J.M. Gera v. Borough of Frackville & Schuylkill County DA's Office

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John M. Gera, :
Appellant :
:
v. : No. 192 C.D. 2020
: SUBMITTED: January 15, 2021
Borough of Frackville and Schuylkill :
County District Attorney's Office :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 22, 2021
John Gera (Requester) appeals from the September 18, 2019 Order of the
Schuylkill County Court of Common Pleas (Trial Court), which denied his request
for records related to a criminal investigation of him by the Borough of Frackville
(Borough) Police Department. The Trial Court concluded that the requested records
were exempt from disclosure under Section 708(b)(16) of the Right-to-Know Law
(RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(16) (relating to
records pertaining to criminal investigations). On appeal, Requester asserts that the
attestation of Richard Bell, Borough Chief of Police (Chief Bell), was insufficient
for the Borough to satisfy its burden of proving that Section 708(b)(16)’s criminal
investigation exemption applies. For the following reasons, we affirm.
I. Background
On June 7, 2018, Requester filed the following RTKL request1 with the
Borough seeking:
1. Names, addresses and telephone numbers of all
Frackville, Pa. Borough Mayor, Borough Council
Members, Borough Solicitor and insurance carrier/
provider.
2. [] All records of [V.G.] and [B.A.] both [l]iving at [an
identified address]. Concerning any and all investigations,
communications, records, reports, etc. by the Frackville
Police on [Requester].
3. All records [c]oncerning any and all investigations,
communications, records, reports, etc. by the Police on
[Requester].
RTKL Request at 3, Reproduced Record (R.R.) at 26. Initially, the Borough granted
the request with respect to the Borough officials but denied the information related
to the Borough’s insurance provider, as well as Items 2 and 3. R.R. at 16. Requester
appealed to the Office of Open Records (OOR) and asserted that Chief Bell had told
him that the investigation had been closed. Id. Requester argued that since the
investigation was closed, he was entitled to Items 2 and 3 of his request. Id.
The Borough submitted the affidavits of Brenda Deeter, the Borough’s Open
Records Officer, and Chief Bell. In her Affidavit, Ms. Deeter explained that “[a]fter
conducting a good faith search of the [Borough’s] files and inquiring with relevant
[Borough] personnel, [she] identified all records within the [Borough’s] possession,
custody, or control that are responsive to the request.” Deeter Aff. at 1, R.R. at 34.
1
Requester utilized a Freedom of Information Act request form, which is required for
requesting information from the federal government. Nonetheless, the Borough responded to the
request.
2
Chief Bell explained in his Affidavit that “[t]he Police Department received
complaints from [V.G.] and [B.A.], her 18-year-old daughter, regarding
conduct/inappropriate contact by [Requester] that is being investigated.” Bell Aff.
at 1, R.R. at 35. Chief Bell further explained that “[t]he investigation was opened
on January 25, 2018, and it is ongoing.” Id.
OOR granted the request with respect to all of Item 12 but transferred the
appeal on Items 2 and 3 to the Appeals Officer of the Schuylkill County District
Attorney’s Office (DA). OOR Final Determination at 7, R.R. at 21. OOR noted that
pursuant to Section 503(d)(2) of the RTKL,3 65 P.S. § 67.503(d)(2), “only the [DA]
Appeals Officer . . . is authorized to ‘determine if the record[s] requested [are]
criminal investigative record[s]’ of a local law enforcement agency within Schuylkill
County.” Id. (quoting 65 P.S. § 67.503(d)(2)). OOR determined that it lacked
jurisdiction over the appeal relating to Items 2 and 3, because the Borough police
department is a local law enforcement agency, and the request facially sought
records relating to a criminal investigation. Id.
2
OOR determined that Item 1, relating to the Borough’s insurance provider, was
sufficiently specific, and that the Borough’s claims that no records existed “seem[ed] improbable.”
OOR Final Determination at 4-5, 6 n.2, R.R. at 18-20. As such, OOR concluded that the Deeter
Affidavit was insufficient to show that no additional records existed. Id. at 6.
