Energy Transfer v. S. Cortes & Middletown Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Energy Transfer, : CASES CONSOLIDATED
Appellant :
:
v. :
:
Samuel Cortes and :
Middletown Township : No. 1296 C.D. 2021
: Argued: March 6, 2023
:
:
Middletown Township :
:
v. :
:
Samuel Cortes and :
Energy Transfer :
:
Appeal of: Energy Transfer : No. 1297 C.D. 2021
:
:
Middletown Township, :
Appellant :
:
v. :
:
Samuel Cortes and :
Energy Transfer : No. 1298 C.D. 2021
:
:
Energy Transfer :
:
v. :
:
Samuel Cortes and :
Middletown Township :
:
Appeal of: Middletown Township : No. 1311 C.D. 2021
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 14, 2023
Before the Court are four consolidated appeals from the October 15, 2021
order of the Court of Common Pleas of Delaware County, Pennsylvania (trial court).
The trial court affirmed, in part, and reversed, in part, the March 18, 2021 Final
Determination of the Pennsylvania Office of Open Records (OOR), which granted, in
part, and denied, in part, the appeal of Appellee Samuel Cortes (Cortes) from
Middletown Township’s (Township) partial denial of Cortes’ request (Request)
pursuant to the Pennsylvania Right-to-Know Law (RTKL).1
Upon review, we reverse.2
I. FACTS AND PROCEDURAL HISTORY
The facts underlying this appeal largely are undisputed and can be
summarized as follows:
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
Energy Transfer, an interested third party from whom the Township obtained documents
responsive to the Request, participated in the proceedings before both the OOR and the trial court,
which participation is not challenged in this appeal. (Reproduced Record (R.R.) 71a, 187a.) Both
Energy Transfer and the Township filed petitions for review of the OOR’s Final Determination, which
petitions created two separate trial court case numbers. Both Energy Transfer and the Township then
appealed the trial court’s decision in both cases, resulting in the creation of four separate case numbers
in this Court. We consolidated the appeals for all purposes and identified both Energy Transfer and
the Township as Designated Appellants by order exited August 31, 2022. We refer to Energy Transfer
and the Township together as “Designated Appellants,” where appropriate.
2
The Request
On December 16, 2020, Cortes submitted the Request to the Township
seeking seven categories of information. After invoking a 30-day extension of its
response deadline,3 the Township granted the Request regarding categories two
through six, denied the Request, in part, regarding category one (Category 1), and
denied the request regarding category seven on the ground that no responsive
documents existed. Pertinent here,4 Category 1 of the Request sought the following
records:
All communications by and between the Township
(including, but not limited to, all appointed and elected
officials (e.g., Township Manager, Township Engineer, and
Solicitor or Conflict Solicitor, James Flandreau, Esq.)
(collectively, the “Township”)) and Sunoco Pipeline, LP
(including, but not limited to, Duane Morris, LLP, Energy
Transfer Partners, Manko, Gold, Katcher, and Fox, LLP, and
all other persons and/or entities acting for or on behalf of it
(collectively, “Sunoco”)), from January 1, 2019, through the
present relating to the Mariner East 2 Pipeline or any work
relating to the same.
(R.R. 25a.)5 Upon receiving the Request, pursuant to section 707(a) of the RTKL, 65
P.S. § 67.707(a), the Township notified Energy Transfer’s counsel of the Request and
3
See section 902(b) of the RTKL, 65 P.S. § 67.902(b).
4
Cortes appealed the Township’s partial denial to the OOR, which granted the appeal, in part.
Energy Transfer and the Township petitioned for review in the trial court, which affirmed, in part,
and reversed, in part. In their appeal to this Court, Energy Transfer and the Township challenge the
trial court’s decision only with regard to Category 1 of the Request and the applicability of the
noncriminal investigation exemption found at section 708(b)(17) of the RTKL. 65 P.S. §
67.708(b)(17).
5
Cortes submitted a second RTKL request to the Township on December 17, 2020, to which
the Township responded and produced the responsive record on December 22, 2020. (R.R. 154a-
55a.) This request is not at issue in this appeal.
3
advised that it would require production of documents that Energy Transfer had
provided to the Township. (R.R. 157a.) Energy Transfer responded and objected to
the production of several categories of documents, including those it argued were
exempt under section 708(b)(17) of the RTKL. (R.R. 161a.)6 Although the Township
thereafter produced a significant number of responsive documents requested under
Category 1, it denied production of other documents on multiple grounds, including
the noncriminal investigation exemption.7 (R.R. 26a.) The Township advised Cortes
that, “[a]dditionally, if you would like to review any of the documents pertaining to
[Flynn v. Sunoco, Public Utility Commission [PUC] Docket Nos. C-2018-3006116, P-
2018-3006117], they are available on the PUC docket.” (R.R. 27a.)
6
Regarding section 708(b)(17) exemption, Energy Transfer’s counsel advised the Township,
in pertinent part, as follows:
[Energy Transfer] voluntarily cooperates with Township requests for
information related to investigations, including, but not limited to,
investigations of Township property and roadways. The [section
708(b)(17)] exemption covers all communications between the
Township and Energy Transfer related to such investigations, including
materials supplied by Energy Transfer, in addition to the Township’s
own notes of and assessments of those materials.
(R.R. 161a.)
7
The Township also withheld documents under Category 1 on the grounds that they contained
confidential security, public safety, and physical security information (RTKL section 708(b)(2),(3)),
were protected by the Public Utility Confidential Security Information Disclosure Protection Act, Act
of November 29, 2006, P.L. 1435, 35 P.S. §§ 2141.1-2141.6, were governed by a protective order
issued by court or administrative agency (RTKL section 306), reflected pre-decisional deliberations
of the Township (RTKL section 708(b)(10)), and would reveal the contents of real estate appraisals,
engineering or feasibility estimates, environmental reviews, audits or evaluations made for or by the
Township regarding real estate transactions, the purchase of public supplies or equipment as part of
a real estate transaction, or construction projects (RTKL section 708(b)(22)(i)). (R.R. 26a.) Although
certain of these exemptions were at issue and litigated before the OOR and trial court, they are not at
issue in this appeal.
4
Before the OOR
Cortes appealed the Township’s partial denial to the OOR on February 8,
2021. (R.R. 30a.) Before the OOR, Cortes argued that the Township had not produced
all non-exempt responsive documents under Category 1 and did not provide sufficient
information from which the applicability of the noncriminal investigation exemption
could be determined. Cortes requested that the OOR direct the production of all
responsive records or, in the alternative, that the OOR conduct an in camera review to
determine whether the Township properly withheld the records. (R.R. 184a-85a.)
Energy Transfer argued before the OOR that many of the records
requested under Category 1 were publicly available on the PUC’s and Township’s
websites, including a Township webpage dedicated to “Sunoco/Mariner East News and
Information.”8 Regarding the noncriminal investigation exemption, Energy Transfer
argued that the records withheld by the Township under Category 1 were exempt
because they related to the Township’s ongoing investigations of resident complaints
and public safety issues regarding Township roadways, property, and facilities. (R.R.
82a-83a.) In support, Energy Transfer submitted the sworn declaration of Joseph
Massaro, a “Lead Specialist, Public Affairs for Energy Transfer” (Massaro
Declaration). (R.R. 88a.) Regarding the Township’s investigations specifically,
Massaro declared as follows:
7. Since 2019, Energy Transfer has provided the
Township with extensive, detailed geophysical and locational
data related to its pipeline operations and/or construction
pursuant to the Township’s non[ ]criminal investigations of
resident complaints and public safety issues related to
Township roadways, property, and facilities. Specifically,
these records represent geophysical reports, data requests, and
correspondence detailing Energy Transfer's pipeline
operation.
8
Available at https://middletowndelcopa.gov/sunoco, last visited April 13, 2023.
5
8. Energy Transfer voluntarily provided numerous
confidential records regarding its pipeline operations and/or
construction to the Township with the understanding that this
confidential information was being provided solely for the
purposes of the Township’s independent review and
investigation and that such records would not be publicly
released.
9. To the extent Energy Transfer provided records subject
to public release, such as public summaries of geophysical
reports, these documents are publicly accessible via the
Township’s website.
10. Release of confidential records related to the
Township’s ongoing non[]criminal investigations of Energy
Transfer's pipeline would endanger the integrity of the
Township’s investigations and Energy Transfer’s due process
rights, and would serve to hinder the free[]exchange of
information in future non[]criminal investigations.
(Massaro Declaration, ¶¶ 7-10; R.R. 90a-91a.)
Energy Transfer also submitted two at-large letters the Township sent to
residents on September 13, 2019, and November 21, 2019, in which the Township
advised residents that its investigations of Energy Transfer’s Mariner East 2 Pipeline
were ongoing. (R.R. 115a, 116a.) The September 13, 2019 letter advised Township
residents that Township staff had received notice of a “subsidence” that occurred
“South of Forge Road, along Valley Road,” and that the PUC had been notified. It
further advised that “Township staff [is] onsite to assess, and the situation is an ongoing
investigation. [The] Township will provide more information once information is
available and confirmed.” (R.R. 116a.) In its November 21, 2019 letter, which
concerned a “November 18, 2019 subsidence,” the Township advised residents that the
PUC continued its investigation and assessment of the incident and that the Township
retained a geophysics engineering firm to “assist with independent review and
6
confirmation of the site to provide further confidence that the roadway is safe for public
use.” (R.R. 115a.) The Township also indicated that Township staff would update
the Township webpage with any “new confirmed information.” (Id.)
The Township also argued before the OOR that the withheld records were
exempt from disclosure under the noncriminal investigation exemption. In support,
the Township submitted an attestation from John McMullan, the Township’s open
records officer (McMullen Attestation), and a 30-page “exemption log” that included
the date, type, subject matter, sender, recipient, and exemption claimed for each of
approximately 600 withheld records. (Exemption Log). (R.R. 165a, 119a-48a.)
McMullan attested that he had conducted a good faith search for responsive records
and that the Township had withheld certain documents pursuant to the noncriminal
investigation exemption, which were identified in the Exemption Log. McMullen
further relied upon the OOR’s prior determination in Fuller v. Middletown Township
(Pa. Off. Open Rec. Docket No. AP 2020-1286, filed September 11, 2020), which
involved a July 2020 RTKL request to the Township for records relating to the same
pipeline subsidence issues. (R.R. 165a.)
In its final determination, the OOR agreed with Cortes and concluded that
the Township and Energy Transfer failed to prove that the withheld records related to
a noncriminal investigation. The OOR agreed that the Township has the authority
under its home rule charter to conduct a noncriminal investigation of Energy Transfer’s
pipelines and related safety issues, but nevertheless concluded that the Township’s and
Energy Transfer’s affidavits, Exemption Log, and other evidence did not establish that
the Township conducted such an investigation or that the withheld records adequately
related to such an investigation. (OOR Final Determination, at 10-13.)
In the Trial Court
In their petitions for review in the trial court, Energy Transfer and the
Township argued that the OOR erred as a matter of law and directly contradicted its
7
prior final determination in Fuller, in which it concluded that the noncriminal
investigation exemption applied to documents that related to the same investigation of
safety issues allegedly caused by Energy Transfer’s drilling activity. (R.R. 205a-06a,
235a-38a.) Cortes again argued that the evidence submitted by the Township and
Energy Transfer to support the application of the noncriminal investigation exemption
was insufficient. (R.R. 356a, 364a-68a.)9
The trial court affirmed the OOR’s Final Determination to the extent that
it directed the Township to produce all documents requested in Category 1.10 The trial
court concluded that the OOR’s Final Determination was distinguishable from that in
Fuller and that the affidavits and Exemption Log submitted by the Township and
Energy Transfer were insufficient to establish the applicability of the noncriminal
investigation exemption:
A review of the exemption log and the affidavits submitted to
support [the noncriminal investigation exemption], however,
fail to disclose specifics regarding the investigations allegedly
conducted and, more significantly, how the records cited in
the log relate to such noncriminal investigations. While
[Designated Appellants’] time and efforts in compiling the
[E]xemption [L]og clearly [were] substantial and constituted
a good-faith effort to qualify these documents for the non[ ]
criminal investigation exemptions, we are constrained to
conclude that the absence of any linkage between the
documents and the investigations themselves prevents the
logs and affidavits from being sufficient to sustain the
[Designated Appellants’] burden on this issue.
Each claim that a record is exempt as relating to an
investigation must be decided on its unique facts, and merely
9
On August 5, 2021, the Township produced additional documents to Cortes that previously
had been withheld solely based on the “common interest” privilege. (R.R. 480a-81a, 522a-26a.)
10
The trial court reversed the OOR’s determination regarding another category of records not
at issue in this appeal.
8
because a record has some connection to an investigation does
not automatically exempt it under the [RTKL]. Central
Dauphin School District v. Hawkins, 199 A.3d 1005 (Pa.
Cmwlth. 2018). In view of the aforesaid inadequacy of
connection between the documents listed in the [Exemption
Log] and any underlying non[ ]criminal investigations, we
conclude that these documents are not exempt from
production under the [RTKL] . . . .
(Trial Court Op. at 7.) Both the Township and Energy Transfer now appeal to this
Court.
II. QUESTIONS PRESENTED
The Township and Energy Transfer raise several issues and sub-issues on
appeal, all of which collectively relate to different aspects of the single overarching
question of whether the Township and Energy Transfer carried their burden to establish
the applicability of the noncriminal investigation exemption to the documents withheld
under Category 1. We will address the several lesser-included issues raised by the
parties at appropriate points in our analysis below.
III. DISCUSSION
A. Applicable RTKL Principles
The objective of the RTKL “is to empower citizens by affording them
access to information concerning the activities of their government.” McGowan v.
Pennsylvania Department of Environmental Protection, 103 A.3d 374, 380 (Pa.
Cmwlth. 2014) (quoting SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa.
2012)). Under the RTKL, records in the possession of a local agency11 are presumed
to be public unless (1) exempt from disclosure under section 708 of the RTKL, 65 P.S.
§ 67.708, (2) protected by privilege, or (3) exempt from disclosure under other law or
11
The Township is a local agency subject to the RTKL. See sections 102 and 302(a) of the
RTKL, 65 P.S. §§ 67.102, 67.302(a).
9
court order. Section 305 of the RTKL, 65 P.S. § 67.305. We construe exemptions
from disclosure narrowly, Carey v. Department of Corrections, 61 A.3d 367, 373 (Pa.
Cmwlth. 2013), and the local agency bears the burden of proving a record is exempt
from disclosure. Id. at 372; 65 P.S. § 67.708(a)(1).
With regard to an agency’s noncriminal investigation, section 708(b)(17)
of the RTKL provides, in relevant 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:
....
(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.
....
(vi) A record that, if disclosed, would do any of the
following:
(A) Reveal the institution, progress or result of an
agency investigation, except the imposition of a
fine or civil penalty, the suspension, modification
or revocation of a license, permit, registration,
certification or similar authorization issued by an
agency or an executed settlement agreement unless
the agreement is determined to be confidential by a
court.
....
65 P.S. § 67.708(b)(17)(i), (ii), (vi)(A). This Court has determined that the term
“investigation” means “a systematic or searching inquiry, a detailed examination, or an
10
official probe.” Department of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa.
Cmwlth. 2010). For this exemption to apply, an agency’s inquiry, examination, or
official probe must be conducted as “part of the agency’s official duties.” Id. at 814.
“As such, in order for an agency to conduct any type of investigation, the investigation
would necessarily be a part of the agency’s official duties.” Id. See also Department
of Public Welfare v. Chawaga, 91 A.3d 257, 259 (Pa. Cmwlth. 2014) (an “official
probe” under section 708(b)(17) is a noncriminal investigation “conducted by an
agency acting within its legislatively granted fact-finding and investigative powers”;
any broader interpretation would “craft a gaping exemption, under which any
governmental information-gathering could be shielded from disclosure”) (citation and
quotation omitted).
With regard to the types of evidence that an agency may submit to satisfy
its burden to establish that otherwise public records are not subject to disclosure,
“[t]estimonial affidavits found to be relevant and credible may provide sufficient
evidence in support of a claimed exemption.” Heavens v. Pennsylvania Department of
Environmental Protection, 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013). Further,
[a]ffidavits 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.
Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc)
(emphasis added) (internal citation omitted). Additionally, “a privilege log, which
typically lists the date, record type, author, recipients, and a description of the withheld
record, can serve as sufficient evidence to establish an exemption, especially where the
information in the log is bolstered with averments in an affidavit.” McGowan, 103
11
A.3d at 381 (citing Heavens, 65 A.3d at 1075-77). Nevertheless, although testimonial
affidavits may provide sufficient evidence to support an exemption to disclosure,
“conclusory affidavits, standing alone, will not satisfy the burden of proof an agency
must sustain to show” that an exemption applies to deny access to records. Office of
the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth.
2017).
Finally, where interested third parties are permitted to participate directly
in RTKL appeals, those parties may submit evidence before the initial fact-finder to
establish exemptions from disclosure, and their interest in protecting records from
disclosure may not be waived by an agency. Pennsylvania Department of Education
v. Bagwell, 131 A.3d 638, 650-51 (Pa. Cmwlth. 2015). See also McKelvey v.
Pennsylvania Department of Health, 255 A.3d 385, 401 (Pa. 2021).
With these principles in mind, we turn to the issues on appeal.12
B. Analysis
Both the Township and Energy Transfer argue on appeal that the trial
court erred as a matter of law in concluding that the evidence submitted collectively to
the OOR and trial court was insufficient to establish by a preponderance of the evidence
that the withheld records “relate to” the Township’s noncriminal investigation of
resident complaints and safety issues regarding Energy Transfer’s pipelines in the
Township.
The trial court concluded that the Massaro Declaration, McMullen
Attestation, and Exemption Log were insufficient to establish the exemption because
they failed to disclose “specifics” regarding both the investigations conducted and how
12
When reviewing a trial court’s order in a RTKL appeal, we determine whether the trial court
committed an error of law or whether its findings of fact are supported by substantial evidence. Paint
Township v. Clark, 109 A.3d 796, 803 n.5 (Pa. Cmwlth. 2015). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Department of
Environmental Resources v. Borough of Carlisle, 330 A.2d 293, 298 (Pa. Cmwlth. 1974).
12
the records included in the Exemption Log relate to those investigations. (Trial Court
Op. at 7.) We disagree. Regarding the existence and subject matter of the Township’s
investigation, the evidence submitted to the OOR and trial court cannot be viewed in a
vacuum. The ongoing investigations of the issues surrounding Energy Transfer’s
pipeline activities in the Township precipitated multiple RTKL requests and appeals, a
PUC investigation and related actions, several public announcement letters issued by
the Township, and a public webpage devoted exclusively to the dissemination of
information collected by the Township during its investigation. Further, the letters
published by the Township to residents clearly indicate that the Township was
conducting an “ongoing investigation” into the safety issues presented by the Mariner
East 2 Pipeline. Although the letters reference a parallel investigation being conducted
by the PUC, they also describe the involvement of Township staff in participating in
onsite assessments and in communicating with the Pennsylvania Department of
Transportation (PennDOT), the PUC, and other third-party engineering firms that had
been engaged to collect information and “assist with independent review.” (R.R. 115a-
16a.) Considered as a whole, the evidence presented to the OOR and trial court clearly
establish that the Township, pursuant to its “official duties,” engaged in an ongoing
“systematic or searching inquiry,” “detailed examination,” or “official probe” to
investigate roadway and subsurface safety threats to Township residents.
Regarding whether the withheld records “relate to” the Township’s
investigations, we disagree with the trial court that the affidavits and Exemption Log
were generic, conclusory, or non-specific. Rather, they detailed the grounds on which
the records were withheld, identified the investigations that the Township was
conducting, and explained the problems that disclosure would cause. The Exemption
Log contains several categories of information indicating the date, subject matter, and
parties involved with each record, many of which identify outright the specific
roadway, pipeline, and safety issue the document regarded. These submitted materials
13
are a far cry from conclusory affidavits that, as a whole, merely recite the claimed
exemption and its statutory language. See, e.g., Department of Health v. Capouillez
(Pa. Cmwlth., No. 585 C.D. 2022, filed November 16, 2022), slip op. at 21-23, 2022
WL 16954345, at *10-*11 (affidavits supporting noncriminal investigation exemption
containing no “specifics” linking requested documents to any investigation conducted
by Department of Health and privilege log containing only the name of, and claimed
statutory exemption for, each withheld record were insufficient to carry the
Department’s burden under section 708(b)(17)).13
Further, although neither the trial court nor this Court are bound by OOR
final determinations, we also conclude that the OOR’s Final Determination in this case
contradicts its prior decision in Fuller, in which it concluded that the Township
properly withheld documents of the same type and subject matter as those involved in
this case. Fuller was not adequately distinguished by either the trial court or OOR, and
the Township was justified in relying on that decision in its partial denial of the
Request.
In Fuller, which concerned a RTKL request submitted to the Township
on July 2, 2020, the requester sought a geophysical survey completed for a road in the
Township because of public safety concerns surrounding Energy Transfer’s Mariner
East 2 Pipeline. Fuller, slip op. at 3 (R.R. 219a-20a.) The Township withheld the
record, relying on section 708(b)(17). In support, the Township submitted the
attestation of Meredith Merino, the Township’s Assistant Open Records Officer.
Fuller, slip op. at 2, 6 (R.R. 219a, 223a.) Merino attested that the record was exempt
under section 708(b)(17) of the RTKL and was the “result of an investigation launched
to understand the geology of the immediate vicinity in which sinkholes had begun
13
Capouillez is cited for its persuasive value in accordance with section 414(a) of the Internal
Operating Procedures (IOP) of this Court. See 210 Pa. Code § 69.414(a).
14
forming after a pipe pull-through of a horizontal directional drilling operation. During
the continued investigation, the Township’s experts requested and were provided
certain documents . . . in order to supervise the investigation process.” Fuller, slip op.
at 6 (R.R. 223a.) Energy Transfer submitted a sworn declaration by its manager of
project compliance, Robert Burke, who attested that the requested record was
completed pursuant to the Township’s investigation of Valley Road. Fuller, slip op. at
7 (R.R. 224a.) The OOR concluded that the Township undertook a “systematic or
searching inquiry, a detailed examination, or an official probe regarding the formation
of sinkholes after certain drilling activity, that the investigation was conducted as part
of the Township’s official duties, and that the investigation involved the Township’s
legislatively granted fact-finding and investigative powers. Accordingly, the requested
records are related to noncriminal investigations and may be withheld.” Fuller, slip
op. at 9 (R.R. 226a) (internal quotations omitted).
The only substantive difference between Burke’s affidavit and the
Massaro Declaration is that Burke’s affidavit identified the name of the roadway
investigated and the name of the geophysical surview being requested. (R.R. 224a.)
But, the Massaro Declaration goes into further detail about the specific nature of the
records requested by Cortes. Although it does not reference a specific roadway, it
nevertheless indicates that the withheld records were voluntarily provided by Energy
Transfer to the Township “pursuant to the Township’s non[ ]criminal investigations of
resident complaints and public safety issues related to Township roadways, property,
and facilities.” (Massaro Declaration, R.R. 90a.) Considered together with the
Exemption Log provided by the Township, which identifies all of the descriptions of
the documents withheld, including roadway names, we conclude that the Township in
this case provided more evidence to support the applicability of the noncriminal
15
investigation exemption than was present in Fuller.14 To the extent that the trial court
concluded to the contrary and found the affidavits submitted in this matter to be
insufficiently specific, it erred.15
Finally, although the purpose of the RTKL is to provide access to
otherwise public records, here, there are public policy interests that support interpreting
section 708(b)(17) as being applicable to the Township’s investigations of resident
complaints and safety issues surrounding the installation of the Mariner East 2 Pipeline.
Much of the information collected from Energy Transfer by the Township was
provided with the understanding that it would remain confidential, at least during the
pendency of the Township’s investigation. Further, the Township’s investigation of
the complaints from its residents and related roadway and subsidence issues caused by
Energy Transfer’s pipeline operations in the Township implicate the same public policy
considerations at issue in Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d
755 (Pa. Cmwlth. 2012). In Gilbert, a reporter from the Wall Street Journal (Gilbert)
submitted a broad RTKL request to the PUC, seeking, among other documents, “all
records” related to “probable violations” identified by the PUC and “pipeline incidents”
reported to the PUC by pipeline operators. Id. at 756-57. The PUC denied the bulk of
the request, relying in part on the noncriminal investigation exemption in section
The investigation of Valley Road is specifically identified in multiple “subject matters” in
14
the Exemption Log. See, e.g., Exemption Log, R.R. 119a, log ##3-5, 14-16.
15
Energy Transfer and the Township argue that the trial court impermissibly relied on this
Court’s prior decision in Central Dauphin School District v. Hawkins, 199 A.3d 1005 (Pa. Cmwlth.
2018), vacated on other grounds, 238 A.3d 337 (Table) (Pa. 2020). The trial court cited Central
Dauphin, but only for the legal principles that (1) RTKL exemptions are narrowly construed, (2) a
local agency bears the burden of proof to establish exemptions by a preponderance of the evidence,
and (3) the mere fact that a record has some connection to an investigation does not automatically
exempt it from disclosure. (Trial Court Op., at 3, 7.) Although we find Central Dauphin to be
substantively distinguishable from this case, we also do not find that the trial court impermissibly
relied on it in rendering its decision.
16
708(b)(17) of the RTKL. Id. at 757. Gilbert appealed to the OOR, which determined
that the PUC did not establish that the requested records were protected by the
noncriminal investigation exemption. Id. In the PUC’s appeal to this Court, we
reversed, concluding that the exemption applied. Id. at 761-62. In doing so, we
recognized:
Allowing access to these investigative materials that may
contain unsubstantiated statements or allegations about an
owner, employee or utility, would be problematic, because
the owner, employee or utility would not be provided the
opportunity to respond to the materials.
Further, strong public policy considerations support
interpreting section 708(b)(17) as being applicable to these
particular inspections/investigations conducted by the PUC’s
[Investigation and Enforcement] gas safety inspectors.
Requiring the PUC to disclose the gas safety inspectors’
notes, employee statements, and other materials related to the
inspections/investigations could lead to owners and
employees being less likely to cooperate and provide relevant
information out of fear of retaliation or public embarrassment.
If individuals are less likely to cooperate in the
inspections/investigations process, then the
inspections/investigations will no longer be an effective
means of monitoring the utilities compliance with statutory
and regulatory requirements.
Id. at 761 (citations omitted).
Here, at the time of the request, the PUC was investigating reported
subsidence incidents in the Township allegedly caused by Energy Transfer’s Mariner
East 2 Pipeline. The Township clearly conducted its own investigation, utilizing
information received from the PUC, PennDOT, and other third-party engineering firms
(like that involved in Fuller) to gather information, make conclusions, and report
results to Township residents. Although we do not conclude that the trial court ignored
17
or failed to consider altogether the public policy interests supporting the application of
the noncriminal investigation exemption in this case, we nevertheless do conclude that
those interests militate in favor of applying the exemption here.
IV. CONCLUSION
We accordingly are constrained to conclude that the trial court erred in
holding that the Township and Energy Transfer did not satisfy their burden to establish
the applicability of the section 708(b)(17) noncriminal investigation exemption. We
therefore reverse the trial court’s determination to the extent that it directed the
Township to produce documents withheld under that exemption.16
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Fizzano Cannon did not participate in this decision.
16
We note that this Court recently reversed, albeit on slightly different grounds, an OOR final
determination in which it directed disclosure of PUC records “that relate to pipeline projects,
including Mariner East 1, 2, and 2X pipeline project[s].” See Energy Transfer v. Rebecca Moss and
Spotlight PA, 288 A.3d 957, 959 (Pa. Cmwlth. 2023).
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Energy Transfer, : CASES CONSOLIDATED
Appellant :
:
v. :
:
Samuel Cortes and :
Middletown Township : No. 1296 C.D. 2021
:
:
:
Middletown Township :
:
v. :
:
Samuel Cortes and :
Energy Transfer :
:
Appeal of: Energy Transfer : No. 1297 C.D. 2021
:
:
Middletown Township, :
Appellant :
:
v. :
:
Samuel Cortes and :
Energy Transfer : No. 1298 C.D. 2021
:
:
Energy Transfer :
:
v. :
:
Samuel Cortes and :
Middletown Township :
:
Appeal of: Middletown Township : No. 1311 C.D. 2021
ORDER
AND NOW, this 14th day of April, 2023, the October 15, 2021 order
of the Court of Common Pleas of Delaware County, Pennsylvania (trial court),
hereby is REVERSED to the extent that it required Middletown Township to
produce documents withheld pursuant to section 708(b)(17) of the Right-to-Know
Law.1 The Township need take no further action with regard to those documents.
The trial court’s order otherwise is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge
1
Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(17).