PA Dept. of L&I v. J.E. O'Connor ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Department of Labor :
and Industry, :
Petitioner :
:
v. : No. 1477 C.D. 2019
: Submitted: August 7, 2020
:
Joseph E. O’Connor, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORADUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 22, 2021
The Pennsylvania Department of Labor and Industry (Department) petitions
for review of the September 25, 2019 Final Determination of the Office of Open
Records (OOR), which granted Joseph E. O’Connor’s (Requester) appeal of the
Department’s denial of his Request for elevator inspection reports under the Right-
to-Know Law (RTKL).1 OOR ordered the Department to provide Requester with
all responsive records within 30 days of the Final Determination. On appeal to this
Court, the Department argues that OOR’s Final Determination should be reversed
or vacated and this matter remanded because: OOR modified Requester’s Request
when it incorrectly assessed the nature of the records requested; OOR erred when it
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
determined that the Uniform Construction Code2 (UCC) does not make the records
confidential; OOR incorrectly interpreted this Court’s precedent regarding
noncriminal investigations; and OOR neglected to follow its own precedent
regarding the UCC and elevators without providing an adequate reason for doing so.
Upon review, we vacate and remand for OOR to develop an evidentiary record and
apply this Court’s recent decision in Pennsylvania Department of Labor & Industry
v. Darlington, 234 A.3d 865 (Pa. Cmwlth. 2020).
I. BACKGROUND
On August 12, 2019, Requester filed a Request with the Department’s Agency
Open Records Officer seeking “all the elevator inspection reports (pass or fail) for
modernization & construction jobs in the [C]ity of Philadelphia from January 1st
2017[,] to August 12th 2019.” (Reproduced Record (R.R.) at 10a.) The Department
denied the Request, stating “records of the Department relating to a noncriminal
investigation . . . and records that would reveal the institution, progress, or result of
a Department investigation are exempt from disclosure under the RTKL.” (Id. at
11a.) The Department also noted that the records did not fall within any exception
to the noncriminal investigation exemption, specifically that the records did not
include any indication of an “imposition of a fine or civil penalty; the suspension,
modification, or revocation of a license, permit, registration, certification, or similar
authorization; or an executed settlement agreement.” (Id.)
On August 26, 2019, Requester appealed to OOR stating that “[t]he records
that I have requested do not fall within any exception from disclosure listed in the
statute.” (Id. at 8a-9a.) The Department issued a response stating that “[b]ecause
the weight of the evidence establishes that the requested records are exempt from
2
34 Pa. Code §§ 405.1-405.12.
2
disclosure, the Department’s denial should be affirmed.” (Id. at 19a.) The
Department explained that under the Pennsylvania Construction Code Act3 (Act)
and the UCC, the Department is to conduct an “acceptance inspection” for a new or
repaired elevator as well as “periodic inspections,” and produce reports on these
inspections, and that OOR previously determined the Department’s “inspection and
investigatory records are investigative materials that would reveal the institution,
progress or result of such investigations.” (Id. at 20a (citing Lombardo v. Pa. Dep’t
of Labor & Indus. (Pa. O.O.R.D., No. AP 2017-0054, Feb. 7, 2017); Holden & CBS
3 KYW-TV v. Pa. Dep’t of Labor & Indus. (Pa. O.O.R.D., No. AP 2016-1490, Nov.
1, 2016); and Groen v. Pa. Dep’t of Labor & Indus. (Pa. O.O.R.D., No. AP 2011-
1148, Sept. 26, 2011)).) In addition, the Department produced an attestation by
Matthew W. Kegg, Director of the Department’s Bureau of Occupational and
Industrial Safety (BOIS). (Id.) Mr. Kegg stated that BOIS conducted a thorough
examination of the files for records responsive to the Request, which led BOIS to
determine that the “records exist and were created solely because of the
Department’s statutory mandate to inspect the elevators” and thus fall under the
noncriminal investigation exemption. (Id. at 20a, 22a-23a.)
OOR contacted the parties, seeking additional information as to whether any
of the inspection reports were generated after an accident report was received for
any given elevator. (Id. at 26a.) In response to the request, the Department provided
an additional attestation by Mr. Kegg stating that “[s]ome of the elevator inspections
are regular inspections performed on a periodic basis,” while others “are the direct
result of an elevator incident or a complaint.” (Id. at 29a.) Mr. Kegg noted he could
not provide an exact number due to the “hundreds if not thousands of elevators” in
3
Act of November 10, 1999, P.L. 491, 35 P.S. §§ 7210.101-7210.1103.
3
Philadelphia and the lack of ability to track the type of inspection with the current
“electronic record-keeping system.” (Id.) Based on Mr. Kegg’s experience, he
concluded that “the Department has conducted multiple elevator inspections and
investigations in the [C]ity of Philadelphia in response to an incident or complaint
during the time period specified in the [R]equest underlying this appeal.” (Id. at
30a.)
Although the parties did not request a hearing, pursuant to Section 1101(b)(1)
of the RTKL, 65 P.S. § 67.1101(b)(1),4 OOR sought an extension of time to make
its Final Determination from Requester “in order to hold a hearing and to develop
the record further.” (Final Determination at 3.) When Requester did not respond to
OOR’s request, “OOR relied on the evidence before it to render a decision in this
matter.”5 (Id.) The Final Determination granted Requester’s appeal and directed the
Department to provide all responsive records within 30 days. OOR found that the
UCC and the Act empower the Department to perform acceptance and periodic
inspections on elevators under its jurisdiction. (Id. at 4-5.) In reviewing the evidence
before OOR, including the attestations of Mr. Kegg, OOR concluded that the
inspections “do not rise to the level of a noncriminal investigation.” (Id. at 5.) In
4
Section 1101(b)(1) states that “[u]nless the requester agrees otherwise, the appeals officer
shall make a final determination which shall be mailed to the requester and the agency within 30
days of receipt of the appeal . . . .” 65 P.S. § 67.1101(b)(1).
5
Attached to both the Department’s petition for review and brief is an email sent from
OOR to the parties, in which OOR sought Requester’s permission to extend the deadline for OOR’s
issuance of a final determination in order to hold a hearing. Although this email is not in the
certified record, Requestor has not objected to the email or challenged its authenticity.
Accordingly, in the interests of justice, we will treat it as part of the record on appeal. See Moyer
v. PPL Elec. Utils. Corp. (Pa. Cmwlth., No. 587 C.D. 2019, filed Oct. 23, 2020), slip op. at 9 n.11
(citing M.A. Bruder & Son, Inc. v. Workmen’s Comp. Appeal Bd. (Harvey), 485 A.2d 93, 95 n.2
(Pa. Cmwlth. 1984)). Moyer is cited as persuasive authority pursuant to Rule 126(b)(1) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b)(1), and Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
4
reaching this conclusion, OOR set forth the standard for noncriminal investigations,
as established by this Court in Department of Health v. Office of Open Records, 4
A.3d 803 (Pa. Cmwlth. 2010). Specifically, OOR explained that, to constitute a
noncriminal investigation, “an agency must demonstrate that ‘a systematic or
searching inquiry, a detailed examination, or an official probe’ was conducted
regarding a noncriminal matter,” which was “‘conducted as part of an agency’s
official duties.’” (Final Determination at 4 (quoting Dep’t of Health, 4 A.3d at 810-
11, 814).) Furthermore, OOR stated that “the investigation must specifically involve
an agency’s legislatively granted fact-finding powers.” (Id. at 5.)
OOR explained that the UCC clearly differentiates between inspections and
investigations and there is no evidence that elevator inspections are similar to the
previous inspections analyzed by this Court, such as in Department of Health. (Id.
at 6-7.) “Unlike [] [Department] of Health,” OOR reasoned, “the [UCC] requires
that an inspection report contain only the inspection results, date of inspection,
beginning and conclusion times of inspection, construction code official’s
certification number[,] and electronic signature.” (Id. at 6.) OOR also differentiated
this current matter from prior OOR cases involving elevators on the basis that those
cases specifically involved inquiries made following incidents and injuries. (Id. at
7.) OOR stated that “the Department has not provided any evidence demonstrating
that the requested inspection reports relate to” an investigation made in connection
to an accident or report. (Id. at 8.) Therefore, OOR concluded that the Department
had not met its burden of proving that the reports fall under the noncriminal
investigation exemption. The Department filed a Petition for Reconsideration,
asserting the same issues it raises to this Court and requesting a hearing. OOR
5
denied the Petition for Reconsideration. The Department thereafter filed a petition
for review with this Court.
II. DEPARTMENT’S ARGUMENTS
On appeal,6 the Department argues that OOR erred by concluding that the
elevator inspection records did not relate to a noncriminal investigation. First, the
Department contends that “OOR misconstrued the nature of the records requested”
and, thus, erroneously modified the Request. (Department’s Brief (Br.) at 11.) The
Department reasons that the Request sought inspections related to a “construction
job” or “modernization” job, and, therefore, must be referring to a new elevator or
an elevator that was under repair. (Id. at 12-13.) Thus, the Department asserts that
the Request sought only the acceptance inspections outlined in Section 405.5 of the
UCC, 34 Pa. Code § 405.5, not the periodic inspections under Section 405.7 of the
UCC, 34 Pa. Code § 405.7. (Id. at 12.) The Department cites to OOR’s multiple
references to the requested records as “routine” or “periodic” inspections to support
this argument. (Id. at 13 (citing R.R. at 37a-39a).) For further support, the
Department contends that OOR only discussed the requirements of periodic
inspection reports in its Final Determination. (Id. at 14.) The Department argues
that there is a difference between acceptance inspections and periodic inspections.
For instance, the Department asserts “acceptance inspections[] are significantly
more extensive than periodic inspections and entail more elaborate investigative
6
Our scope of review of the RTKL is plenary. Pa. Pub. Util. Comm’n v. Gilbert, 40 A.3d
755, 758 n.5 (Pa. Cmwlth. 2012). Our standard of review in open records cases is an independent
review of OOR’s final determination, and we may substitute OOR’s findings of fact with our own.
Id. “A court reviewing an appeal from an OOR hearing officer is entitled to the broadest scope of
review, a review of the entire record on appeal along with other material, such as a stipulation of
the parties, or an in camera review of the documents at issue, and we may further supplement the
record through hearing or remand.” Id.6
procedures.” (Id. at 15.) As a result, acceptance inspections may only be conducted
by Departmental inspectors, whereas periodic inspections may be completed by
licensed third-party inspectors. (Id.) The Department also contends that acceptance
inspection reports contain more detailed information than periodic inspection reports
and list deficiencies that are found. (Id. at 15-16.)
Because of OOR’s mistake in expanding the scope of the Request, the
Department asserts that OOR erred in determining that Section 403.85(e) of the
UCC, 34 Pa. Code § 403.85(e), which prohibits disclosure of certain construction
related records, does not apply. The Department argues that acceptance inspection
reports qualify as construction-related records and are not subject to the RTKL. (Id.
at 16-17.)
Next, the Department contends that OOR erred in finding that elevator
inspections do not rise to the level of a noncriminal investigation. (Id. at 21.)
Specifically, the Department reiterates its argument that the only type of inspection
here is an acceptance inspection. (Id.) Furthermore, the Department asserts that
OOR’s Final Determination is inconsistent with Department of Health,
Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755 (Pa. Cmwlth.
2012), Department of Environmental Protection v. Delaware Riverkeeper Network,
113 A.3d 869 (Pa. Cmwlth. 2015), and Michak v. Department of Public Welfare, 56
A.3d 925 (Pa. Cmwlth. 2015), because those cases have found that a “triggering
event” is not required for an “official probe” to qualify as a “noncriminal
investigation.” (Id. at 21-27.) The Department also asserts that OOR’s Final
Determination improperly relied on public policy arguments that only apply to
periodic inspection reports and not acceptance inspection reports. (Id. at 27-28.)
The Department contends that OOR was incorrect in finding that allowing the public
7
access to the records would incentivize the Department and owners to alleviate any
issues with inspections. (Id. at 28.) Instead, the Department asserts that the incentive
is already there without this public policy argument because the elevators cannot be
put into service without passing an acceptance inspection. (Id.)
Lastly, the Department argues that OOR’s attempt to differentiate this case
from OOR’s own previous elevator cases was inadequate. (Id. at 29.) The
Department argues that in all prior cases regarding an elevator incident or accident,
“OOR found that all elevator inspection reports, including those not conducted in
response to the incident or accident, were found to be exempt from disclosure.” (Id.
(emphasis in original).) The Department contends that “[i]n the present case[,] as
well as in prior OOR determinations, the responsive records relate to the
Department’s investigation into the condition and operation of elevators and are
conducted for the purpose of ensuring the safety of passengers who utilize the
elevators.” (Id. at 31.)
Requestor did not submit a brief in this matter and was precluded from doing
so due to noncompliance with the briefing schedule.
III. DISCUSSION
A Commonwealth agency’s records are presumed to be public unless they fall
within an exemption under the RTKL. Gilbert, 40 A.3d at 758. An agency is
permitted to withhold “[a] record of [the] agency relating to a noncriminal
investigation,” which includes “investigative materials, notes, correspondence[,] and
reports,” and records that would “[r]eveal 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 “[c]onstitute an unwarranted invasion of
8
privacy.” Section 708(b)(17)(ii), (vi)(A), and (vi)(C) of the RTKL, 65 P.S.
§ 67.708(b)(17)(ii), (vi)(A), and (vi)(C). However, neither the term “noncriminal”
nor the term “investigation” are defined by the RTKL. In previous cases, this Court
interpreted “noncriminal” to mean “the exemption of investigations other than those
that are criminal in nature.” Gilbert, 40 A.3d at 759 (citing Dep’t of Health, 4 A.3d
at 810). The Court has interpreted an “investigation” to mean “a systematic or
searching inquiry, a detailed examination, or an official probe.” Dep’t of Health,
4 A.3d at 811. The burden is on the Department to prove, by a preponderance of the
evidence,7 that the records requested are exempt from disclosure. See 65 P.S.
§ 67.708(a)(1).
This Court recently addressed the noncriminal investigation exemption of the
RTKL in Darlington. There, we considered whether inspections of boilers, which
are also performed by the Department, can be considered noncriminal investigations
and, thus, exempt from disclosure. The requester sought records, including
inspection and investigation reports, relating to an incident which occurred at an
energy plant. The Department denied this request, claiming the inspections and
investigations were conducted pursuant to its authority under the Boiler and Unfired
Pressure Vessel Law (Boiler Law),8 and, therefore, were exempt as noncriminal
investigations and none of the exceptions to the exemption applied. Darlington, 234
A.3d at 868. The requester appealed to OOR, challenging the “blanket denial.” Id.
The Department filed a position statement and proffered the attestations of Mr.
Kegg, who stated that these records fell under the noncriminal investigation
7
“The preponderance of the evidence standard, which is ‘the lowest evidentiary standard,
is tantamount to a more likely than not inquiry.’” Smith on behalf of Smith Butz, LLC v. Pa. Dep’t
of Env’t Prot., 161 A.3d 1049, 1059 n.10 (Pa. Cmwlth. 2017) (citation omitted).
8
Act of June 18, 1998, P.L. 655, 35 P.S. §§ 1331.1-1331.18.
9
exemption. Id. Furthermore, Mr. Kegg also stated that some of the inspections were
“performed on a periodic basis,” while others were the result of an “incident or a
complaint.” Id. at 869. OOR determined that the records related to the investigation
into the boiler incident were exempt as records of a noncriminal investigation, and
ordered the field boiler inspection reports to be released. This Court affirmed.
For the noncriminal investigation exemption to apply, the Court held the
Department must show how that inspection “surpass[es] the [Department]’s routine
performance of its duties.” Id. at 877 (citation omitted). Of note and crucial to our
determination in that case, this Court examined the Boiler Law and concluded that
the law clearly distinguished between a “field inspection” and an “investigation”
within the law itself, as different sections utilized these two different terms. Id. at
875. We also highlighted that field inspections need not be performed by the
Department and instead may be performed by an outside inspector. Id. at 875-76.
Furthermore, field inspections themselves, and what they involved, were not
described in any detail by the Department or Mr. Kegg in his attestations in that case.
Specifically, we held that “Mr. Kegg made conclusory statements that the inspection
reports ‘contain information relating to whether or not deficiencies were uncovered
by inspectors’ and that ‘they constitute records that would reveal the institution,
progress[,] or result of an agency investigation.’” Id. at 877. Thus, the Court
determined that it could not conclude that “the Department [was] making a
systematic and searching inquiry, a detailed examination, or an official probe . . . .”
Id. at 876-77.
Turning to the case before us, we begin with the Department’s argument that
OOR erroneously modified the scope of the Request as seeking periodic inspection
reports instead of acceptance inspection reports. By conflating the two different
10
types of inspections, the Department argues, OOR ordered release of records that
should be exempt either as noncriminal investigations under the RTKL or pursuant
to Section 403.85(e) of the UCC.
The Act establishes that the Department has administration and inspection
authority over elevators within the Commonwealth. Section 105(c)(1) of the Act,
35 P.S. § 7210.105(c)(1). Under the UCC, the Department holds the permitting
power over elevators and is charged with issuing, suspending, or revoking permits.
Section 405.3 of the UCC, 34 Pa. Code § 405.3. When an elevator is newly installed
or under repair, the Department shall conduct an “acceptance inspection.” 34 Pa.
Code § 405.5 (emphasis added). A certificate of operation will not be issued by the
Department until the elevator passes this inspection. Section 405.6 of the UCC,
34 Pa. Code § 405.6. However, this is not the only mandated inspection required
for an elevator to be considered compliant with the UCC. “A construction code
official of the Department or a third-party agency shall conduct periodic inspections
and document compliance with the [UCC] at intervals that do not exceed 6 months
. . . .” 34 Pa. Code § 405.7(a). These periodic inspections lead to an inspection
report, which under the UCC, contains: the results, the date of the inspection, the
beginning and conclusion times of the inspection, the inspection official’s
certification number, and the inspection official’s signature. 34 Pa. Code § 405.7(c).
Furthermore, should an accident occur involving “[f]atal injury or hospitalization to
a person” or “[d]amage to the elevator . . . rendering it unsafe . . . ,” an owner or
authorized agent “shall submit an accident report to the Department . . . .” Section
405.11(a)(1)-(2) of the UCC, 34 Pa. Code § 405.11(a)(1)-(2). The Department, in
turn, “may order an investigation of the accident.” 34 Pa. Code § 405.11(c)
11
(emphasis added). The UCC is silent as to what an acceptance inspection report
contains.
Here, the Request sought “all the elevator inspection reports (pass or fail) for
modernization & construction jobs in the [C]ity of Philadelphia from January 1st
2017[,] to August 12th 2019.” (R.R. at 10a (emphasis added).) Based upon this
language, the Department interprets the Request as relating only to acceptance
inspection reports, which are issued following an inspection of a new elevator or one
being placed back into service following repair. While the Department’s
interpretation seems reasonable on its face, without development of a factual record,
it is impossible for the Court to determine whether only acceptance inspections
would be performed for modernization and construction jobs or if a periodic
inspection would have also been performed.
In addition, from a review of the Final Determination, it is not clear to the
Court whether OOR determined the scope of the Request or understood its potential
import to whether the requested records should be disclosed. OOR briefly mentions
the Department is empowered to conduct acceptance inspections and periodic
inspections, (Final Determination at 4), but then discusses only periodic inspections.
For example, OOR stated that “an inspection report contain[s] only the inspection
results, date of inspection, beginning and conclusion times of inspection,
construction code official’s certification number and electronic signature.” (Id. at 6
(citing 34 Pa. Code § 405.7(c)).) However, the section cited by OOR applies only
to periodic elevator inspection reports. The UCC is silent as to what an acceptance
elevator inspection report entails, as is the record.
Moreover, although it is not clear whether OOR determined what type of
inspection reports the Request actually sought, OOR appears to only compare
12
periodic inspections, under Section 405.7, to investigations, under Section 405.11,
(Final Determination at 7), to reach the conclusion that “routine elevator inspections
under the [UCC] do not rise to the level of a noncriminal investigation,” (id. at 8).9
However, as stated above, it is unclear whether the Request sought periodic
inspection reports, acceptance inspection reports, or both, or whether acceptance
inspections can be considered what OOR called “routine.” If the Request does only
seek acceptance inspection reports, it is uncertain whether OOR would have reached
the same conclusion and ordered the disclosure of the records. The Department
argues that OOR would have reached the opposite conclusion had OOR understood
the Request as seeking acceptance inspection reports because acceptance inspections
are different and significantly more involved than periodic inspections. Aside from
the Department’s assertions to this Court to this effect, there is no evidence of record
regarding what acceptance inspections entail.
Although the Department bore the burden of establishing that the records were
exempt, under the circumstances, the Court cannot fault the Department for not
presenting more evidence to OOR on the distinction between acceptance inspections
and periodic inspections. First, as the Department stated in its position statement to
OOR, prior decisions of OOR held that BIOS’s inspection records were
“investigative materials that [] reveal the institution, progress[,] or result of such
investigations.” (R.R. at 20a.) Therefore, the Department had no reason to expect
OOR to depart from its prior decisions. Second, OOR only requested additional
information from the Department about whether any of the inspection reports were
generated after an accident report was received by the Department. (Id. at 26a.)
9
OOR’s Final Determination states that “the Request does not ask for investigative reports
or any other documents related to a Department investigation conducted as the result of an
accident.” (Final Determination at 8.) Thus, those records were not ordered disclosed.
13
Thus, it was reasonable for the Department to respond with Mr. Kegg’s second
attestation, which focused only on the information OOR specifically requested.
Third and finally, at the time, neither the Department nor OOR had the benefit of
this Court’s decision in Darlington, which clarified the noncriminal investigation
exemption, particularly involving inspections within the purview of the Department.
Because OOR did not address the scope of the Request or the alleged
difference between acceptance inspections and periodic inspections, the impact on
OOR’s analysis of the noncriminal investigation exemption is uncertain.
Similarly, it is not clear whether OOR’s review of the applicability of Section
403.85(e) of the UCC would have been different had OOR fully appreciated the
distinction. Section 403.85(e) of the UCC states that “[t]he Department . . . may
prohibit release of applications received, building plans and specifications,
inspection reports[,] and similar documents to the public under the” RTKL. 34 Pa.
Code § 403.85(e) (emphasis added). This section of the UCC is entitled “Release,
retention and sharing of commercial construction records.” Section 306 of the
RTKL provides that “[n]othing in th[e RTKL] shall supersede or modify the public
or nonpublic nature of a record or document established in Federal or State law,
regulation or judicial order or decree.” 65 P.S. § 67.306. OOR only briefly
addressed Section 403.85 in a footnote, stating that the UCC “does not contain a
prohibition regarding the release of elevator inspection reports under the RTKL. 34
Pa. Code § 403.85 (permitting the Department to withhold certain construction-
related records). Therefore, the reports are not facially noncriminal investigative
records that are exempt under the RTKL.” (Final Decision at 6 n.2.) The meaning
of Section 403.85(e) of the UCC, or its application to the reports at issue, is unclear
and not addressed by OOR.
14
It appears that OOR might have recognized the potential issues now raised on
appeal because, on the day the Final Determination was due, OOR requested an
extension of time so that a hearing could be held to develop an evidentiary record.
(Final Determination at 3 (citing 65 P.S. § 67.1101(b)(1)).) When Requester did not
respond, OOR issued its Final Determination. Because it does not appear OOR
determined the scope of the Request, the Court vacates OOR’s Final Determination
and remands this matter for further development of the factual record. Upon remand,
OOR shall accept evidence as to what type of records the Request sought and the
differences between acceptance and periodic inspections conducted by the
Department. Applying this Court’s reasoning in Darlington, OOR should then
consider whether the requested documents are exempt from disclosure as a
noncriminal investigation under the RTKL and/or by Section 403.85(e) of the UCC.
IV. CONCLUSION
After review of OOR’s Final Determination, it is not clear what type of
inspections – acceptance and/or periodic – Requester was seeking. It is apparent,
however, that there was confusion related to the difference between the inspection
types. As a result, it is not clear whether the inspection reports sought are exempt
as a noncriminal investigation, otherwise exempt from disclosure by Section
405.83(e) of the UCC, or neither. Accordingly, we vacate OOR’s Final
Determination and remand this matter for OOR to develop an evidentiary record and
to address the application of Darlington and the asserted exemptions in this case.
_____________________________________
RENÉE COHN JUBELIRER, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Department of Labor :
and Industry, :
Petitioner :
:
v. : No. 1477 C.D. 2019
:
:
Joseph E. O’Connor, :
Respondent :
ORDER
NOW, March 22, 2021, the Final Determination of the Office of Open
Records (OOR), dated September 25, 2019, is VACATED and this matter is
REMANDED. Upon remand, OOR shall accept evidence related to what type of
records were being sought and the differences between acceptance and periodic
inspections conducted by the Pennsylvania Department of Labor and Industry. OOR
shall also consider the Court’s reasoning in Pennsylvania Department of Labor &
Industry v. Darlington, 234 A.3d 865 (Pa. Cmwlth. 2020), and determine whether
the requested documents are exempt from disclosure as part of a noncriminal
investigation under Section 708(b)(17) of the Right-to-Know Law, 65 P.S. §
67.708(b)(17),1 and/or by Section 403.85(e) of the Uniform Construction Code, 34
Pa. Code § 403.85(e).
Jurisdiction relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge
1
Act of February 14, 2008, P.L. 6, 65 P.S. § 67.608.