California Borough v. A.G. Rothey

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
California Borough, :
Appellant :
:
v. : No. 496 C.D. 2017
: Argued: February 5, 2018
Andrew Glenn Rothey :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 25, 2018
California Borough (Borough) appeals a decision of the Court of
Common Pleas of Washington County (trial court) affirming a final determination
of the Office of Open Records (OOR) that a video recording of a holding cell at the
Borough Police Department was disclosable. The video records a confrontation
between a police officer and a detainee in the cell. The Borough contends that the
OOR lacked jurisdiction to hear the requester’s appeal; that the trial court erred in
holding otherwise; and that OOR’s final determination was legally invalid. For the
following reasons, we reverse.
Background
On August 7, 2015, Andrew Glenn Rothey (Requester) submitted a
written request to the Borough for the
[v]ideo recording of all interaction between Adam Logan and [ ]
Borough Police Officer Justin Todd Shultz in a holding cell in
the [ ] Police Department on November 9, 2013, particularly the
physical altercation between Mr. Logan and Officer Shultz.
Reproduced Record at 11a (R.R. __). The requested video was produced by a
surveillance camera installed in the holding cell where Logan was awaiting
arraignment on criminal charges. The video shows Shultz grabbing Logan by the
throat and slamming him onto a bench. Upon viewing the video, Police Chief Rick
Encapera discharged Shultz and filed criminal charges of official oppression and
simple assault against him. Shultz pled guilty to one count of simple assault on May
5, 2015.
On September 14, 2015, the Borough denied Requester access to the
video recording of the incident. It asserted that the video related to a criminal and
noncriminal investigation of Shultz and, therefore, was exempt from disclosure
under Section 708(b)(16) and (17) of the Right-to-Know Law.1 Alternatively, the
Borough asserted that the video was exempt from disclosure under Section
708(b)(1)-(3) of the Right-to-Know Law2 because release of the video “would be
reasonably likely to jeopardize or threaten public safety …, and/or to endanger
physical security …, and poses [a] substantial and demonstrable risk to personal
security[.]” R.R. 12a. Finally, the Borough asserted that Section 9106(c)(4) of the
Criminal History Record Information Act (CHRIA)3 prohibited it from releasing the
video to any person other than a criminal justice agency. The denial letter advised
Requester that his appeal, if any, should be filed with the OOR.
OOR’s Final Determination
Requester appealed to the OOR arguing, among other things, that the
exemptions claimed by the Borough were no longer applicable because the requested
video had been disclosed to the media. In response, the Borough reiterated its
1
Act of February 14, 2008, P.L. 6, 65 P.S. §67.708(b)(16)-(17).
2
65 P.S. §67.708(b)(1)-(3).
3
18 Pa. C.S. §9106(c)(4).
2
grounds for denial and submitted a sworn affidavit of Chief Encapera. The Borough
further asserted that Section 503(d)(2) of the Right-to-Know Law4 invested the
district attorney’s appointed appeals officer, not the OOR, with jurisdiction to hear
the subject appeal.
The OOR held a hearing, where Encapera, the sole witness, testified.
He described the holding cell as a “square cubical” located inside the Police
Department “with a locked door[,] a glass window to look in[, and] a bench seated
in it with leg shackles on each side to secure prisoners.” Notes of Testimony,
2/8/2016, at 17 (N.T. __); R.R. 47a. A surveillance camera is installed in the “upper
right-hand corner of the cell[, which] is designed to show the prisoner as [he’s]
sitting in the cell.” N.T. 18; R.R. 48a. Encapera testified that the camera is recording
“all the time 24/7,” regardless of whether a prisoner is in the holding cell. N.T. 30;
R.R. 60a.
Encapera testified about the incident of November 9, 2013. Officers
who witnessed the incident reported it to Encapera, who then viewed the video
recording, downloaded it and brought it to the district attorney for review. The
district attorney and Encapera agreed that Shultz’s “actions were criminal in nature.”
N.T. 38; R.R. 68a. Encapera fired Shultz and filed criminal charges against him.
Encapera acknowledged that the video recording was not created for
the purpose of investigating Shultz or with an “expectation that a criminal act was
about to occur in the holding cell;” rather, the camera was there to ensure “the safety
of the prisoner.” N.T. 39; R.R. 69a. Encapera testified that the camera also ensures
the safety of the police officers because they can monitor the holding cell to ensure
that prisoners are “not trying to conceal anything or attempting to produce any type
4
65 P.S. §67.503(d)(2).
3
of weapon that wasn’t found during the normal search.” N.T. 21; R.R. 51a.
Encapera further testified that were the video to be distributed publicly, a future
prisoner might learn where the blind spots in the holding cell are located and use that
knowledge to conceal drugs or weapons not discovered by the police.
Encapera acknowledged that on December 4, 2013, he permitted a local
news reporter from WPXI to view the video at the police station. He also permitted
a reporter from another station, WTAE, to film a news segment in the holding cell
where the incident occurred. Encapera testified that the WTAE reporter was allowed
to do only “spot shots,” as opposed to a “complete shot[,]” of the holding cell. N.T.
60; R.R. 90a. Both the WPXI and WTAE news segment videos were submitted into
evidence to the OOR.
On June 15, 2016, the OOR issued a final determination granting
Requester’s appeal. It held that it had jurisdiction over the appeal because the
requested video was not a “criminal investigative record” within the meaning of
Section 503(d)(2) of the Right-to-Know Law, 65 P.S. §67.503(d)(2). Crediting
Encapera’s testimony, the OOR found that the video was not recorded “for the
purpose of furthering a criminal investigation[]” but rather “for the safety of the
prisoner.” OOR Final Determination at 6; R.R. 116a. Because the video was not
created “merely or primarily” for investigative purposes, the OOR rejected the
Borough’s arguments that the video was exempt from disclosure under the criminal
and noncriminal investigation exceptions in Section 708(b)(16) and (17) of the
Right-to-Know Law, 65 P.S. §67.708(b)(16)-(17), or Section 9106(c)(4) of CHRIA,
18 Pa. C.S. §9106(c)(4). OOR Final Determination at 14-19; R.R. 124a-29a.
The OOR rejected Requester’s argument that the Borough waived its
right to assert an exemption because it had already disclosed the video to the media.
4
The OOR reasoned that the Borough showed the news reporters the video recording
“outside the parameters of a [Right-to-Know Law] request[,]” which does not “‘belie
the real security concerns’ the Borough has in releasing the video as a public record.”
OOR Final Determination at 7; R.R. 117a. However, the OOR found Chief
Encapera offered no more than “mere speculation” that a release of the video would
be “reasonably likely” to impose a substantial risk of physical harm to personal
security; jeopardize public safety; or endanger the physical security of the building.
OOR Final Determination at 9; R.R. 119a. The OOR held that the Borough failed
to demonstrate that the video was exempt from disclosure under the security-related
exceptions set forth in the Right-to-Know Law.
Trial Court Decision
On July 15, 2016, the Borough filed a petition for review with the trial
court, again asserting various exceptions under the Right-to-Know Law,
confidentiality under CHRIA, and the OOR’s lack of jurisdiction to hear Requester’s
appeal. The trial court held a hearing, where Encapera again testified as the sole
witness. By order of March 21, 2017, the trial court affirmed the OOR’s final
determination. The trial court agreed with the OOR that Encapera’s testimony
consisted of “conjecture and speculation[,]” which was not sufficient to show that
release of the video would be “reasonably likely” to cause security problems. Trial
Court op. at 6; R.R. 200a.
In so holding, the trial court relied upon Pennsylvania State Police v.
Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015) (Grove I), affirmed in part, reversed in
part and remanded, 161 A.3d 877 (Pa. 2017) (Grove II),5 to conclude that the video
5
At the time the trial court decided the present case, the Supreme Court had not rendered its
decision in Grove II.
5
was not a criminal investigative record. The trial court held the video was
disclosable because it was not created “to report on a criminal investigation or set
forth or document evidence in a criminal investigation or steps carried out in a
criminal investigation.” Trial Court op. at 6-7 (citing Grove I, 119 A.3d at 1108);
R.R. 200a-01a. Likewise, the trial court rejected the Borough’s claim that the video
was exempt from disclosure as a noncriminal investigative record. Concluding that
the video was not a criminal investigative record, the trial court held that the OOR,
not the district attorney’s designated appeals officer, had jurisdiction to hear
Requester’s appeal under Section 503 of the Right-to-Know Law. The Borough
appealed to this Court.6
Appeal
On appeal, the Borough presents eight issues for our consideration,
which we combine into three for clarity.7 The Borough first argues the trial court
erred in ruling that the OOR had jurisdiction to hear Requester’s appeal. Second,
the Borough argues that the trial court erred in concluding that the video recording
was not exempt from disclosure under the criminal and noncriminal investigation
exceptions in Section 708(b)(16) and (17) of the Right-to-Know Law, 65 P.S.
§67.708(b)(16)-(17), or Section 9106(c)(4) of CHRIA, 18 Pa. C.S. §9106(c)(4).
Finally, the Borough argues that the trial court erred in ruling that the public safety
exception, physical security exception, and personal security exception set forth in
6
This Court’s review in a Right-to-Know Law appeal determines “whether the trial court
committed an error of law and whether its findings of fact are supported by substantial evidence.”
Paint Township v. Clark, 109 A.3d 796, 803 n.5 (Pa. Cmwlth. 2015). The statutory construction
of the Right-to-Know Law is a question of law subject to this Court’s plenary, de novo review.
Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa. 2012).
7
We have also rearranged the order of the Borough’s issues for ease of disposition.
6
Section 708(b)(1)-(3) of the Right-to-Know Law, 65 P.S. §67.708(b)(1)-(3), did not
apply to the video. We address these issues seriatim.
I.
The Borough first argues the trial court erred in holding that the OOR
had jurisdiction to hear Requester’s appeal. The Borough contends that appeals
relating to criminal investigative records in possession of a local agency must be
heard by the district attorney’s designated appeals officer in accordance with Section
503(d)(2) of the Right-to-Know Law. Requester responds that Section 503(d)(2) is
ambiguous because it does not state the conditions under which the OOR “is stripped
of jurisdiction.” Requester Brief at 13-14. In any event, Requester maintains the
issue of jurisdiction is moot because the trial court has jurisdiction over appeals from
both the OOR and the district attorney’s appeals officer. Id. at 11-12.
We begin with an examination of Section 503 of the Right-to-Know
Law. Generally, the OOR appoints an appeals officer to hear a requester’s appeal
of a local agency’s denial of access to records. 65 P.S. §67.503(a). However, the
Right-to-Know Law provides that criminal investigative records should be reviewed
by an appeals officer designated by a district attorney. Miller v. County of Centre,
135 A.3d 233, 239 (Pa. Cmwlth. 2016), affirmed, 173 A.3d 1162 (Pa. 2017) (noting
that Section 503 of the Right-to-Know Law provides “a separate appeals track[]” in
recognition of “the concerns of non-law enforcement personnel reviewing
investigative records[.]”). Specifically, Section 503(d)(2) of the Right-to-Know
Law provides:
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
7
district attorney shall determine if the record requested is a
criminal investigative record.
65 P.S. §67.503(d)(2) (emphasis added). “As a result of this threshold
determination, the following substantive review will be conducted by either OOR
(in the case of records other than criminal investigative records) or by the [district
attorney’s] designated appeals officer (in the case of criminal investigative
records).” Pennsylvanians for Union Reform v. Centre County District Attorney’s
Office, 139 A.3d 354, 357 (Pa. Cmwlth. 2016).
Where there is a dispute over whether a requested record is a criminal
investigative record, the statute is unclear as to which appeals officer shall make the
“threshold determination.” See Sporish v. Springfield Township, (Pa. Cmwlth., No.
421 C.D. 2014, filed August 27, 2014), slip op. at 5 n.3 (unreported)8 (noting that
Section 503 of the Right-to-Know Law presents a “chicken and egg quandary[.]”).
The Borough asserts that only the district attorney’s designated appeals officer, not
the OOR, had jurisdiction to hear Requester’s appeal once the Borough denied the
request on grounds that the video was a criminal investigative record. Notably, the
Borough denied the request on other grounds and, itself, directed Requester to appeal
to the OOR. The Borough’s interpretation of the Right-to-Know Law would have
required Requester to appeal some issues to the OOR and one issue to the district
attorney. It is not at all clear that this cumbersome procedure was intended by the
legislature or that the OOR lacks jurisdiction over an appeal simply because one of
several stated reasons for a denial is that the information requested from a local
agency relates to a criminal investigation.
8
Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value.
8
However, we agree with Requester that the issue of jurisdiction is moot.
The trial court conducted a de novo review of the Requester’s appeal.9
The mootness doctrine requires that there be an actual case or
controversy at all stages of review. The existence of a case or controversy requires:
(1) A legal controversy that is real and not hypothetical;
(2) A legal controversy that affects an individual in a concrete
manner so as to provide the factual predicate for a reasoned
adjudication; and
(3) A legal controversy with sufficiently adverse parties so as
to sharpen the issues for judicial resolution.
Mistich v. Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa.
Cmwlth. 2004) (citing Dow Chemical Company v. United States Environmental
Protection Agency, 605 F.2d 673, 678 (3d Cir. 1979)). “A controversy must
continue through all stages of judicial proceedings, trial and appellate, and the parties
must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Mistich,
863 A.2d at 119 (citing Lewis v. Continental Bank Corporation, 494 U.S. 472, 477-
78 (1990)). “Courts will not enter judgments or decrees to which no effect can be
given.” Mistich, 863 A.2d at 119. An exception to mootness will be found where
conduct complained of is capable of repetition yet likely to evade judicial review,
where the case involves issues of great public importance or where one party will
suffer a detriment without the court’s decision. Id. (citing Horsehead Resource
Development Company, Inc. v. Department of Environmental Protection, 780 A.2d
856, 858 (Pa. Cmwlth. 2001), appeal denied, 796 A.2d 987 (Pa. 2002)).
9
In reviewing a decision concerning a records request, the trial court’s standard of review is de
novo, and its scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 467-68
(Pa. 2013).
9
Here, any controversy that may have existed over which appeals officer
had jurisdiction to hear Requester’s appeal no longer exists. Final determinations
on a request for local agency records, whether issued by the OOR or by the district
attorney’s designated appeals officer, are appealed to the court of common pleas for
the county. Section 1302(a) of the Right-to-Know Law, 65 P.S. §67.1302(a). Here,
the trial court held a de novo hearing and rendered its own findings of fact and
conclusions of law.
In sum, the jurisdictional issue did not “continue through all stages of
[these] judicial proceedings.” Mistich, 863 A.2d at 119. The trial court resolved the
dispute as it would have even if Requester had appealed to the district attorney’s
designated appeals officer. Because the issue of jurisdiction is moot and no
exception to mootness applies, we need not consider the issue of jurisdiction.
Stuckley v. Zoning Hearing Board of Newtown Township, 79 A.3d 510, 519 (Pa.
2013) (when the issues in a case are moot, any opinion issued by an appellate court
would be merely advisory and, therefore, inappropriate).
II.
The Borough argues, next, that the trial court erred in holding that the
requested video was not exempt as a criminal or noncriminal investigative record
under Section 708(b)(16) and (17) of the Right-to-Know Law, 65 P.S.
§67.708(b)(16)-(17). The Borough asserts that the video was maintained as part of
the investigation of Shultz. The Borough further asserts that because the video
contains investigative information, it was exempt from public disclosure under
Section 9106(c)(4) of CHRIA, 18 Pa. C.S. §9106(c)(4). Requester responds that the
video is not a criminal or noncriminal investigative record because it was not created
“during the course of an investigation to document the steps taken throughout[.]”
10
Requester Brief at 14. Requester further counters that “[a]n otherwise public record
that becomes evidence in a criminal investigation does not inherently become a
‘criminal investigative’ record under 65 P.S. §[67.]708(b)(16).” Requester Brief at
14.
A. Right-to-Know Law
The Right-to-Know Law requires state and local agencies to provide
access to public records upon request. Section 302 of the Right-to-Know Law, 65
P.S. §67.302 (“A local agency shall provide public records in accordance with this
act.”). Section 102 of the Right-to-Know Law defines a “public record” as a
record, including a financial record, of a Commonwealth or local
agency that: (1) is not exempt under section 708[, 65 P.S.
§67.708]; (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 under the Right-to-Know Law 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. There is no dispute that the video recording in the instant case is a “record” as
defined in the Right-to-Know Law. The burden of proving that a “record” is exempt
from public access is placed on the “local agency receiving a request by a
preponderance of the evidence.” Section 708(a)(1) of the Right-to-Know Law, 65
P.S. §67.708(a)(1). By this standard of proof, “the existence of a contested fact must
11
be more probable than its nonexistence.” Pennsylvania State Troopers Association
v. Scolforo, 18 A.3d 435, 439 (Pa. Cmwlth. 2011). In addition, “[c]onsistent with
the [Right-to-Know Law’s] goal of promoting government transparency and its
remedial nature, the exceptions to disclosure of public records must be narrowly
construed.” Office of Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Cmwlth. 2015).
The Right-to-Know Law exempts any agency record “relating to or
resulting in a criminal investigation,” including “[i]nvestigative materials, notes,
correspondence, videos and reports.” Section 708(b)(16)(ii) of the Right-to-Know
Law, 65 P.S. §67.708(b)(16)(ii). The Right-to-Know Law does not define the phrase
“criminal investigation.” However, our Supreme Court has observed that the term
“clearly and obviously refers to an official inquiry into a possible crime.” Grove II,
161 A.3d at 893.
Section 708(b)(17)(ii) also exempts from disclosure “[a] record of an
agency relating to a noncriminal investigation, including ... (ii) Investigative
materials, notes, correspondence and reports.” 65 P.S. §67.708(b)(17)(ii). The
Right-to-Know Law does not define “noncriminal” or “investigation.” A
“noncriminal” investigation is one not intended to consider prosecution and, in this
context, “investigation” means “a systematic or searching inquiry, a detailed
examination, or an official probe.” Department of Health v. Office of Open Records,
4 A.3d 803, 811 (Pa. Cmwlth. 2010). The inquiry, examination, or probe must be
conducted as “part of the agency’s official duties.” Id. at 814.
Here, the surveillance camera in the holding cell recorded the
commission of a crime by Shultz. Chief Encapera viewed the video, downloaded it,
and took it to the district attorney for review. Encapera subsequently fired Shultz
12
for the incident and filed criminal charges against him. Thus, the video relates to
both a criminal investigation and a noncriminal, i.e., personnel, investigation.
The trial court held that because the video recording did “not chronicle
the collection of evidence, witness interviews or any type of investigative
information that took place as part of a criminal investigation[,]” it was not a
criminal investigative record exempt under Section 708(b)(16)(ii) of the Right-to-
Know Law. Trial Court op. at 7; R.R. 201a (emphasis in original). In so holding,
the trial court relied upon Grove I, 119 A.3d 1102, where the requester sought access
to two mobile video recordings (MVR) relating to a traffic accident. The
Pennsylvania State Police denied the request for the MVRs claiming they were
exempt as investigatory records. The OOR sustained the requester’s appeal, and the
State Police petitioned for this Court’s review.
The State Police argued that the MVRs were criminal investigative
records because they depicted a vehicle accident that resulted in traffic citations, i.e.,
summary criminal offenses. We rejected this logic, noting that “[t]he mere fact that
a record has some connection to a criminal proceeding does not automatically
exempt it under Section 708(b)(16) of the [Right–to–Know Law] or CHRIA.” Grove
I, 119 A.3d at 1108. An MVR may “have no investigative content.” Id. However,
an MVR may contain information relating to a criminal investigation, including
“witness interviews, interrogations, intoxication testing and other investigative
work....” Id. at 1109. Where a single MVR includes investigatory and non-
investigatory information, “the agency must produce the record with the exempt
information redacted.” Id.
In Grove I, one MVR did not have an audio component; it showed only
a trooper speaking to the drivers of the vehicles and photographing the crash scene.
13
We concluded it had no investigative information. The second MVR contained
audio, including driver interviews, and video. We concluded that the video depiction
of the conversations was not investigative, and not exempt, but the audio component
could be redacted to the extent necessary to the criminal investigation.
On further appeal, our Supreme Court held that we correctly determined
that MVRs are not automatically exempt from disclosure as criminal investigative
records under Section 708 of the Right–to–Know Law or under CHRIA.
Emphasizing that the State Police had the burden to demonstrate that an MVR was
an investigative record, the Supreme Court held that the question must be determined
on a case-by-case basis. Grove II, 161 A.3d at 894.10
More specifically, the Supreme Court held that the video components
of the two MVRs were not exempt because they did not depict the accident itself.
They showed only the state troopers at the crash scene, interacting with drivers and
bystanders. Id. at 894. Although the troopers issued citations for Vehicle Code
violations, the citations were based on witness interviews, not the video.
Accordingly, the video portion of the MVRs was disclosable.
The Borough argues that the Grove cases are distinguishable because
the MVRs did not capture the accident but rather its aftermath. By contrast, here,
the surveillance camera recorded the entire confrontation between Shultz and Logan.
Further, the State Police acknowledged in the Grove cases that the information for
10
Shortly after the Supreme Court’s pronouncement in Grove II, Senate Bill No. 560 was signed
into law by Governor Wolf as Act No. 2017–22 of July 7, 2017. This act amended Title 42 of the
Judicial Code by adding Chapter 67A. Section 67A03 limits the disclosure of law enforcement
audio and video recordings. 42 Pa. C.S. §67A03. Section 67A06 mandates that when a law
enforcement agency denies a request for access to an audio or video recording, the appeal is not
taken to the OOR but to the court of common pleas. 42 Pa. C.S. §67A06. Because the trial court
decided the instant case before Act No. 2017-22 was enacted, we hold that the act does not govern
the instant case.
14
its criminal citations did not come from the video. Here, Chief Encapera relied upon
the video recording to fire Shultz and file criminal charges against him. The video
therefore relates to the subsequent criminal and noncriminal investigations against
Shultz, even though it was not created as part of an investigation.
It is true, as the trial court observed, that the video recording was not
created for an investigative purpose. Notably, in Port Authority of Allegheny County
v. Towne, (Pa. Cmwlth., No. 92 C.D. 2017, filed September 12, 2017) (unreported),
this Court considered, and rejected, this rationale for deeming a video recording
disclosable. In Towne, the requester sought video recordings made by a bus camera
that had recorded the requester’s accident with the bus. The authority asserted that
the recording was an exempt noncriminal investigative record because the authority
had downloaded the video during its investigation of the incident. The OOR granted
the requester access to the video.
This Court reversed and held that the video was exempt as a
noncriminal investigative record. The authority’s chief operating officer testified
that a video recording from an authority bus is downloaded and reviewed only when
an incident, claim, or accident is reported, thereby triggering an investigation. This
Court further stated:
Consistent with Grove [II], the exempt status of the recordings
at issue is not solely determined by the fact that they are created
before an investigation and downloaded and reviewed only after
an incident, claim or accident is reported thereby triggering an
investigation. Accordingly, we reject the OOR’s rationale that,
because the recordings were created before and independent of
any investigation, “they cannot be said to exist ‘merely or
primarily’ for investigative purposes and thus cannot be said to
‘relate’ to a noncriminal investigation….” If the OOR’s
somewhat circular reasoning was correct, then portions of the
MVRs in Grove [II] never could have constituted investigative
15
records due to the [State Police’s] recording and retention
practice.
Towne, slip op. at 9-10 (internal quotations omitted) (emphasis added).
For all of the foregoing reasons, we hold that the trial court erred in
holding that the video recording was not exempt from disclosure under the criminal
and noncriminal investigation exceptions in Section 708(b) of the Right-to-Know
Law.
B. CHRIA
The Borough further argues that Section 9106(c)(4) of CHRIA
prohibits it from releasing the video to any person other than a criminal justice
agency. The trial court rejected that argument, holding that because the video was
not investigative, the restriction on disclosure set forth in Section 9106(c)(4) of
CHRIA did not apply.
Generally, CHRIA governs the collection, maintenance, dissemination,
disclosure and receipt of criminal history record information. As a matter of law,
CHRIA prohibits disseminating “investigative information” to any persons or
entities other than criminal justice agents and agencies. 18 Pa. C.S. §9106(c)(4).
Specifically, Section 9106(c)(4) states:
Investigative and treatment information shall not be
disseminated to any department, agency or individual unless the
department, agency or individual requesting the information is a
criminal justice agency which requests the information in
connection with its duties, and the request is based upon a name,
fingerprints, modus operandi, genetic typing, voice print or other
identifying characteristic.
18 Pa. C.S. §9106(c)(4). “Investigative information” is defined under CHRIA as
“[i]nformation assembled as a result of the performance of any inquiry, formal or
16
informal, into a criminal incident or an allegation of criminal wrongdoing ....” 18 Pa.
C.S. §9102 (emphasis added). The operative word in the above definition is
“assembled,” which means to “bring or gather together into a group or whole.”
Pennsylvania State Police v. Kim, 150 A.3d 155, 160 (Pa. Cmwlth. 2016) (citing
Am. Heritage Dictionary 134 (2nd Coll. ed. 1985)).
Here, Chief Encapera gathered the information on the video by
downloading it and taking it to the district attorney for an evaluation. Stated
otherwise, Encapera “assembled” the criminal investigation information. The trial
court therefore erred in holding that the video was not exempt under CHRIA as
investigative information.
III.
Finally, the Borough argues that the trial court erred by ruling that the
video was not exempt from disclosure under the public safety, physical security, and
personal security exceptions set forth in Sections 708(b)(1)-(3) of the Right-to-Know
Law, 65 P.S. §67.708(b)(1)-(3).11 In that regard, the Borough asserts that Encapera’s
testimony showed that disclosure of the video would “reasonably likely” jeopardize
public safety; endanger physical security; or pose substantial and demonstrable risk
to personal security. Borough Brief at 20.
Section 708(b)(2) of the Right-to-Know Law exempts from disclosure
records “maintained by an agency in connection with … 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[.]” 65 P.S.
§67.708(b)(2). In order to satisfy this exemption, an agency must show, by a
11
Although the Borough’s final issue is not outcome determinative given our resolution of the first
two issues, we address it for the sake of completeness.
17
preponderance of the evidence, that (1) the record at issue relates to a law
enforcement or public safety activity; and (2) disclosure of the record would be
“reasonably likely” to threaten public safety or a public protection activity. Carey
v. Department of Corrections, 61 A.3d 367, 374-75 (Pa. Cmwlth. 2013). “In
interpreting the ‘reasonably likely’ part of the test, as with all the security-related
exceptions, we look to the likelihood that disclosure would cause the alleged harm,
requiring more than speculation.” Id.
Section 708(b)(1)(ii) of the Right-to-Know Law also exempts from
disclosure a record that “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). For this exemption to apply, an agency must show, by a
preponderance of the evidence, “(1) a ‘reasonable likelihood’ of (2) a ‘substantial
and demonstrable risk’ to a person’s personal security.” Delaware County v.
Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).
Finally, Section 708(b)(3) of the Right-to-Know Law exempts from
public access “[a] record, the disclosure of which creates a reasonable likelihood of
endangering the safety or the physical security of a building, public utility, resource,
infrastructure, facility or information storage system….” 65 P.S. §67.708(b)(3).
In summary, all three exceptions incorporate a “reasonable likelihood”
test. Here, Chief Encapera, the sole witness, testified that there are blind spots in the
holding cell, which the camera does not capture. He stated that future prisoners,
upon viewing the video, might be able to determine where the blind spots in the
holding cell are and use that knowledge to conceal drugs or weapons not discovered
by the police. However, Encapera testified that prisoners in the holding cell are
searched prior to entering the cell. N.T. 28; R.R. 58a. While in the holding cell, the
18
prisoners are “handcuffed and have a leg shackle on them so they can’t roam
around.” Id. It is unclear how a prisoner secured in the holding cell could access
the blind spots in the cell and commit an act that could endanger safety or security.
An agency must offer more than speculation or conjecture to establish
the security-related exceptions under the Right-to-Know Law. Lutz v. City of
Philadelphia, 6 A.3d 669, 676 (Pa. Cmwlth. 2010). The Borough failed to satisfy
its burden of proving that the video recording is exempt from disclosure under the
security-related exceptions under the Right-to-Know Law, 65 P.S. §67.708(b)(1)-
(3). Its evidence consisted of speculation, as the trial court correctly held.
Conclusion
Because we conclude that the trial court erred in ruling that the video
recording was not exempt from disclosure under the criminal and noncriminal
investigation exceptions in Section 708(b)(16) and (17) of the Right-to-Know Law,
65 P.S. §67.708(b)(16)-(17), or Section 9106(c)(4) of CHRIA, 18 Pa. C.S.
§9106(c)(4), we reverse the trial court’s March 21, 2017, order.
______________________________________
MARY HANNAH LEAVITT, President Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
California Borough, :
Appellant :
:
v. : No. 496 C.D. 2017
:
Andrew Glenn Rothey :
ORDER
AND NOW, this 25th day of April, 2018, the order of the Court of
Common Pleas of Washington County dated March 21, 2017, in the above-captioned
matter is REVERSED.
______________________________________
MARY HANNAH LEAVITT, President Judge