J. Credico v. OAG ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin Credico, :
Petitioner :
: CASE SEALED
v. : No. 251 C.D. 2017
: Submitted: November 17, 2017
Office of Attorney General, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 14, 2018
Justin Credico (Requester) petitions, pro se, for review of a final
determination of the Office of Attorney General affirming, in part, the denial of his
request under the Right-to-Know Law1 for access to documents related to the
Attorney General’s investigation into the misuse of government email
communication systems by public officials. For the reasons that follow, we affirm.
On November 23, 2016, Requester submitted a right-to-know request
to the Attorney General’s office for “information surrounding Kathleen Kane’s
revealing of an email scandal involving numerous officials, which required reports
by your office and another law firm.” Certified Record (C.R.) Document No. 1.
Specifically, Requester sought:
1. All names of the public officials who received in part or in
whole, any inappropriate email corresponding to your office’s
reports and those of the law firm
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
2. All titles of the public officials who were involved in the same
scandal as referenced in #1 above
3. The names of the 2 Pa. Supreme Court Judges who have
already resigned over the issue (see #1 above).
Id. By letter of December 6, 2016, the Attorney General’s Open Records Officer
advised Requester that a legal review was being undertaken to determine whether
the requested records were subject to access. On January 5, 2017, the Open Records
Officer issued a final response denying the request for the following reasons: (1) the
request was insufficiently specific and over broad; (2) the request sought documents
and information that were not records disclosable under the Right-to-Know Law;
and (3) the request did not identify a specific record sought. C.R. Document No. 3.
Requester appealed to the Attorney General’s Right-to-Know Appeals
Officer (Appeals Officer) disputing the finding of insufficient specificity and
asserting that the requested documents were “records” under the Right-to-Know
Law. The Appeals Officer agreed that the request was insufficiently specific but
found that the Attorney General’s office was in possession of a responsive
document, identified as “the ‘Report of Special Deputy Attorney General Douglas
F. Gansler on Misuse of Commonwealth of Pennsylvania Government E-Mail
Communications Systems’ [(Gansler Report)] which identifies the names and titles
of those individuals who sent and/or received allegedly inappropriate emails.” Final
Determination at 3.
The Appeals Officer acknowledged that a redacted version of the
Gansler Report “from which the names and titles of officials had been removed, was
released to the public by the [Attorney General] on November 22, 2016.” Final
Determination at 4. Because Requester’s request sought redacted information that
was not released to the public, the Appeals Officer conducted an in camera review
2
of the unredacted version. Following her in camera review, the Appeals Officer
determined the information was exempt from disclosure under the Right-to-Know
Law for two reasons. First, the unredacted Gansler Report was not disclosable under
the exemption for criminal and noncriminal investigations found in Section
708(b)(16) and (17) of the Right-to-Know Law, 67 P.S. §67.708(b)(16)-(17).
Second, the named individuals in the unredacted report have a right to privacy under
Article I, Section 1 of the Pennsylvania Constitution,2 and their privacy interest
outweighs the public benefit of disclosure. See Pennsylvania State Education
Association v. Department of Community and Economic Development, 148 A.3d 142(Pa. 2016). Accordingly, the Appeals Officer affirmed the Open Records Officer’s
denial of Requester’s request, albeit for different reasons. Requester petitioned this
Court for review.
On appeal,3 Requester asks this Court to “determin[e] whether the
criminal/non-criminal exemption to the Right-to-Know Law applies, and, whether
the privacy exception applies to the information requested.” Requester’s Brief at 5.4
2
It states:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. CONST. art. I, §1.
3
“This Court exercises de novo review of appeals officers’ decisions under the [Right-to-Know
Law] pertaining to Commonwealth Agencies.” Office of Attorney General v. Bumsted, 134 A.3d
1204, 1208 n.8 (Pa. Cmwlth. 2016) (citing Meguerian v. Office of Attorney General, 86 A.3d 924,
927 n.4 (Pa. Cmwlth. 2013)).
4
This is the extent of Requester’s argument in his brief, which fails to conform to nearly every
requirement found in PA R.A.P. 2111-2119 (regarding contents of a brief) and contains no
“Argument” section. See PA R.A.P. 2111(a)(8). The Attorney General did not file a motion to
quash based on these violations of the appellate rules. PA R.A.P. 2101. As such, we review the
arguments set forth in Requester’s petition for review. See Richardson v. Pennsylvania Insurance
3
We begin with a review of the relevant provisions of the Right-to-Know
Law.
Section 102 of the Right-to-Know Law defines a public record as:
A record, including a financial record, of a Commonwealth or
local agency that:
(1) is not exempt under Section 708;
(2) is not exempt from being disclosed under any
other Federal or State law regulation or judicial
order or decree; or
(3) is not protected by a privilege.
65 P.S. §67.102. Section 708(b) of the Right-to-Know Law sets forth several
exemptions from the definition of “public record.” 65 P.S. §67.708(b). Relevant
here are exemptions for an agency record relating to or resulting from a criminal
Department, 54 A.3d 420, 426 (Pa. Cmwlth. 2012) (limiting our review “to those cognizable
arguments we can glean despite the brief’s noncompliance.”).
4
investigation5 and for a record relating to a noncriminal investigation.6 A record that
relates to a criminal or noncriminal investigation is not a “public record” under
Section 102 of the Right-to-Know Law and is therefore exempt from disclosure.
5
Section 708(b)(16) of the Right-to-Know Law states:
(b) Exceptions.--Except as provided in subsections (c) and (d), the following are
exempt from access by a requester under this act:
***
(16) A record of an agency relating to or resulting in a criminal
investigation, including:
(i) Complaints of potential criminal conduct other
than a private criminal complaint.
(ii) Investigative materials, notes, correspondence,
videos and reports.
(iii) A record that includes the identity of a
confidential source or the identity of a suspect who
has not been charged with an offense to whom
confidentiality has been promised.
(iv) A record that includes information made
confidential by law or court order.
(v) Victim information, including any information
that would jeopardize the safety of the victim.
(vi) A record that, if disclosed, would do any of the
following:
(A) Reveal the institution, progress
or result of a criminal investigation,
except the filing of criminal charges.
(B) Deprive a person of the right to
a fair trial or an impartial
adjudication.
(C) Impair the ability to locate a
defendant or codefendant.
(D) Hinder an agency’s ability to
secure an arrest, prosecution or
conviction.
(E) Endanger the life or physical
safety of an individual.
5
65 P.S. §67.708(b)(16) (emphasis added).
6
Section 708(b)(17) of the Right-to-Know Law states:
(b) Exceptions.--Except as provided in subsections (c) and (d), the following are
exempt from access by a requester under this act:
***
(17) A record of an agency relating to a noncriminal investigation,
including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence
and reports.
(iii) A record that includes the identity of a
confidential source, including individuals subject to
the act of December 12, 1986 (P.L. 1559, No. 169),
known as the Whistleblower Law.
(iv) A record that includes information made
confidential by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of the
following:
(A) Reveal the institution, progress
or result of an agency investigation,
except the imposition of a fine or civil
penalty, the suspension, modification
or revocation of a license, permit,
registration, certification or similar
authorization issued by an agency or
an executed settlement agreement
unless the agreement is determined to
be confidential by a court.
(B) Deprive a person of the right to
an impartial adjudication.
(C) Constitute an unwarranted
invasion of privacy.
(D) Hinder an agency’s ability to
secure an administrative or civil
sanction.
6
The Appeals Officer determined that both the criminal and noncriminal
investigation exemptions apply to the unredacted Gansler Report sought by
Requester. Regarding the criminal investigation exemption, she explained that a
private law firm generated the report during the course of an investigation into the
potential misuse of the Commonwealth email system by Commonwealth officials
and employees. The “potential avenues of misuse” included the possible
transmission of sexually explicit, racially or otherwise discriminatory material, as
well as improper disclosure of criminal investigative or grand jury material. Final
Determination at 5. Because of the nature of the alleged use of the email system, the
Appeals Officer concluded that “[u]nquestionably, an investigation of a criminal
nature was contemplated, and did, in fact occur.” Id. The Appeals Officer noted:
Even if, after reviewing the final results of [the law firm’s]
investigation and their [sic] recommendations, criminal charges
are not forthcoming does not change the underlying nature of the
original investigation – to determine whether crimes occurred
with the alleged misuse of the Commonwealth’s email system.
Id. The Appeals Officer further determined that the noncriminal investigation
exemption also applied because the Attorney General generated the Gansler Report
for the dual purpose of conducting an official investigation into potential misconduct
by its employees. Id.
In his petition for review before this Court, Requester argues that the
unredacted Gansler Report is not exempt under the “law enforcement investigation”
exemption, which we construe as a challenge to the criminal investigation exemption
in Section 708(b)(16) of the Right-to-Know Law. 65 P.S. §67.708(b)(16).
(E) Endanger the life or physical
safety of an individual.
65 P.S. §67.708(b)(17).
7
Requester does not challenge the Appeals Officer’s finding that the unredacted
report relates to a criminal investigation by the Attorney General; he maintains that
it is now subject to disclosure because there are “no longer any further investigations
or prosecutions forthcoming.” Petition for Review at 2.2. The Attorney General
responds that the Right-to-Know Law does not limit the criminal investigation
exemption to records related to active investigations.
We agree with the Attorney General. The language of Section 708 of
the Right-to-Know Law does not support Requester’s interpretation that reports and
other documents relating to criminal investigations become subject to disclosure
after the investigation is closed. To the contrary, Section 708 exempts from
disclosure records and reports relating to criminal investigations regardless of the
status of the investigation. Indeed, this Court has specifically stated: “[c]riminal
investigative records remain exempt from disclosure under the [Right-to-Know
Law] even after the investigation is completed.” Barros v. Martin, 92 A.3d 1243,
1250 (Pa. Cmwlth. 2014).
Because the unredacted Gansler Report is a “record of an agency
relating to or resulting in a criminal investigation,” it is exempt from disclosure
under the criminal investigation exemption found in Section 708(b)(16)(ii) of the
Right-to-Know Law. 65 P.S. §67.708(b)(16)(ii). For this reason, the Appeals
Officer’s final determination is affirmed.7
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
Based on our disposition, we need not reach Requester’s additional arguments.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin Credico, :
Petitioner :
: CASE SEALED
v. : No. 251 C.D. 2017
:
Office of Attorney General, :
Respondent :
ORDER
AND NOW, this 14th day of February, 2018, the final determination of
the Office of Attorney General dated February 16, 2017 in the above-captioned
matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge