Lancaster County D.A.'s Office v. C. Walker ~ Appeal of: C. Walker

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lancaster County District Attorney’s :
Office :
:
v. : No. 1457 C.D. 2019
: Argued: December 7, 2020
Carter Walker and LNP/Lancaster :
Online and The County of Lancaster :
:
Appeal of: Carter Walker and LNP/ :
Lancaster Online :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 10, 2021
Carter Walker and LNP/Lancaster Online (collectively, Requesters)
appeal an order of the Court of Common Pleas of Lancaster County (trial court) that
denied their request for records related to civil forfeitures conducted under the statute
commonly referred to as the Controlled Substances Forfeiture Act.2 In doing so, the
trial court reversed a final determination of the Office of Open Records. The trial
court concluded that the Right-to-Know Law3 did not require the Lancaster County
District Attorney’s Office to disclose the names of persons who purchased forfeited
property at the annual auction of the Lancaster County Drug Task Force. On appeal,
Requesters contend that the trial court erred in applying the so-called “balancing
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
42 Pa. C.S. §§5801-5808.
3
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
test” because participants in a public auction have, at most, a minor privacy interest
in their identities and that interest is outweighed by the public interest in ensuring
that forfeited property is handled by law enforcement authorities in accordance with
the terms of the Controlled Substances Forfeiture Act.4 For the reasons to follow,
we reverse.
On September 7, 2018, Carter Walker, a reporter with the LNP Media
Group, submitted a written request to the Lancaster County District Attorney’s
Office, which stated, in pertinent part, as follows:
This is a request under Pennsylvania’s Right[-]to[-]Know
Law….
I am requesting documentation related to forfeitures and
expenses under Pennsylvania Title 42, Chapter [5]801 –
Controlled Substance[s] Forfeiture[ Act].[5] Specifically, I am
requesting complete documentation in each year from 1/1/2008
to present which shows the following information:
4
The Controlled Substances Forfeiture Act authorizes the civil forfeiture of any property,
including houses, vehicles and “money … furnished or intended to be furnished by any person in
exchange for a controlled substance … , and all proceeds traceable to such an exchange.” 42 Pa.
C.S. §5802(6)(i)(A). The statute establishes the standards for a lawful seizure and forfeiture of
private property used to advance an unlawful drug transaction and the procedures for effecting a
lawful forfeiture. See Commonwealth v. Real Property and Improvements Known as 2314 Tasker
Street Philadelphia, PA 19145, 67 A.3d 202, 207 (Pa. Cmwlth. 2013).
Once forfeited, the property is transferred to the local district attorney or the Attorney
General, depending on the jurisdiction of the law enforcement authority effecting the seizure. 42
Pa. C.S. §5803(f). The district attorney or Attorney General may retain the property for official
use or sell the property and distribute the proceeds in accordance with other provisions in the
Controlled Substances Forfeiture Act. Id.
As a matter of public policy, the goal of the Controlled Substances Forfeiture Act is to
“eliminate economic incentives of drug-related activity and thereby deter such activity.”
Commonwealth v. Jackson, 53 A.3d 952, 955 (Pa. Cmwlth. 2012) (quoting Commonwealth v.
Heater, 899 A.2d 1126, 1132 (Pa. Super. 2006)).
5
The request referenced former chapter 6801, which was repealed by our General Assembly by
the Act of June 29, 2017, P.L. 247, effective July 1, 2017.
2
***
• After the item was forfeited, documentation that
shows how it was processed, whether that was
sale, reutilization, or distribution to other law
enforcement agenc[ies] or personnel.
Documentation should identify the property,
what was done with the item (sold or
distributed), date sold/distributed, who the item
was distributed to if it was distributed, and how
much the item was sold for if it was sold.
Reproduced Record at 224a (R.R. __).
The District Attorney’s Office denied the request for the stated reason
that it sought “information that would be prepared for the Attorney General’s audit”
and, thus, was “not to be disseminated and shall remain confidential.” R.R. 228a.
The District Attorney’s Office also responded that the records were exempt from
disclosure because they constituted criminal and noncriminal investigative records.
Section 708 of the Right-to-Know Law6 exempts investigative records from
disclosure.
6
Section 708 of the Right-to-Know Law states, in pertinent part, as follows:
(b) Exceptions.--Except as provided in subsections (c) and (d), the following are
exempt from access by a requester under this act:
***
(16) A record of an agency relating to or resulting in a criminal
investigation, including:
(i) Complaints of potential criminal conduct other
than a private criminal complaint.
(ii) Investigative materials, notes, correspondence,
videos and reports.
(iii) A record that includes the identity of a
confidential source or the identity of a suspect who
has not been charged with an offense to whom
confidentiality has been promised.
3
Requesters appealed to the Office of Open Records (OOR). On January
7, 2019, the OOR issued a final determination directing the District Attorney’s
Office to provide all responsive records within 30 days. The OOR so held because
the governing statute, the Controlled Substances Forfeiture Act, did not protect the
requested records from disclosure. Further, the District Attorney’s Office did not
(iv) A record that includes information made
confidential by law or court order.
(v) Victim information, including any information
that would jeopardize the safety of the victim.
(vi) A record that, if disclosed, would do any of the
following:
***
(E) Endanger the life or physical
safety of an individual.
***
(17) A record of an agency relating to a noncriminal investigation,
including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence and
reports.
(iii) A record that includes the identity of a confidential
source, including individuals subject to the act of December
12, 1986 (P.L. 1559, No. 169), known as the Whistleblower
Law.
(iv) A record that includes information made confidential
by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of the
following:
***
(E) Endanger the life or physical safety of an
individual.
65 P.S. §67.708(b)(16)-(17) (emphasis added).
4
provide any evidence that the records were related to an investigation, whether
criminal or civil.
The District Attorney’s Office appealed to the trial court. Thereafter,
the Office produced extensive records about the annual auction of forfeited property
conducted by the Lancaster County Drug Task Force. The records, 221 pages in
length, included a list of each item sold; the lot number; the bidder number; a
description of the item; and the amount paid for the item. However, the Office did
not provide Requesters with the bidder registration forms, which identified the name,
address, and driver’s license number of the individuals who registered to participate
in the auction.
On August 23, 2019, the trial court conducted a hearing. The District
Attorney’s Office presented both testimonial and documentary evidence. Former
Lancaster County District Attorney, Craig Stedman, testified. He explained that
property seized and forfeited under the Controlled Substances Forfeiture Act is sold
at an annual auction of the Lancaster County Drug Task Force. To receive a bidder
number, the applicant must complete a registration form that identifies the bidder’s
name, home address, and driver’s license number.
Stedman testified that the District Attorney’s Office did not release the
bidder registration forms because the bidders were not given any notice that this
information could be released in response to a Right-to-Know Law request. Notes
of Testimony, 8/23/2019, at 31 (N.T. __); R.R. 577a. Stedman also testified that
the release of the bidder’s name, address, and driver’s license number would mean
that “the drug dealers who had that property would be able to identify the individual
who acquired their property.” N.T. 31; R.R. 577a. On cross-examination, Stedman
5
acknowledged that the annual auction is open to all members of the public, including
the former owners of the forfeited property.
Requesters also presented testimonial and documentary evidence.
Carter Walker testified about the civil forfeiture records Requesters obtained from
Berks, Centre, Chester, Dauphin, Delaware, Lebanon, and York Counties. All
provided the records refused by Lancaster County. Walker explained that these
records are important because they can be used to determine whether forfeited
property has been handled in accordance with the law.
On September 12, 2019, the trial court sustained the appeal of the
District Attorney’s Office. It held as follows:
In consideration of the specific language of Item 2 and the
privacy considerations of the private parties who purchased items
at the Lancaster County Drug Task Force auctions, the Lancaster
County Office of the District Attorney is not required to produce
records that disclose the identities, home addresses, and/or
driver’s license numbers of the private parties who bid upon
property sold at the Lancaster County Drug Task Force auctions.
Trial Court Order, 9/12/2019, at 1 (emphasis added).
The trial court reasoned, first, that the request did not specifically seek
the names of the bidders. The request sought the identity of individuals or agencies
to whom any items were distributed, but it did not seek the identity of those who
made purchases at a public auction. Thus, the District Attorney’s Office could
properly deny the request on that basis alone.
Second, the trial court held that the disclosure of the bidder registration
forms raised privacy concerns. Although the annual auction is public, the registered
bidders were not informed that “their names, addresses, or other personal
information may be obtained by a [Right-to-Know Law] request.” Trial Court Op.
6
9/12/2019, at 17. This privacy interest triggered the balancing test established in
Pennsylvania State Education Association v. Department of Community and
Economic Development, 148 A.3d 142 (Pa. 2016) (PSEA). Simply, where a privacy
interest is implicated in a Right-to-Know Law request, that interest must be weighed
against the public interest in disclosure.
The trial court acknowledged that there is public interest in full
transparency with respect to the disposition of private property that has been
forfeited to the government. However, the trial court explained that
the general auction records of what was sold and for how much
are relevant under the [Right-to-Know Law] to show the “money
trail” leading in and out of [the District Attorney’s Office]. The
requested disclosure of the names and home addresses of private
bidders at the yearly [Drug Task Force] auction is not closely
related to the official duties of the [District Attorney’s] Office
and does not provide insight into its official actions.
Trial Court Op., 9/12/2019, at 18 (emphasis added). Thus, the trial court concluded
that the “privacy interest of the individual bidders outweighs the public interest in
disclosing the information contained on the bidder registration forms.” Id.Requesters appealed to this Court. On appeal,7 Requesters argue that
the trial court erred by reversing the OOR’s final determination that the District
Attorney’s Office must produce the bidder registration forms. First, they contend
that their request for these records was sufficiently specific under the Right-to-Know
Law. Second, they contend that the trial court misapplied the balancing test because
7
This Court reviews a trial court’s decision to determine whether findings of fact are supported by
substantial, competent evidence, whether the trial court committed an error of law, or whether the
trial court abused its discretion. Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 178 n.8
(Pa. Cmwlth. 2019) (quotation omitted). This Court’s scope of review for a question of law is
plenary. Id.7
the intrusion on privacy is insignificant and far outweighed by the public interest in
the disclosure of the identity of persons purchasing forfeited property.
We begin, first, with Requesters’ argument that the trial court erred in
holding that their request was insufficiently specific. They explain that their request
for “documentation showing how the forfeited property was processed” was broadly
stated and covered the names of the individuals who purchased forfeited property at
the auction.
Section 703 of the Right-to-Know Law provides that “[a] written
request should identify or describe the records sought with sufficient specificity to
enable the agency to ascertain which records are being requested….” 65 P.S.
§67.703. “A request for a broad category of documents, such as all records, may be
sufficiently specific if confined to a particular recipient or recipients.” Pennsylvania
Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121, 1125 (Pa.
Cmwlth. 2015). In Carey v. Pennsylvania Department of Corrections, 61 A.3d 367,
372 (Pa. Cmwlth. 2013), this Court held that a request for “all records that were
provided to the transferred inmates” was sufficiently specific because it was limited
by recipient identity. By contrast, in Montgomery County v. Iverson, 50 A.3d 281,
284 (Pa. Cmwlth. 2012), this Court held that a request for all “emails sent from the
[c]ounty’s domain to four other domains” was insufficiently specific.
To determine whether a request is sufficiently specific, this Court
examines “(1) the subject matter of the request; (2) the scope of the documents
sought; and (3) the timeframe for which records are sought.” Pittsburgh Post-
Gazette, 119 A.3d at 1124. “The subject matter of the request must identify the
‘transaction or activity’ of the agency for which the record is sought.” Id. at 1125.
The document request should be presented either by type of record or by recipient.
8
Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1143 (Pa.
Cmwlth. 2017).
Here, as noted, Requesters sought:
[D]ocumentation related to forfeitures and expenses under
Pennsylvania Title 42, Chapter [5]801 – Controlled Substance[s]
Forfeitures. Specifically, [Requesters are] requesting complete
documentation in each year from 1/1/2008 to present….
R.R. 224a. This request is specific as to timeframe, activity and recipient. In
addition, Requesters provided specific explication:
After the item was forfeited, documentation that shows how it
was processed, whether that was sale, reutilization, or
distribution to other law enforcement agenc[ies] or personnel.
Documentation should identify the property, what was done with
the item (sold or distributed), date sold/distributed, who the item
was distributed to if it was distributed, and how much the item
was sold for if it was sold.
Id. (emphasis added). In sum, Requesters sought documents on “how” the forfeited
item “was processed,” whether by “sale, reutilization, or distribution.” Id. The
request then provided explanatory examples, such as “what was done [to] the item”
and “who” received the distributed property.
The specificity requirement is satisfied where the agency can determine
which records are sought. See Section 703 of the Right-to-Know Law, 65 P.S.
§67.703 (sufficient specificity is that which allows “the agency to ascertain which
records are being requested.…”). Before the trial court, Stedman testified that the
request sought “individual auction files,” which encompassed “the name of the
individual who bought” the auctioned item. R.R. 576a. This testimony alone
established that Requesters satisfied the specificity requirement. Indeed, the District
9
Attorney’s Office challenged the request precisely because Requesters sought the
names of the purchasers.
We conclude that Requesters’ request satisfied the specificity
requirement of Section 703 of the Right-to-Know Law. We reject the trial court’s
contrary holding.
In their second issue, Requesters contend that the trial court misapplied
the balancing test set forth in PSEA, 148 A.3d at 157-58, and Reese v.
Pennsylvanians for Union Reform, 173 A.3d 1143 (Pa. 2017). They argue that the
privacy interest at issue in this case is minimal and far outweighed by the public
interest in ensuring that forfeited property is lawfully handled and distributed.
Section 102 of the Right-to-Know Law defines a “record” as
[i]nformation, 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.
65 P.S. §67.102.8 Plainly, the auction bidder information is a “record” because it is
information received and retained by the District Attorney’s Office in conjunction
with its “transactions and activities” under the Controlled Substances Forfeiture Act,
8
Any “record” which is in the possession of a Commonwealth agency or local agency is presumed
to be a public record unless:
(1) the record is exempt under section 708;
(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.
Section 305 of the Right-to-Know Law, 65 P.S. §67.305.
10
namely the sale of property it has obtained through civil forfeiture. Disclosure of
public records promotes “access to official government information in order to
prohibit secrets, scrutinize the actions of public officials, and make public officials
accountable for their actions.” State Employees’ Retirement System v. Fultz, 107
A.3d 860, 866 (Pa. Cmwlth. 2015).
Nevertheless, certain “types of information should not and, under the
law, will not be subject to disclosure.” Delaware County v. Schaefer ex rel. The
Philadelphia Inquirer, 45 A.3d 1149, 1153 (Pa. Cmwlth. 2012). Personal
identification information is “information that is unique to a particular individual
[that] may be used to identify or isolate an individual from the general population.”
Id. at 1153. It is information “which makes an individual distinguishable from
another.” Id. Some personal identification information is expressly exempted from
disclosure by the Right-to-Know Law. Under Section 708(b)(6) of the Right-to-
Know Law, this includes:
(A) A record containing all or part of a person’s Social Security
number, driver’s license number, personal financial information,
home, cellular or personal telephone numbers, personal e-mail
addresses, employee number or other confidential personal
identification number.
***
(C) The home address of a law enforcement officer or judge.
65 P.S. §67.708(b)(6)(i)(A), (C) (emphasis added). Additionally, records containing
identities of minors are exempt from disclosure. Section 708(b)(30) of the Right-to-
Know Law, 65 P.S. §67.708(b)(30). Notably, the names of persons who purchase
forfeited property at a public auction are not included in the exemption list.
11
In PSEA, the Pennsylvania Supreme Court established that “[t]he
right[] to informational privacy” is guaranteed by Article I, Section 1 of the
Pennsylvania Constitution, PA. CONST. art. I, §1, which must be respected “when
disseminating requested information.” PSEA, 148 A.3d at 156. This “respect” is
not limited to the exceptions set forth in Section 708(b) of the Right-to-Know Law.
The balancing test weighs “privacy interests and the extent to which they may be
invaded against the public benefit which would result from disclosure.” Id. at 154-
55 (citations omitted). Lest there be any doubt, in Reese, 173 A.3d at 1159, the
Pennsylvania Supreme Court reaffirmed that “the PSEA balancing test is applicable
to all government disclosures of personal information, including those not mandated
by the [Right-to-Know Law] or another statute.”
The trial court held that the names, addresses, and driver’s license
numbers of successful bidders are protected by the constitutional right of privacy
and the public interest in this information did not outweigh that privacy right.
Requesters concede that the redaction of the home addresses and driver’s license
numbers is appropriate. 9 Accordingly, the sole question in this appeal concerns the
names of the purchasers.
There is a public interest in transparency about civil forfeiture.
Notably, the Controlled Substances Forfeiture Act prohibits the sale of forfeited
property to an employee of the district attorney or an employee of another law
enforcement authority. 42 Pa. C.S. §5803(f.1).10 Requesters contend, that “[p]ublic
9
In their brief, Requesters acknowledge that “it is possible that home addresses and driver’s license
numbers are sensitive information requiring redaction[.]” Requesters’ Brief at 14. Further,
Requesters concede that “[i]t may be the case … that 65 P.S. §67.708 would require redaction of
bidder home addresses and driver’s license numbers from bidder registration forms.” Id. at 15 n.4.
10
This provision states:
12
disclosure of the identities of purchasers of forfeited properties enables oversight of
law enforcement who might otherwise be incentivized to seize property with the
ultimate intent of purchasing it later at auction.” Requesters’ Brief at 16. We agree.
The Controlled Substances Forfeiture Act does not require the
disclosure of the names of the persons who purchase forfeited items, and it does not
shield their names from disclosure. Requesters contend that participants in a public
auction do not have a reasonable expectation that their identities be confidential.
Anyone can attend and observe the bidding process, including the prior owner of the
forfeited items. Notably, there was no testimony from any auction registrant that he
expected his identity to be confidential.
Conversely, the stated reason offered by the District Attorney’s Office
to withhold the names of the auction registrants, i.e., risk of harm, was speculative.
The Office offered no evidence that the disclosure of the names of auction registrants
was reasonably likely to result in a demonstrable risk of physical harm or loss of
personal security. See Pennsylvania Department of Health v. McKelvey (Pa.
Cmwlth., No. 1372 C.D. 2017, filed September 27, 2018) (unreported) (speculative
claim in affidavit did not support personal security exemption); Delaware County,
45 A.3d at 1158 (“general reference to a report which ostensibly explains how
identity thieves use home addresses and dates of birth to perpetrate new financial
account fraud is not sufficient to constitute [] proof…”). Indeed, at the hearing,
Stedman testified that he was unaware of any person ever being adversely affected
by the release of forfeiture records by any county.
(f.1) Prohibited sales.--Sale of forfeited property to an employee of the district
attorney or Attorney General, an individual related to an employee by blood or
marriage or an employee of another law enforcement authority is prohibited.
42 Pa. C.S. §5803(f.1).
13
Ensuring that the disposition of forfeited property complies with the
Controlled Substances Forfeiture Act promotes good government. There is no
statute that establishes that a person’s mere identity, as opposed to a person’s address
or driver’s license number, is a matter of utmost privacy. We agree with Requesters
that the name of the purchaser implicates a minimal privacy interest because that
individual has chosen to appear and participate in a public auction. On the other
hand, there is a significant public interest in ensuring that law enforcement officials
not participate as bidders in the auction to their personal benefit. See 42 Pa. C.S.
§5803(f.1). The Right-to-Know Law was “designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions….” Governor’s
Office of Administration v. Campbell, 202 A.3d 890, 896 (Pa. Cmwlth. 2019).
Disclosure of names of successful bidders at public auctions of forfeited items
advances the accountability of the law enforcement authorities responsible for the
civil forfeiture of property. The trial court erred in its application of the balancing
test.
For these reasons, we reverse the trial court’s order with respect to the
names on the bidder registration forms. The driver’s license and address information
should be redacted.
_____________________________________
MARY HANNAH LEAVITT, President Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lancaster County District Attorney’s :
Office :
:
v. : No. 1457 C.D. 2019
:
Carter Walker and LNP/Lancaster :
Online and The County of Lancaster :
:
Appeal of: Carter Walker and LNP/ :
Lancaster Online :
ORDER
AND NOW, this 10th day of February, 2021, the order of the Court of
Common Pleas of Lancaster County, dated September 12, 2019, is REVERSED in
accordance with the attached opinion.
_____________________________________
MARY HANNAH LEAVITT, President Judge