id. at 810. The dissent agreed with this logic
but concluded that the majority’s holding could not be squared with the plain
language of the statute.
Gilleran provides little instructive value. First, it construes a statute
that is similar but not identical to Pennsylvania’s Right-to-Know Law. Second, it is
distinguishable because the instant case does not involve a “wholesale release” of
videotape product. Requester has sought limited camera footage, not 14 hours of
5
N.J. STAT. ANN. §§ 47:1A-1 - 13. Under Section 47:1A-1.1, a government record does not
include the following information:
***
emergency or security information or procedures for any buildings or facility
which, if disclosed, would jeopardize security of the building or facility or persons
therein;
security measures and surveillance techniques which, if disclosed, would create a
risk to the safety of persons, property, electronic data or software;
***
N.J. STAT. ANN. § 47:1A-1.1.
8
footage. She seeks footage from one camera, not a combination of multiple cameras.
Simply, the Township did not meet its burden of showing more than speculation that
the discrete information sought by Requester will undermine the building’s security
and public safety.
For the above stated reasons, we reverse the trial court’s order.
______________________________________
MARY HANNAH LEAVITT, President Judge
Senior Judge Colins dissents.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregg Township :
:
v. : No. 1186 C.D. 2017
:
Michelle Grove, :
Appellant :
ORDER
AND NOW, this 25th day of June, 2018, the order of the Court of
Common Pleas of Centre County dated July 26, 2017, in the above-captioned matter
is REVERSED.
______________________________________
MARY HANNAH LEAVITT, President Judge