3
Section 503(d)(2) of the RTKL states:
The district attorney of a county shall designate one or more appeals
officers to hear appeals under Chapter 11 relating to access to
criminal investigative records in possession of a local agency of that
county. The appeals officer designated by the district attorney shall
determine if the record requested is a criminal investigative record.
65 P.S. § 67.503(d)(2).
3
On January 4, 2019, the DA Appeals Officer denied Requester’s appeal with
respect to Items 2 and 3. DA Appeals Officer RTKL Denial at 1, R.R. at 12. The
Appeals Officer explained, “both of the remaining types of records [] requested are
exempt from disclosure under [Section 708(b)(16) (relating to records pertaining to
criminal investigations)].” Id. Thereafter, Requester appealed to the Trial Court.
The Trial Court held two hearings at which Requester appeared pro se. At the
first hearing, the Trial Court determined that the DA had been improperly named as
a party to the suit and substituted the Borough as defendant.4 Notes of Testimony
(N.T.), 7/11/19, at 8-10. The Trial Court also instructed Requester on the law and
his responsibility while acting as his own attorney. Id. at 11-12. On August 19,
2019, the Borough filed a Motion to Dismiss Requester’s Appeal for failure “to state
why the records did not fall under the asserted exemptions,” as required by Section
1101(a)(1) of the RTKL, 65 P.S. § 67.1101(a)(1).5 Borough’s Motion to Dismiss ¶
6. At the second hearing, the Borough introduced the Affidavit of Chief Bell. N.T.,
9/18/19, at 3-4 & Borough Ex. 1. Requester argued that there was no ongoing
investigation and he was entitled to the records. Id. at 5, 9-10. The Borough argued
that the criminal records exemption in Section 708(b)(16) has no time limit and the
Bell Affidavit was sufficient evidence under the RTKL. Id. at 6-9.
4
Requester again improperly named the DA as a party in this appeal. The DA Appeals
Officer functioned in a quasi-judicial role reviewing the Borough’s denial under Chapter 11 of the
RTKL and was not a party to the case. See Section 503(d)(2) of the RTKL, 65 P.S. § 67.503(d)(2)
(relating to DA Appeals Officer’s jurisdiction over RTKL requests to local law enforcement
agencies); Section 1102(a) of the RTKL, 65 P.S. § 67.1102(a) (relating to duties of Appeals
Officers).
5
Section 1101(a)(1) of the RTKL provides: “The appeal shall state the grounds upon which
the requester asserts that the record is a public record, legislative record or financial record and
shall address any grounds stated by the agency for delaying or denying the request.” 65 P.S. §
67.1101(a)(1).
4
On September 18, 2019, the Trial Court granted the Borough’s Motion to
Dismiss, concluding that the Borough complied with the RTKL and that the
requested records in Items 2 and 3 were exempt from disclosure under Section
708(b)(16) because they related to a criminal investigation. R.R. at 4-5. The Trial
Court specifically relied on the Bell Affidavit in reaching its conclusion that the
requested records were exempt as related to a criminal investigation. Id. at 5. This
appeal followed.6
II. Issue
Although Requester presents several arguments in his brief,7 they essentially
boil down to one issue: whether the Bell Affidavit was sufficient for the Borough to
6
In a RTKL dispute, this Court reviews a trial court’s order to determine if the findings of
fact are supported by substantial evidence, the trial court committed an error of law, or the trial
court abused its discretion. Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 178 n.8 (Pa.
Cmwlth. 2019). This Court’s scope of review with respect to a question of law is plenary. Id.7
In his brief, Requester alleges that the DA, the Borough, and the Trial Court all conspired
“to deny [Requester] his rights.” Requester’s Br. at 9. Requester asserts—without citing any record
evidence—that Chief Bell lied in his Affidavit; that the Trial Court was biased against him as a
pro se litigant; and that the DA had a conflict of interest and should not have been a party to the
case. Id. at 10-15. We reject these claims.
First, Requester cites no evidence that Chief Bell lied in his Affidavit, other than arguing
Chief Bell’s absence at the Trial Court’s hearings indicated he did not want to perjure himself
further. N.T., 9/18/19, at 5, 8. Second, although the Trial Court admonished Requester for his
various outbursts and accusations, Requester cites no record evidence demonstrating bias. N.T.,
7/11/19, at 5-6. Contrary to Requester’s assertion that the Trial Court “regurgitated” the Appeals
Officer’s decision, the Trial Court merely affirmed that decision. Third, the DA was improperly
named as a party to the appeal by Requester and was substituted for the Borough when the Trial
Court learned of the error. Id. at 10. To the extent that Requester argues a conflict of interest
existed between himself and the DA, Requester points to no evidence that the Appeals Officer was
similarly conflicted. Nor does Requester indicate how the alleged conflict impinged on the
Appeals Officer’s quasi-judicial role of determining whether the requested records were exempt
from disclosure under the RTKL.
5
carry its burden to prove that the records requested in Items 2 and 3 were exempt
from disclosure under Section 708(b)(16) of the RTKL. Requester’s chief argument
is that there is no evidence that the two-year criminal investigation is still ongoing
and thus must be complete. Requester’s Br. at 11-14. The Borough counters that
Section 708(b)(16) does not specify any time limit for criminal investigations and
Requester fails to explain how the documents he requested “do not constitute
criminal records under the exemption.” Borough’s Br. at 6.
III. Discussion
Under Section 305(a) of the RTKL, there is a presumption that a record in the
possession of an agency is a public record subject to disclosure. 65 P.S. § 67.305(a).
This presumption may be rebutted where “(1) the record is exempt under Section
708 [of the RTKL]; (2) the record is protected by a privilege; or (3) the record is
exempt from disclosure under any other Federal or State law or regulation or judicial
order or decree.” Id. Specifically, Section 708(b)(16) exempts from disclosure “[a]
record of an agency relating to or resulting in a criminal investigation . . . .” 8 Id. §
67.708(b)(16).
8
Pursuant to Section 708(b)(16) of the RTKL, a record relating to a criminal investigation,
includes:
(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.
(Footnote continued on next page…)
6
An agency has the burden of proving, by a preponderance of the evidence,
that an exemption applies to the records sought. Id. § 67.708(a)(1); Del. Cnty. v.
Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012) (“A
preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.”). However, the exemptions from
disclosure are to be construed narrowly. Pa. Off. of Inspector Gen. v. Brown, 152
A.3d 369, 372 (Pa. Cmwlth. 2016). An agency may carry its burden of proving an
exemption with affidavits of agency personnel. UnitedHealthcare of Pa., Inc. v. Pa.
Dep’t of Hum. Servs., 187 A.3d 1046, 1059 (Pa. Cmwlth. 2018).
Affidavits are the means through which a governmental
agency . . . justifies nondisclosure of the requested
documents under each exemption upon which it relied . . .
. The affidavits must be detailed, nonconclusory, and
submitted in good faith . . . . Absent evidence of bad faith,
the veracity of an agency’s submissions explaining
reasons for nondisclosure should not be questioned.
(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.
65 P.S.§ 67.708(b)(16).
7
Id. (quoting McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374, 381 (Pa. Cmwlth.
2014)). An affidavit that is merely conclusory will not satisfy an agency’s burden,
and an affidavit “must be specific enough to permit OOR or a reviewing court to
ascertain whether the claimed exemption applies to the records.” Id.On the other hand, when appealing an agency denial of the requested records,
the requester must assert the basis upon which the record is a public record and must
address any grounds stated by the agency for denying the request. 65 P.S.
§67.1101(a)(1). This is a threshold requirement for appeals to OOR. See Padgett v.
Pa. State Police, 73 A.3d 644, 647 (Pa. Cmwlth. 2013) (“[A] minimally sufficient
appeal is a condition precedent for OOR to consider a requester’s challenge to an
agency denial.”). This requirement “merely places a burden on a requester
to identify flaws in an agency’s decision denying a request”; however, the requester
has no burden to prove anything since the presumption must be rebutted by the
agency. Dep’t of Corr. v. Off. of Open Recs., 18 A.3d 429, 434 (Pa. Cmwlth. 2011).
These same standards also apply to the DA Appeals Officer’s review of an
agency denial of “criminal investigative records in possession of a local agency of
that county.” 65 P.S. § 67.503(d)(2) (directing the district attorney to designate an
appeals officer “to hear appeals under Chapter 11 [of the RTKL]”). Pursuant to
Section 1102 of the RTKL, the appeals officer is required to “[r]eview all
information filed relating to the request,” and “[i]ssue a final determination.” Id. §
67.1102(a)(2), (4); see also Twp. of Worcester v. Off. of Open Recs., 129 A.3d 44,
59 (Pa. Cmwlth. 2016) (“An appeals officer functions as the initial fact-finder, and
acts in a quasi-judicial capacity pursuant to Section 1102 of the RTKL.”). Although
the appeals officer may hold a hearing, admit evidence, and even conduct an in
8
camera review if necessary; the request, denial, and affidavits of the parties are often
sufficient to adjudicate the matter. UnitedHealthcare, 187 A.3d at 1060.
Here, Items 2 and 3 requested records relating to a criminal investigation.
Requester seeks “all investigations, communications, records, reports, etc. by the
Frackville Police on [Requester].” RTKL Request at 3, R.R. at 26. Section
708(b)(16) of the RTKL specifically exempts “[i]nvestigative materials, notes,
correspondence, videos and reports,” as well as, “[v]ictim information, including
any information that would jeopardize the safety of the victim.” 65 P.S. §
67.708(b)(16)(ii), (v). Item 2 clearly requests “victim information,” and Item 3’s
request virtually mirrors the language of the exemption. Compare RTKL Request at
3, R.R. at 26, with 65 P.S. § 67.708(b)(16)(ii), (v).
The Bell Affidavit was detailed and nonconclusory. It explained the nature of
the incident; when the criminal investigation was opened; and that he provided this
information to the Borough to make its decision to deny the request. See Bell Aff.
at 1, R.R. at 33. The Bell Affidavit further identified V.G. and B.A. as the victims
of inappropriate conduct or contact by Requester. Id. For these reasons, we
conclude that the Bell Affidavit was sufficiently specific for the Borough to establish
that the criminal investigation exemption applies.
Requester’s only argument before the DA Appeals Officer was that the
investigation was closed, and therefore, he was entitled to the records. Requester
repeated this argument before the Trial Court. N.T., 9/18/19, at 5. Contrary to
Requester’s argument, however, the criminal investigation exemption in Section
708(b)(16) does not distinguish between ongoing and completed criminal
investigations, nor does it require the investigation to culminate in a citation or
arrest. See 65 P.S. § 67.708(b)(16); see also Pa. State Police v. Grove, 161 A.3d
9877, 892-93 (Pa. 2017) (explaining that a criminal investigation is “a systematic
inquiry or examination into a potential crime”) (emphasis added). Accordingly,
Requester’s unsubstantiated argument that the investigation is closed, or being
purposely held open to harass him, has no bearing on the applicability of the Section
708(b)(16) exemption.9
IV. Conclusion
Because we conclude that the Bell Affidavit was sufficient to demonstrate that
the requested records were related to a criminal investigation, the Borough carried
its burden of proving that Section 708(b)(16) of the RTKL applies. Thus, we
conclude that the Trial Court correctly determined that the records were exempt from
disclosure. Accordingly, we affirm the Trial Court’s Order.
__________________________________
ELLEN CEISLER, Judge
9
To the extent that Requester asserts that he is entitled to the records, because they relate
to him, we note that the proper inquiry is whether “the requested records are public and available
to everyone,” not “why a requester believes the agency should disclose records to him.” Padgett,
73 A.3d at 647. Additionally, any alleged assurance that Chief Bell might have given Requester
that the records would be available when the investigation closed was given without authority, as
only the appeals officer has the authority to make that determination and release the documents.
See 65 P.S. § 67.1102; see also Hunsicker v. Pa. State Police, 93 A.3d 911, 914 (Pa. Cmwlth.
2014) (stating that state trooper’s assurance that requester would receive the incident report was
not authorized by Section 1102).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John M. Gera, :
Appellant :
:
v. : No. 192 C.D. 2020
:
Borough of Frackville and Schuylkill :
County District Attorney’s Office :
ORDER
AND NOW, this 22nd day of April, 2021, the September 18, 2019 Order of
the Schuylkill County Court of Common Pleas is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge