York County v. J. Coyle ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
York County, :
Appellant :
: No. 182 C.D. 2020
v. :
: Submitted: October 16, 2020
John Coyle :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 6, 2021
York County (County) appeals from the January 28, 2020 order of the
Court of Common Pleas of York County (trial court), which denied, in part, the
County’s request to overturn the final determination of the Office of Open Records
appeals officer (OOR) granting the Right-to-Know Law (RTKL)1 request of John
Coyle, Esq. (Requester) for records relating to various policies and procedures of the
York County Prison (Prison). We affirm in part and reverse in part.
Background
Requester filed a request on June 13, 2019, seeking:
2. The contract, agreement of sale, and purchase receipt for
electronic control weapons in use by York County Prison
corrections officers in 2018.
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
3. Any training materials provided to York County by the
supplier of electronic control weapons in use at York County
Prison in 2018.
4. All written policies governing the provision of healthcare
to inmates at York County Prison in effect as of April 1,
2018.
5. All written policies governing the provision of mental
health services to inmates at York County Prison in effect as
of April 1, 2018.
6. All written policies governing the use of force by
corrections officers at York County Prison in effect as of
April 1, 2018.
7. All written policies governing confrontations of mentally
unstable individuals at York County Prison in effect as of
April 1, 2018.
8. All written policies governing the intake of new inmates
at York County Prison in effect as of April 1, 2018.
(OOR Final Determination at 1-2; Reproduced Record (R.R.) at 3a-4a.) Although the
County provided certain records to Requester, it partially denied the request with
respect to the above-listed items, contending that disclosure of the requested policies
would threaten personal security and public safety, thus rendering the records exempt
from disclosure under section 708(b)(1)(ii) and 708(b)(2) of the RTKL, 65 P.S.
§67.708(b)(1)(ii), (b)(2).2 The County further contended that Item 4 was insufficiently
2
Section 708(b)(1)(ii) of the RTKL exempts a record from access where its disclosure “would
be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal
security of an individual.” 65 P.S. §67.708(b)(1)(ii). Section 708(b)(2) exempts “[a] record
maintained by an agency in connection with the military, homeland security, national defense, 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 or a record that is designated
classified by an appropriate Federal or State military authority.” 65 P.S. §67.708(b)(2).
2
specific. See section 703 of the RTKL, 65 P.S. §67.703 (a request “should identify or
describe the records sought with sufficient specificity to enable the agency to ascertain
which records are being requested”).3
Requester appealed to the OOR on July 23, 2019. The OOR invited both
parties to supplement the record and directed the County to notify any interested third
parties of their ability to participate in Requester’s appeal. On August 13, 2019, the
County submitted a position statement reiterating the reasons for its denial, and it
provided supporting affidavits of the Warden of the Prison, Clair Doll, and Deputy
Warden Valerie Conway.4 The County further suggested that the requested medical
policies contain confidential, proprietary information of PrimeCare Health, Inc.
(PrimeCare), the Prison’s health services contractor.5 In response to the OOR’s request
for clarification, the County submitted a letter indicating that it forwarded the appeal
packet to PrimeCare and had a discussion with PrimeCare’s counsel regarding its
ability to participate in the appeal. PrimeCare, however, did not submit a request to
participate or any other materials.
To assess whether an exemption from disclosure applied, the OOR
reviewed the affidavits of Warden Doll and Deputy Warden Conway. Regarding Items
2 and 3, which concerned electronic control weapons, Warden Doll suggested that
disclosure of purchase information would allow inmates to “understand the amount of
3
The County did not pursue its assertion of insufficient specificity before the OOR, and has
not advanced that argument before this Court.
4
For purposes of the RTKL, “[t]estimonial affidavits found to be relevant and credible may
provide sufficient evidence in support of a claimed exemption.” McGowan v. Pennsylvania
Department of Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014).
5
Section 708(b)(11) of the RTKL exempts from disclosure a “record that constitutes or reveals
a trade secret or confidential proprietary information.” 65 P.S. §67.708(b)(11).
3
electronic control weaponry available and be able to calculate a prisoner response to
counteract the available electronic control techniques,” and that disclosure of training
materials for those weapons similarly could “compromise the effectiveness and proper
use of the electronic devices.” (OOR Final Determination at 8 (quoting Warden Doll
Affidavit).) Regarding Items 4 through 8, which concerned policies governing
healthcare, mental health services, use of force, and inmate intake, Warden Doll
suggested that disclosure of these policies “would allow individuals the opportunity to
devise plans to counter staff responses or allow inmates to circumvent the collection of
certain information that would result in improper classification,” could “compromise
the effectiveness of the countermeasures to deescalate” confrontations, and would
reveal trade secrets or propriety information of the Prison’s healthcare contractor. Id.
at 8-9 (quoting Warden Doll Affidavit). Deputy Warden Conway’s affidavit, the OOR
noted, “echo[ed] the assertions made by Warden Doll in his affidavit regarding security
and safety.” Id. at 9.
The OOR noted that the personal security and public safety exemptions
both require a determination that disclosure of a requested record would be “reasonably
likely” to result in a specified consequence, namely “a substantial and demonstrable
risk of physical harm” to an individual, or to “to jeopardize or threaten public safety.”
65 P.S. §67.708(b)(1)(ii), (2). Although the RTKL does not define the meaning of
“reasonably likely,” the OOR noted that this Court has interpreted the term as
“requiring more than speculation.” (OOR Final Determination at 6 (quoting Carey v.
Department of Corrections, 61 A.3d 367, 374-75 (Pa. Cmwlth. 2013).) A “substantial
and demonstrable risk,” the OOR related, has been defined as a risk that is “actual or
real and apparent.” Id. (quoting Borough of Pottstown v. Suber-Aponte, 202 A.3d 173,
180 (Pa. Cmwlth. 2019) (emphasis omitted)). The OOR noted that it has found certain
4
prison procedures exempt from disclosure in previous cases under section 708(b)(1)
and (b)(2) of the RTKL, but has distinguished portions of prison policies that were
“administrative in nature versus those that were tactical in nature.” Id. at 11 (citing
Collier v. Indiana Borough, OOR Dkt. No. AP 2017-2356 (filed February 13, 2018)).
With regard to Items 2, 3, and 6, concerning the electronic control
weapons and use of force policy, the OOR observed that “the County neither identifies
nor describes the responsive records or their contents, nor does it identify and provide
a general description of portions that are administrative, as compared to the portions
that are tactical in nature and may be redacted.” Id. The OOR found the affidavits of
Warden Doll and Deputy Warden Conway “conclusory” and too speculative to carry
the County’s burden to establish the personal security or public safety exemptions. Id.
at 12. The OOR reached a similar conclusion with regard to the medical procedures
and policies requested in Items 4, 5, and 7, as well as the intake procedures requested
in Item 8. Id. at 12-14.
The OOR separately addressed and rejected the County’s contention that
the requested healthcare policies constituted confidential proprietary information or
trade secrets. The OOR noted that section 102 of the RTKL, 65 P.S. §67.102, provides
specific definitions of “confidential propriety information” and “trade secret,” and that
the County had not addressed the required elements. (OOR Final Determination at 16.)
Moreover, similar to its conclusion regarding the personal security and public safety
exemptions, the OOR found that the County had offered merely “conclusory
statements” about any propriety information or trade secrets of the Prison’s healthcare
contractor. Id.
Finding that the County failed to meet its burden to establish an exemption
from disclosure for the requested records, the OOR granted Requester’s appeal and
5
directed the County to provide the responsive records within 30 days. The County
appealed the OOR’s determination to the trial court on November 4, 2019. The trial
court held argument on December 10, 2019.
Before the trial court, the County submitted an additional affidavit of
Warden Doll, elaborating upon the asserted grounds for denying the request. Although
Requester objected to the submission of this affidavit, the trial court observed that
parties are permitted to submit additional materials during a de novo appeal. (Trial Ct.
Order, 1/28/2020, at 4-5; R.R. at 152a-53a (citing Levy v. Senate of Pennsylvania, 65
A.3d 361 (Pa. 2013)).) Nonetheless, the trial court expressed concern about “a
disturbing trend in recent cases” in which the County submits materials on de novo
review that it did not make available to the OOR. Id. at 5. The trial court noted that
this Court, as well, has commented on the practice, cautioning that “[a]ccepting
additional evidence without cause essentially allows agencies to withhold records
without legal grounds until reaching a Chapter 13 court,[6] undermining the
presumption of openness that forms the foundation of the current RTKL.” Id. (quoting
Mission Pennsylvania, LLC v. McKelvey, 212 A.3d 119, 130 (Pa. Cmwlth. 2019) (en
banc), aff’d in part and vacated in part, 3-5 MAP 2020, __ A.3d __ (Pa. filed July 21,
2021)). The trial court suggested that “one might conclude that the County was
‘sandbagging’ the OOR appeal process since no explanation was given for the recent
submission of the Warden’s affidavit,” especially given that the Warden indicated that
he was aware of the OOR appeal and, indeed, submitted an affidavit to the OOR. Id.6
A “Chapter 13 court” refers to the court that reviews the decision of the OOR appeals officer,
which may be either this Court or a court of common pleas, depending upon whether the matter arises
from a determination made by a Commonwealth agency or a local agency. See sections 1301-02 of
the RTKL, 65 P.S. §§67.1301-02; Bowling v. Office of Open Records, 75 A.3d 453, 458 (Pa. 2013)
(Bowling II) (noting that the Commonwealth Court and the courts of common pleas are “collectively
referred to as the ‘Chapter 13 courts,’ in reference to the chapter of the RTKL in which their relevant
duties are discussed”). We follow this convention herein.
6
The trial court, however, concluded that Warden Doll’s new affidavit “offer[ed] little”
to the trial court’s analysis, with the exception of one category of requested records.
Id.Notably, after examining the County’s initial responses to the request, the
OOR’s final determination, and the County’s additional submissions, the trial court
“adopt[ed] the findings[,] reasoning, extensive discussion of the issues and conclusions
by the OOR appeals officer,” with one exception. Id. at 6. After considering the
County’s latest submission, the trial court concluded that disclosure of the training
materials for the Prison’s electronic control weapons could reveal “potential
limitations” of the system, and that “this information would be of value to someone
attempting to defeat the effectiveness of a particular weapon.” Id. at 6-7. The trial
court thus found that these training materials were exempt from disclosure as records
that would be “reasonably likely to jeopardize or threaten public safety or preparedness
or public protection activity” under section 708(b)(2) of the RTKL, 65 P.S.
§67.708(b)(2). In all other respects, the trial court declined to disturb the OOR’s final
determination.7
The County appealed the trial court’s order to this Court.8
7
Although it did not differ with the OOR’s determination, the trial court separately
commented on the request for Item 2, concerning the purchase of the electronic control weapons. To
the extent the County suggested that disclosure of such records could reveal the number and type of
electronic control weapons available to corrections officers, the trial court opined that this “might be
true of the weapons in use in 2018, but not necessarily now, nearly two years after the time period
referred to in the request.” (Trial Ct. Order, 1/28/2020, at 6.) With regard to the purchase of electronic
control weapons in 2018, the trial court opined that “the County has not proven, beyond mere
speculation, that providing the requested information would be ‘reasonably likely’ to threaten public
safety or [the] personal security of an individual.” Id.
8
“When the court of common pleas is the ‘Chapter 13’ or reviewing court, our appellate
review is limited to whether the trial court has committed an error of law and whether the findings of
(Footnote continued on next page…)
7
Arguments9
The County presents two issues, with substantial overlap in the grounds
upon which it asserts that the trial court erred. In its first issue, the County contends
that the Prison’s policies and procedures are exempt from disclosure as records “made
confidential by law” under section 708(b)(16)(iv) of the RTKL, 65 P.S.
§67.708(b)(16)(iv). In its second issue, the County asserts that all of the requested
records were exempt from disclosure under the personal security and public safety
exemptions under section 708(b)(1)(ii) and 708(b)(2) of the RTKL, 65 P.S.
§67.708(b)(1)(ii), (b)(2). Common to both of its issues is the County’s overarching
contention that the trial court erred in adopting the majority of the OOR’s findings of
fact and conclusions of law.
With regard to the procedure that the trial court employed, the County
asserts that the trial court failed to comply with section 1302(a) of the RTKL, which
states that the “decision of the court shall contain findings of fact and conclusions of
law based upon the evidence as a whole” and “shall clearly and concisely explain the
rationale for the decision.” 65 P.S. §67.1302(a). Because the trial court adopted the
majority of the OOR’s findings of fact and conclusions of law, the County argues that
the trial court failed to conduct an independent de novo review. (County’s Br. at 19-
20, 29.) In this regard, the County seems to suggest that the trial court was obligated
to issue its own findings of fact and conclusions of law.
fact are supported by substantial evidence.” Office of the District Attorney of Philadelphia v. Bagwell,
155 A.3d 1119, 1123 n.3 (Pa. Cmwlth. 2017) (citing Township of Worcester v. Office of Open
Records, 129 A.3d 44, 49 n.2 (Pa. Cmwlth. 2016)).
9
Requester has not filed a brief in this appeal.
8
As it concerns the RTKL’s substantive exemptions from disclosure, the
County first suggests that the Prison’s policies and procedures are “made confidential
by law.” Id. at 21-22 (citing 65 P.S. §67.708(b)(16)(iv)). The law purportedly
rendering the policies confidential, the County asserts, is found at sections 1731-32 of
the Prisons and Parole Code, 61 Pa.C.S. §§1731-32. These sections provide for boards
of inspectors of county jails or prisons, give such boards the authority to “provide for
the safekeeping, discipline and employment of inmates and the government and
management of the correctional institution,” and empower boards to “make such rules
and regulations for the government and management of the county correctional
institution and the safekeeping, discipline and employment of the inmates.” 61 Pa.C.S.
§§1731(a)(3), 1732(b)(1). The County asserts that Warden Doll’s affidavit “states that
the York County Prison Board determined that the policies and procedures being
requested are considered to be confidential information that is not to be released to
members of the public.” (County’s Br. at 22.) Thus, the County argues, the subject
policies and procedures are “made confidential by law” for purposes of section
708(b)(16)(iv) of the RTKL, 65 P.S. §67.708(b)(16)(iv).
Alternatively, the County reiterates its view that all of the requested
records implicate the personal security and public safety exemptions of section
708(b)(1)(ii) and 708(b)(2) of the RTKL, 65 P.S. §67.708(b)(1)(ii), (b)(2). In support,
the County relies upon excerpts from Warden Doll’s affidavit. Believing this affidavit
is sufficient to establish the cited exemptions, the County takes issue with the OOR’s
and the trial court’s characterization of it as “speculative” and “conclusory.” (County’s
Br. at 29.) We will address the particulars of Warden Doll’s affidavit with respect to
each item sought by Requester, below.
9
Discussion
The objective of the RTKL is “to empower citizens by affording them
access to information concerning the activities of their government.” SWB Yankees
LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012). The RTKL was “a dramatic
expansion of the public’s access to government documents.” Levy, 65 A.3d at 381. As
our Supreme Court has explained:
Whereas before a requester had the burden to prove that
documents should be disclosed, the RTKL presumes
documents in the possession of an agency are public records
subject to disclosure, unless protected by a specific
exception. [Section 305 the RTKL,] 65 P.S. § 67.305.
Indeed, Section 708 places the burden of proving an
exception squarely on the agency by a preponderance of the
evidence. 65 P.S. § 67.708.
Id. We have held that we must “interpret the RTKL liberally to effect its purpose—
that being, ‘to promote access to official government information in order to prohibit
secrets, scrutinize actions of public officials, and make public officials accountable for
their actions.’” Allegheny County Department of Administrative Services v. A Second
Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) (en banc) (quoting Bowling v.
Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010) (en banc) (Bowling I),
aff’d, 75 A.3d 453 (Pa. 2013) (Bowling II)). Because we construe the law liberally in
favor of disclosure, “[e]xemptions from disclosure must be narrowly construed due to
the RTKL’s remedial nature . . . .” Office of the Governor v. Scolforo, 65 A.3d 1095,
1100 (Pa. Cmwlth. 2013) (en banc).
10
I. Trial court’s de novo review
At the outset, we squarely reject the County’s contention that the trial
court was forbidden from adopting the OOR’s findings of fact and conclusions of law.
Our Supreme Court has directly stated that there is “nothing in the RTKL that would
prevent a Chapter 13 court from simply adopting the findings of fact and conclusions
of law of an appeals officer when appropriate.” Bowling II, 75 A.3d at 473. The
Bowling II Court further made clear that “the Chapter 13 courts are the ultimate finders
of fact and that they are to conduct full de novo reviews of appeals from decisions made
by RTKL appeals officers, allowing for the adoption of the appeals officer’s factual
findings and legal conclusions when appropriate.” Id. at 474 (emphasis added). This
Court, likewise, has echoed the Supreme Court’s observation that a Chapter 13 court
may adopt the findings and conclusions of the OOR appeals officer. See Office of Open
Records v. Center Township, 95 A.3d 354, 369 (Pa. Cmwlth. 2014) (en banc) (“While
a court of common pleas or this Court . . . may conduct de novo, plenary review of
appeals from decisions made by appeals officers, there is ‘nothing in the RTKL that
would prevent [Chapter 13 courts] from simply adopting the findings of fact and
conclusions of law of an appeals officer when appropriate . . . .’”) (quoting Bowling II,
75 A.3d at 473).
This binding precedent plainly permitted the trial court to adopt the
OOR’s findings of fact and conclusions of law in making its decision. The fact that the
trial court largely did so, moreover, does not mean that the trial court failed to conduct
a de novo review. The trial court stated that it “examined the County’s responses to
the requests, the Final Determination of the OOR, and the County’s additional
submissions.” (Trial Ct. Order, 1/28/2020, at 6; R.R. at 154a.) The trial court simply
agreed with the OOR’s “findings[,] reasoning, extensive discussion of the issues[,] and
11
conclusions,” with one notable exception. Id. The trial court differed with the OOR
with respect to requested Item 3, concerning training materials for electronic control
weapons, the disclosure of which, the trial court reasoned, “would be reasonably likely
to jeopardize or threaten public safety or preparedness or [a] public protection activity”
under section 708(b)(2) of the RTKL. 65 P.S. §67.708(b)(2). Even if the trial court
was not authorized to adopt the entirety of the OOR’s findings of fact and conclusions
of law, see Bowling II, 75 A.3d at 473, the trial court’s divergence from the OOR’s
determination belies the County’s assertion that the trial court failed to undertake its
own review of “the evidence as a whole.” Section 1302 of the RTKL, 65 P.S. §67.1302.
We thus reject any assertion of error in this regard.
II. Records “made confidential by law”
We further reject the County’s contention that any record at issue is
exempt under section 708(b)(16)(iv) of the RTKL, as a record “made confidential by
law.” 65 P.S. §67.708(b)(16)(iv). First, although the County cites statutory provisions
relating to the authority of boards of inspectors of county jails or prisons, 61 Pa.C.S.
§§1731-32, these statutes neither mention any particular category of records nor
designate any records as confidential. The statutes are wholly silent on this matter.
Even more conspicuously, though, the provision of the RTKL relating to records “made
confidential by law” is not a freestanding exemption, but rather, is an example of a type
of record that may be exempt as relating to a criminal investigation. The exemption
cited by the County provides that only the following is exempt from disclosure:
(16) A record of an agency relating to or resulting in a
criminal investigation, including:
* * *
12
(iv) A record that includes information made
confidential by law or court order.
65 P.S. §67.708(b)(16)(iv) (emphasis added).
The County fails to mention that the exemption that it relies upon is for
records relating to or resulting in a criminal investigation. The County does not identify
any such criminal investigation. Accordingly, not only do the statutes cited by the
County have nothing to do with the confidentiality of records, but the RTKL exemption
that it cites is wholly inapposite.
III. Personal Security and Public Safety exemptions
The County’s primary contention throughout this matter has been that all
of the requested records are exempt under the RTKL’s personal security and public
safety exemptions. The personal security exemption provides that a record is exempt
from disclosure if it “would be reasonably likely to result in a substantial and
demonstrable risk of physical harm to or the personal security of an individual.” 65
P.S. §67.708(b)(1)(ii). The public safety exemption provides that a record is exempt
from disclosure if it is “maintained by an agency in connection with the military,
homeland security, national defense, law enforcement or other public safety activity,”
and, “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).
Both security-related exemptions require the agency to satisfy its burden
of proof by showing that it is “reasonably likely” that disclosure would cause the
identified harm. To make this showing, as the OOR correctly noted, this Court
consistently requires that “[a]n agency must offer more than speculation or conjecture
to establish the security-related exceptions under the [RTKL].” Suber-Aponte, 202
A.3d at 180 (quoting California Borough v. Rothey, 185 A.3d 456, 468 (Pa. Cmwlth.
13
2018)). For purposes of the personal security exemption, we have defined the phrase
“substantial and demonstrable risk” as “actual or real and apparent.” Id. (quoting
Carey, 61 A.3d at 373) (emphasis in original). This Court has held, moreover, that “the
RTKL’s security-related exceptions are of particular concern in police and prison
settings.” Id. at 183.
As noted above, the County takes issue with the OOR’s characterization
of its position on each of the requested items, based upon Warden Doll’s affidavit, as
amounting to only “speculation” about the likelihood of harm resulting from
disclosure. The trial court agreed with that characterization in large part, with the
exception of Item 3, concerning training materials for electronic control weapons used
by corrections officers. Based upon the additional affidavit of Warden Doll submitted
to the trial court, the trial court concluded that these training materials could reveal
“potential limitations” of the system that “would be of value to someone attempting to
defeat the effectiveness of a particular weapon.” (Trial Ct. Order, 1/28/2020, at 6-7.)
Because the trial court’s analysis of Item 3 was favorable to the County, it is not at
issue in the County’s appeal. However, the trial court’s reasoning is applicable to
another category of requested items, to which we now turn.
Items 6 and 7 – Policies governing the use of force
and confrontations of mentally unstable individuals
With regard to the Prison’s use of force policies, requested in Item 6, and
the polices governing confrontations with mentally unstable individuals, requested in
Item 7, the County relies upon Warden Doll’s explanation of the security risks of
disclosure. Warden Doll’s affidavit states:
Policies and procedures involving force, restraints, cell
extractions, and electronic stun device, [and] policies and
procedures that involve, instruct, or explain how staff uses
techniques and tools to deescalate, control or restrain
14
prisoners are critical documents to maintaining the orderly
operation of the prison and the safety of the public.
Providing prisoners information on when force is necessary,
how it is applied and all the steps to do so provides prisoners
an inher[ent] advantage over staff members who attempt to
apply these tactics and procedures.
Specifically, a prisoner could counter the control technique
staff is attempting to apply as the prisoner understands the
specific target areas and motions the staff is making. An
example is when a staff member attempts to break the grip a
prisoner has on him or her, but when they [sic] attempt to do
so the prisoner has countered the attempt because they [sic]
understood the staff member[’]s training and the prison’s
control techniques.
(Warden Doll Affidavit ¶19, R.R. at 41a-42a; County’s Br. at 27-28 (capitalization
modified).)
Specifically regarding confrontations with mentally unstable individuals,
Warden Doll added:
It is especially clear that releasing records governing the
management of violent or distraught individuals can
compromise the effectiveness of the counter measures to
deescalate the situation. The prison tactics, if known . . . will
become less effective and thus, compromises [sic] safety and
security.
(Warden Doll Affidavit ¶23, R.R. at 45a; County’s Br. at 29.)
Unlike other requested items, discussed below, the Prison’s policies
governing the use of force and the confrontation of mentally unstable individuals both
relate directly to altercations between inmates and staff members. Warden Doll
articulated a specific concern that, if known to inmates, these policies could be used to
counter the application of force, thereby giving inmates an advantage over staff
members and jeopardizing the security of the Prison. In the language of the trial court,
15
if inmates were to learn the details of the Prison’s policies governing the application of
force, they could develop an understanding of the “potential limitations” thereof, which
“would be of value to someone attempting to defeat the effectiveness” of a staff
member’s use of force to maintain the security of the Prison. (Trial Ct. Order,
1/28/2020, at 6-7.) There is little to differentiate the concerns that would arise from
the disclosure of these policies from those attending the disclosure of the training
materials for electronic control weapons.
We find that Warden Doll’s explanation of the concern relating to the use
of force was not speculative, and that he detailed a “real and apparent” risk to the safety
of staff members. Carey, 61 A.3d at 373. We reiterate, moreover, that these security
interests “are of particular concern in police and prison settings.” Suber-Aponte, 202
A.3d at 183. Although the trial court based its decision regarding the training materials
upon the public safety exemption of section 708(b)(2) of the RTKL, we reach a slightly
different conclusion with respect to the policies requested in Items 6 and 7. Because
these policies directly relate to potential confrontations between inmates and staff
members, their disclosure “would be reasonably likely to result in a substantial and
demonstrable risk of physical harm to or the personal security” of those staff members;
they thus are exempt from disclosure under section 708(b)(1)(ii) of the RTKL, 65 P.S.
§67.708(b)(1)(ii). We accordingly reverse the trial court’s order in this respect.
Item 2 – Purchase of electronic control weapons
With regard to the contract and purchase receipt for electronic control
weapons purchased by the Prison in 2018, the County relies upon Warden Doll’s
explanation:
Specifically, the release of this information would provide a
prisoner the direct knowledge of how many electronic stun
devices are available and the specific model numbers of each
16
device. Access to this knowledge informs the prisoners of
how many prisoners are needed to overwhelm and overcome
the number of devices that could be used simultaneously to
quell a disturbance. For example, if the prison has a total of
five electronic stun devices, then the prisoners understand
that only five prisoners could be affected and a total of six or
more are needed to overwhelm the security staff.
(Warden Doll Affidavit ¶15, R.R. at 34a; County’s Br. at 26.)
As noted above, supra note 7, the trial court concluded that, because the
request, filed in 2019, concerned electronic control weapons purchased in 2018, and
because additional time had elapsed since the request, it was not “reasonably likely”
that disclosure of requested information would pose a threat to personal security or
public safety. Specifically, to the extent that disclosure of the contract and purchase
receipt would reveal the number and type of electronic control weapons in use at the
Prison, the trial court stated that this “might be true of the weapons in use in 2018, but
not necessarily now, nearly two years after the time period referred to in the request.”
(Trial Ct. Order, 1/28/2020, at 6.) We find no error in the trial court’s observation. For
inmates to develop a strategy based upon the 2018 contract and purchase receipt, they
would have to assume that the Prison had purchased no other electronic control
weapons at any time before or after 2018. This is quite a leap from the narrow scope
of the information sought. Accordingly, we find no error in the trial court’s conclusion
that records responsive to requested Item 2 are not “reasonably likely” to threaten
personal security or public safety for purposes of section 708(b)(1)(ii) or (b)(2) of the
RTKL.
Items 4, 5, and 8 – Healthcare, mental health treatment, and intake policies
As with the other requested items, with regard to the Prison’s policies
governing the provision of healthcare, mental health treatment, and intake of new
17
inmates, the County relies upon Warden Doll’s affidavit. Concerning the provision of
physical and mental healthcare to inmates, Warden Doll explained:
[T]he release of such records undermines the effectiveness of
the screening and assessment process by providing prisoners
the knowledge and understanding of when a prisoner may be
transferred to an outside care provider, such as a hospital. A
transport outside the secure prison represents a higher risk
situation for staff and the public as [] all the controls and tools
provide[d] by the secure prison are no longer available. For
example, a prisoner who understands symptoms to feign that
will result in an emergency transport could arrange for family
or friends to meet him or her at the hospital in [an] attempt to
escape or provide the prisoner contraband.
(Warden Doll Affidavit ¶17, R.R. at 39a; County’s Br. at 26.)10
A specific issue concerning mental healthcare policies, Warden Doll
suggested, is suicide prevention:
A primary risk for individuals with serious mental illness is
suicide. The release of mental healthcare policies and
procedures along with the suicide prevention policy would
decrease the effectiveness of the mental health and suicide
prevention programs. Specifically, a prisoner would learn
how suicide risk assessment tools determine if a person is at
risk for suicide or not. They [sic] would also learn the
behaviors and expectations to avoid placement on suicide
precautions in order to successfully carry[ ]out their [sic]
suicidal ideations/plan.
(Warden Doll Affidavit ¶17, R.R. at 40a; County’s Br. at 27.)
Finally, concerning policies relating to the intake of new inmates, Warden
Doll explained:
10
Warden Doll also continued to assert that the Prison’s healthcare policies constitute the
proprietary, confidential information of its contractor, PrimeCare. The County has not pursued this
theory on appeal.
18
During the classification process, prisoners are asked
questions to gather information regarding their criminal
history, substance use, health concerns, prior jail and prison
adjustments, employment, etc. This information has positive
and negative effects on a prisoner’s custody level. If a
prisoner understands how the classification level is either
increased (due to more security concerns) or decreased (due
to less security concerns) they [sic] can effectively decrease
their [sic] classification level. This decrease in level places
higher risk and potentially violent prisoners in housing units
not designed to manage their security needs in addition to
placing lower risk prisoners and staff in potential harm’s
way.
(Warden Doll Affidavit ¶20, R.R. at 43a; County’s Br. at 28-29.)
We agree with the trial court that these concerns are not sufficient to
establish that disclosure of the policies governing healthcare, mental health treatment,
and intake would be “reasonably likely” to endanger personal security or public safety.
With regard to each policy, Warden Doll described a potential for a cascading sequence
of events, all premised upon a supposed increase in an inmate’s capacity to lie about
his health or background, thus triggering a security-related decision by Prison staff,
which the inmate might be able to exploit at some point in the future. These concerns
are unlike those relating to the policies governing the use of force or confrontations
with unstable inmates, which directly implicate the personal security of staff members.
With regard to the healthcare, mental health, and intake policies requested in Items 4,
5, and 8, the articulated security concerns are far more attenuated. For this information
to raise any security risk, each domino in the hypothetical sequence of events must fall
precisely as Warden Doll fears.
Although we must take seriously the potential for security issues in jails
and prisons, Suber-Aponte, 202 A.3d at 183, the relevant exemptions of the RTKL
19
nonetheless require the establishment of a reasonable likelihood of a risk to personal
security or public safety. 65 P.S. §67.708(b)(1)(ii), (b)(2). Moreover, these
exemptions, like all exemptions under the RTKL, must be narrowly construed.
Scolforo, 65 A.3d at 1100. The articulated concerns relating to the records responsive
to requested Items 4, 5, and 8 rely upon “speculation or conjecture” about the possible
uses of information derived from those records, which is insufficient to establish the
RTKL’s security-related exemptions. Suber-Aponte, 202 A.3d at 180; Rothey, 185
A.3d at 468. Accordingly, we find no error in the trial court’s determination with
regard to these items.
Conclusion
The trial court correctly determined that records responsive to requested
Items 2, 4, 5, and 8—concerning the Prison’s 2018 purchase of electronic control
weapons, and policies governing healthcare, mental health services, and intake
procedures—are not exempt from disclosure under the RTKL. We affirm the trial
court’s order with respect to these items. However, the County’s evidence was
sufficient to establish that records responsive to Items 6 and 7—concerning the Prison’s
policies governing the use of force and the confrontation of unstable individuals—are
exempt from access under the personal security exemption of section 708(b)(1)(ii) of
the RTKL, 65 P.S. §67.708(b)(1)(ii). We thus reverse the trial court’s order with
respect to these items.
Accordingly, the order of the trial court is affirmed in part and reversed in
part.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
York County, :
Appellant :
: No. 182 C.D. 2020
v. :
:
John Coyle :
ORDER
AND NOW, this 6th day of August, 2021, the order of the Court of
Common Pleas of York County dated January 28, 2020 is AFFIRMED in part and
REVERSED in part in accordance with the attached opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge