N. Duiker v. PSP (OOR) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neal Duiker, :
Petitioner :
:
v. : No. 1481 C.D. 2021
: Submitted: November 4, 2022
Pennsylvania State Police :
(Office of Open Records), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: March 9, 2023
Neal Duiker (Duiker), pro se, petitions for review of the November 15, 2021,
final determination of the Pennsylvania Office of Open Records (OOR) that denied
his appeal from the Pennsylvania State Police’s (PSP) denial of his request under the
Right-to-Know Law (RTKL).1 Duiker argues OOR erred in its determination that
the requested records were exempt from disclosure. Upon review, we are
constrained to affirm.
BACKGROUND
Duiker submitted a RTKL request to PSP seeking “the investigation file for
Lonene Rogers, [(Rogers)] dob 10/18/51.” Reproduced Record (R.R.) at 8a. In his
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
request, Duiker explained that Rogers went missing in January 1981 and her last
known address was in Meadville, Pennsylvania. Id. Duiker specifically sought “all
police reports, witness statements, photographs, investigative notes and any other
documents relating to [the] case.” Id.
In response, on September 17, 2021, PSP, by its Deputy Agency Open
Records Officer, Lisa M. Ferguson (Agency Officer Ferguson) denied Duiker’s
request under the RTKL’s investigative exemption,2 personal-identification
exemption,3 victim information exemption,4 and the Criminal History Record
Information Act (CHRIA).5 R.R. at 9a. In support of the denial, Agency Officer
2
Section 708(b)(16) of the RTKL exempts from disclosure “[a] record of an agency relating to or
resulting in a criminal investigation.” 65 P.S. § 67.708(b)(16).
3
Section 708(b)(6)(i)(A) of the RTKL exempts from disclosure records containing “confidential
personal identification numbers,” including “home, cellular or personal telephone numbers.” 65
P.S. § 67.708(b)(6)(i)(A).
4
Section 708(b)(16)(v) of the RTKL specifically exempts from disclosure “[v]ictim information,
including any information that would jeopardize the safety of the victim.” 65 P.S. §
67.708(b)(16)(v).
5
18 Pa.C.S. §§ 9101–9183. CHRIA prohibits the dissemination of “investigative information” to
individuals other than criminal justice agencies. 18 Pa.C.S. § 9106(c)(4). Under CHRIA, a
“criminal justice agency” is defined as:
Any court, including the minor judiciary, with criminal jurisdiction or any other
governmental agency, or subunit thereof, created by statute or by the State or
Federal constitutions, specifically authorized to perform as its principal function
the administration of criminal justice, and which allocates a substantial portion of
its annual budget to such function. Criminal justice agencies include, but are not
limited to: organized State and municipal police departments, local detention
facilities, county, regional and State correctional facilities, probation agencies,
district or prosecuting attorneys, parole boards, pardon boards, the facilities and
administrative offices of the Department of Public Welfare that provide care,
guidance and control to adjudicated delinquents, and such agencies or subunits
thereof, as are declared by the Attorney General to be criminal justice agencies as
(Footnote continued on next page…)
2
Ferguson verified she searched through PSP records and found the following
responsive PSP record: PSP Initial Crime Report No. E5-201075 (Criminal Incident
Report). Id. at 11a. Agency Officer Ferguson indicated that she personally
examined the Criminal Incident Report and its supporting attachments, including
“witness statements, photographs, and investigative notes” and “found it to be
manifestly related to a criminal investigation.” Id. She stated the Criminal Incident
Report is a “multiple page record assembled by Trooper John Marin on or after
January 7, 1981, as a result of an investigation into a criminal incident or an
allegation of criminal wrongdoing.” Id.
Duiker appealed PSP’s response denying the release of the Criminal Incident
Report to the OOR. First, Duiker challenged PSP’s assertion that the records he
requested related to or resulted from a criminal investigation. Specifically, Duiker
stated, “the family of [Rogers] believes [PSP] has never formally elevated the
disappearance of [Rogers] into a criminal case” and asserts PSP has admitted the
case is a “mere missing person case.” R.R. at 28a. Duiker went on to indicate that
“a quick search of PA criminal codes did not render a criminal statute indicating
being a missing person was a crime.” Id. Therefore, Duiker claimed the RTKL’s
investigative exemption did not exempt “an investigative file simply because it has
the potential of becoming a criminal investigation.” Id. Similarly, Duiker asserted
CHRIA did not apply because “although the investigation included a criminal
explanation for her disappearance, it is believed this portion of [PSP’s] investigation
was a natural branching of their investigation, rather than a formal or informal
determined by a review of applicable statutes and the State and Federal
Constitutions or both.
18 Pa. C.S. § 9102.
3
inquiry of a criminal incident or allegation of criminal wrongdoing.” Id. at 29a.
Duiker argued “the case never passed the threshold of criminality, rather maintained
status as a missing persons case.” Id. Finally, Duiker argued that because Rogers
had been missing for over 40 years, while the investigation remained open, “[PSP’s]
effort [could] hardly be characterized as ongoing.” Id. at 30a.
In addition to his basis of appeal, Duiker also submitted various newspaper
clippings and screenshots of websites referencing Rogers’ disappearance and PSP’s
investigation, as well as a letter from Allison Duiker, Rogers’ daughter. In her letter,
Allison Duiker indicates she was five years old at the time of Rogers’ disappearance.
Allison Duiker maintains the investigation into Rogers’ disappearance has never
been classified or referred to as “anything other than a ‘Missing Person Case.’” R.R.
at 32a.
In response to Duiker’s appeal, PSP argued the Criminal Incident Report
is the documented PSP investigation into a complaint of criminal
activity or an allegation of criminal wrongdoing and contains
investigative information. As can be expected, this responsive record
contains personal identifying information, and reflects the findings and
conclusions, as well as actions, observations, and notes of investigating
troopers. This report is comprised of the initial crime report and
supplemental investigative reports or components further detailing the
open and ongoing PSP investigation into the January 7, 1981
disappearance of [Rogers].
R.R. at 50a. Additionally, PSP submitted a verification of its Agency Open Records
Officer, William A. Rozier, (Agency Officer Rozier) confirming the Criminal
Incident Report is “manifestly related to a criminal investigation.” R.R. at 53a.
Agency Officer Rozier “determined the requested record was created, received or
retained pursuant to the documentation of a PSP investigation into a complaint of
potential criminal activity concerning a missing person.” Id. Agency Officer Rozier
4
specified the Criminal Incident Report is a “180-page document compiled by
multiple PSP [troopers] concerning [a] PSP investigation into a missing person.” Id.
On November 15, 2021, OOR issued its Final Determination, which denied
Duiker’s appeal. R.R. at 62a. OOR concluded that based on the evidence provided,
PSP proved the withheld Criminal Incident Report and supporting attachments and
documents are related to a criminal investigation and, therefore, exempt under the
RTKL. Id. at 61a.
Duiker now petitions this Court for review. First, Duiker asserts OOR denied
Duiker “due process by failing to address the issue of fact that the investigative file
relating to [Rogers] is a criminal investigative file permitting to exemption of RTKL
disclosure.” Duiker’s Br. at 3. Second, Duiker contends OOR erred in its
determination that the missing person file of Rogers is a criminal file exempted under
the RTKL’s investigative exemption under Section 67.708(b)(16). Id. at 4. Third,
Duiker argues OOR’s determination that the Rogers file is exempted under CHRIA
is an error. Id. Finally, Duiker asserts OOR erred because PSP is being
“disingenuous in using ‘ongoing investigation’ justification as a means to prevent
disclosure of the records.” Id.
In response, PSP argues OOR correctly determined the Criminal Incident
Report is exempt from public disclosure under the RTKL. PSP Br. at 7. Specifically,
PSP contends the requested records are exempt because they relate to or resulted
from a criminal investigation and are therefore exempt from disclosure pursuant to
65 P.S. § 67.708(16). Id. PSP contends it met its burden of proving the Criminal
Incident Report is not a “public record” under the RTKL through the verifications it
submitted, which were properly accepted as true by the OOR. Id. at 9.
5
DISCUSSION
When reviewing determinations made by appeals officers under the RTKL,
our standard of review is de novo, which we have explained is “full consideration of
a case at another time.” Passel v. Dep’t of Transp., Bureau of Driver Licensing, 928
A.2d 381, 383 (Pa. Cmwlth. 2007). Our scope of review is plenary. Bowling v. Off.
of Open Recs., 75 A.3d 453 (Pa. 2013). In other words, our review includes
consideration of the entire record. Probst v. Dep’t. of Transp., Bureau of Driver
Licensing, 849 A.2d 1135, 1139 n.5 (Pa. 2004).
Due Process
Before reaching the merits, we consider Duiker’s due process claim. Duiker
argues OOR denied him due process “by failing to address the issue of fact that the
investigative file relating to [Rogers] is a criminal investigative file permitting to
exemption of RTKL disclosure.” Duiker’s Br. at 3. While Duiker frames this issue
as a denial of due process, Duiker specifically indicates he “DOES NOT claim an
evidentiary hearing or in camera reviews as a matter of due process right.” Id.
at 13 (emphasis in original). Instead, Duiker argues “OOR blithely accept[ed] the
sworn verification of PSP as material fact without any further analysis” and PSP’s
“verifications [were] conclusory in nature.” Id. at 10-11.
In the RTKL context, due process requires the parties be provided with notice
and an opportunity to present evidence to the fact-finder. Wishnefsky v. Dep’t of
Corr., 144 A.3d 290, 295 (Pa. Cmwlth. 2016). It is well-established that OOR is not
required to hold a hearing. United Healthcare of Pa., Inc. v. Baron, 171 A.3d 943,
952 (Pa. Cmwlth. 2017) (citation omitted). Here, Duiker was provided an
opportunity to submit evidence and his position statement to OOR, the fact-finder in
these proceedings, which he did. He was able to respond to PSP’s arguments and
6
develop a record as to his allegations regarding the requested records. Because
Duiker identified no flaws in the process before OOR, in which he fully participated,
we discern no due process violation. Discerning no due process violation, we turn
to the merits of Duiker’s arguments.
The RTKL
The RTKL requires Commonwealth agencies, like PSP, to provide access to
public records upon request. 65 P.S. § 67.301 (“A Commonwealth agency shall
provide public records in accordance with this act.”). A “public record” is defined
under the RTKL as a “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 or regulation or judicial order or decree; or (3) is not protected
by a privilege.” 65 P.S. § 67.102. A “record” is further defined as:
Information, regardless of physical form or characteristics, that
documents a transaction or activity of an agency and that is created,
received or retained pursuant to law or in connection with a transaction,
business or activity of the agency. The term includes a document, paper,
letter, map, book, tape, photograph, film or sound recording,
information stored or maintained electronically and a data-processed or
image-processed document.
Id.
Turning to the relevant exemptions, the “burden of proving that a record of a
Commonwealth agency…is exempt from public access shall be on the
Commonwealth agency…receiving a request by a preponderance of the evidence.”
65 P.S. § 67.708(a)(1). An agency can meet its burden of proof through
affidavits. Moore v. Off. of Open Recs., 992 A.2d 907, 909 (Pa. Cmwlth. 2010).
This Court has approved of OOR’s use of testimonial affidavits in rendering
decisions, see Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520 (Pa. Cmwlth.
2011), and has specifically held that the credible testimonial affidavit of a deputy
7
open records officer at PSP is sufficient to support a claimed exemption. Mitchell
v. Off. of Open Recs., 997 A.2d 1262 (Pa. Cmwlth. 2010). We interpret the RTKL’s
exemptions in a manner consistent with the statute’s objective, “which is to empower
citizens by affording them access to information concerning the activities of their
government.” Pa. State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017) (quoting SWB
Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012)).
Relevant to this appeal, the RTKL exempts the following records from
disclosure:
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.
8
(D) Hinder an agency’s ability to secure an arrest,
prosecution or conviction.
(E) Endanger the life or physical safety of an individual.
This paragraph shall not apply to information contained in a police
blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and
utilized or maintained by the Pennsylvania State Police, local, campus,
transit or port authority police department or other law enforcement
agency or in a traffic report except as provided under 75 Pa.C.S. §
3754(b) (relating to accident prevention investigations).
65 P.S. § 67.708(b)(16).
We have previously held that police incident reports, as criminal investigative
reports, are investigative materials and fall within the RTKL’s investigative
exemption at Section 708(b)(16)(ii). Pa. State Police v. Off. of Open Recs., 5 A.3d
473, 479 (Pa. Cmwlth.), appeal denied, 76 A.3d 540 (Pa. 2010). Because
investigative materials fall within the exemption, investigative materials are not
public records and, therefore, are not subject to disclosure. Id. at 479. Further, we
have specified that where the exemption applies, the entire investigative report falls
within the RTKL’s investigative exemption and is not subject to public disclosure.
65 P.S. § 67.706(b)(16); Hunsicker v. Pa. State Police, 93 A.3d 911, 913 (Pa.
Cmwlth. 2014).
Here, Duiker is requesting records that pertain to the investigation of Rogers’
disappearance. In fact, in his request, Duiker specifically requests: “the investigation
file” and “all police reports, witness statements, photographs, investigative notes and
any other documents relating to [the] case.” R.R. at 8a. According to Agency
Officer Ferguson and the affidavit of Agency Officer Rozier, the Criminal Incident
Report is a multi-page report, which includes witness statements, photographs, and
investigative notes assembled by Trooper John Marin and other investigating
9
troopers on or after January 7, 1981, as a result of an investigation into a possible
criminal incident or allegation of criminal wrongdoing. R.R. at 11a. The Criminal
Incident Report reflects the findings and conclusions, as well as the action,
observations, and notes of multiple investigating troopers. Id. at 12a, 53a. Both
agency officers attested that the Report, if disclosed, would reveal the institution,
progress, and result of a criminal investigation. R.R. at 12a, 53a. Both affirmed
that the Criminal Incident Report does not contain original records of entry, a
chronology of arrest, or other information contained in a police blotter. R.R. at 12a,
53a.
Nevertheless, Duiker contends the Criminal Incident Report should not be
exempt under the RTKL’s investigative exemption for several reasons. First, Duiker
attempts to argue that this Court should not consider PSP’s investigation into
Rogers’ disappearance a “criminal investigation” because Rogers was a missing
person rather than a person accused of having committed a crime. However, as
Agency Officer Rozier attested to, PSP’s investigation was “into a complaint of
potential criminal activity concerning a missing person.” R.R. at 53a. While the
RTKL does not specifically define “criminal investigation,” we will construe the
phrase according to its plain meaning and common usage in compliance with the
Statutory Construction Act. 1 Pa. C.S. § 1903(a). Thus, a criminal investigation is
a systematic examination or official inquiry into activity relating to, involving, or
being a crime. See, e.g., https://www.merriam-webster.com/dictionary/criminal
(last visited March 8, 2023); https://www.merriamwebster.com/dictionary/
investigation (last visited March 8, 2023). Certainly, PSP’s investigation into
Rogers’ disappearance qualifies as an official inquiry into activity that could relate
to or involve criminal activity, regardless of whether the potential crime is solved.
10
Duiker next asserts that because the investigation has been pending for over
40 years and has not resulted in an arrest, the RTKL’s investigative exemption
should not apply. However, we note that the Criminal Incident Report contains
investigative materials, notes, correspondence, and reports, which, if disclosed,
would reveal the institution, progress, or result of the criminal investigation. 65 P.S.
§ 67.708(b)(16). The RTKL does not require criminal charges be filed in order for
a record to be shielded from public disclosure under the RTKL’s investigative
exemption. Additionally, the RTKL does not provide an expiration date for
exemptions. The legislature could easily have included provisions to limit the
RTKL’s exemptions, but it did not. This Court’s “duty to interpret statutes does not
include the right to add words or provisions that the legislature has left out.” Rogele,
Inc. v. Workers’ Comp. Appeal Bd. (Mattson), 969 A.2d 634, 637 (Pa. Cmwlth.
2009).
Upon review of the affidavits, we are satisfied that PSP met its burden of
proving the Criminal Incident Report is exempt under the RTKL’s investigative
exemption from public disclosure. Although we are empathetic to Rogers’ family
members and their desire to learn more about Rogers’ disappearance, this Court is
bound by statutory law and precedent protecting criminal investigative materials
from public disclosure.
We also recognize the love in this family as evidenced by a brother-in-law
authoring a well-compiled pro se brief and zealously advocating for his sister-in-
law, who is the daughter of the missing person. This Court simply does not have the
power to circumvent the law.
11
CHRIA
Duiker also argues that despite OOR not addressing PSP’s argument that the
Criminal Incident Report was exempt from disclosure under CHRIA in its Final
Determination, OOR “by implication . . . accepted [this argument] as true.”6 Duiker
asserts the requested records are not exempt under CHRIA.
Generally, CHRIA governs the collection, maintenance, dissemination, and
receipt of criminal history record information. Mitchell, 997 A.2d at 1265-66.
CHRIA specifically prohibits the dissemination of “investigative information” to
any person or entity other than a criminal justice agent or agency. 18 Pa. C.S. §
9106(c)(4). CHRIA defines “investigative information” as: “Information assembled
as a result of the performance of any inquiry, formal or informal, into a criminal
incident or an allegation of criminal wrongdoing and may include modus operandi
information.” 18 Pa. C.S. § 9102.
Because we have concluded that the Criminal Incident Report contains PSP
investigative materials that document PSP’s investigation of Rogers’ disappearance,
the Criminal Incident Report is “investigative information” and CHRIA prohibits
PSP from disseminating it to any non-criminal justice agent or agency.
CONCLUSION
As discussed above, PSP met its burden in proving that the Criminal Incident
Report relates to a criminal investigation, and that it was assembled in conducting a
criminal investigation. As a result, the Criminal Incident Report is exempt under
6
We acknowledge that OOR did not address PSP’s argument regarding CHRIA in its Final
Determination and, instead, decided the records were exempt based on the RTKL’s investigative
exemption. See OOR’s Final Determination, generally.
12
both the RTKL’s investigative exemption under Section 708(b)(16) and CHRIA.
Accordingly, we affirm OOR’s Final Determination.
______________________________
STACY WALLACE, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neal Duiker, :
Petitioner :
:
v. : No. 1481 C.D. 2021
:
Pennsylvania State Police :
(Office of Open Records), :
Respondent :
ORDER
AND NOW, this 9th day of March 2023, the November 15, 2021, Final
Determination of the Office of Open Records is AFFIRMED.
______________________________
STACY WALLACE, Judge