S.M. Donahue v. City of Hazleton

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Appellant :
:
v. : No. 1333 C.D. 2020
: No. 1334 C.D. 2020
: Submitted: June 17, 2022
City of Hazleton :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: June 2, 2023
In these consolidated appeals, Sean M. Donahue (Requester), pro se, appeals
from the December 14, 2020 Order of the Court of Common Pleas of Luzerne
County (common pleas) granting in part and denying in part Requester’s appeals
from the Final Determinations of the Office of Open Records (OOR), OOR AP
2019-1120 (Appeal of the July Request) and OOR AP 2019-1542 (Appeal of August
Request). These appeals related to two Right-to-Know Law1 (RTKL) requests to the
City of Hazleton (City) and the City’s Police Department (Police Department) made,
respectively, on July 5, 2019 (July Request), and August 6, 2019 (August Request).2
In his Appeal of the July Request,3 Requester argues common pleas erred by failing
to address the OOR’s Final Determination related to the July Request. In his Appeal
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
Common pleas disposed of the two appeals from the OOR Final Determinations in a
single order from which Requester filed two separate appeals to this Court. This Court
consolidated the appeals by order dated June 8, 2021.
3
This Court assigned Docket No. 1334 C.D. 2020 to this appeal.
of the August Request,4 Requester argues common pleas lacked jurisdiction to order
redaction of certain records because unredacted copies of those records were
produced in federal litigation, and common pleas erred in relying on affidavits that
were insufficient to establish the public safety exception and not addressing all of
the issues raised in his notices of appeal.5 Upon careful review, we affirm.
I. BACKGROUND
A. Appeal of the July Request
On July 5, 2019,6 Requester sent the July Request via email to the Police
Department’s Chief of Police (Police Chief), requesting the following:
RTK[L] Request I. Please email to me copies of all documents in the
possession of the [] Police Department that define the following[;]
(1) Actions [that] could get a person shot by [Police Department].
4
This Court assigned Docket No. 1333 C.D. 2020 to this appeal.
5
Requester also asserts this Court has original jurisdiction and can issue a declaratory
judgment in this matter pursuant to Section 761(a) of the Judicial Code, 42 Pa.C.S. § 761(a),
“because all police officers in Pennsylvania are sworn Pennsylvania officers, regardless of which
municipality they work for,” and under Section 761(b) and (c) of the Judicial Code, the Court can
“issue a declaratory judgement [sic] that creates a new rule of law mandating full disclosure, under
[the] RTKL, of” all records and documents related to the police’s use of force, police tactics, and
policy manuals regarding that use of force. (Requester’s Brief at 1.) Contrary to Requester’s
assertion, this Court’s original jurisdiction under Section 761(a) and (b) relates only to “officer[s]”
of the “Commonwealth government,” 42 Pa.C.S. § 761(a), (b), and does not include local police
officers or departments, see Section 102 of the Judicial Code, 42 Pa.C.S. § 102 (excluding from
the definition of Commonwealth government “any political subdivision, municipal or other local
authority, or any officer . . . of any such political subdivision or local authority”). Further, Section
761(c) relevantly provides for original jurisdiction “in cases of mandamus and prohibition to courts
of inferior jurisdiction . . . where such relief is ancillary to matters within its appellate jurisdiction.”
42 Pa.C.S. § 761(c). Requester’s asserted ancillary original jurisdiction matter does not fall within
the ambit of Section 761(c).
6
Although Requester emailed the July Request on July 3, 2019, it was after hours and,
therefore, the Police Department, and later the OOR, treated the request as being filed on July 5,
2019, the next business day.
2
(2) Actions [that] would get a person shot by [Police [Department].
(3) Actions by police that would render it legal for citizens to use lethal
force against police.
(4) Actions by police [that] would obligate citizens to use lethal force
against police.
RTK[L] Request II. Please email me copies of all documents in the
possession of the [Police Department] that define whether or not it
would be legal or illegal for citizens to use lethal force against [Police
Department] if the actions taken by police in [the] Lonmin Marikana
massacre [sic].
Below is a link to the video of the event.
https://youtu.be/d1IBAAH4SzA
[RTKL Request] III. Please provide your personal answers to the above
questions, ex [sic] RTK[L] . . . .
(Original Record (O.R.), CP Docket No. 2019-13430, Item 15 Exhibit (Ex.) 1; Bates
Number 65.7) The Police Department did not respond within five days of its receipt
of the July Request and, therefore, it was deemed denied. Section 901 of the RTKL,
65 P.S. § 67.901 (“If the agency fails to send the response within five business days
of receipt of the written request for access, the written request for access shall be
deemed denied.”).
Requester appealed the deemed denial to the OOR on July 15, 2019, arguing
the requested records were public because police use of lethal force against the
7
Requester did not file a reproduced record in this matter, but he attached to his brief the
record from the OOR. For ease, the Court will identify items using their Original Record item
number and the Bates Number used in the attachments to Requester’s brief. The original record
for CP-2019-13430 includes most of the records related to both appeals, while the original record
for CP-2019-13311 contains only the records related to the Appeal of the August Request. Thus,
unless otherwise noted, references to the “Original Record” are to the record filed in CP-2019-
13430.
3
public is an issue of public concern and it is crucial for the public to be able to access
any policies regarding the use of such force. The Police Department filed two
affidavits in response: one by its Open Records Officer (Records Officer) and one
by the Police Chief. Both affidavits attested their review of the July Request
reflected that the July Request was overly vague, was not submitted on a proper
form, and Requester sought answers to questions, rather than documents.8 Records
Officer further attested the City did not possess documents responsive to the July
Request, and Police Chief attested the Police Department operated within federal
and state guidelines for criminal procedure. Requester responded the RTKL
contains no requirement that a request be made on a particular form and the July
Request clearly sought copies of published policies.
The OOR denied Requester’s appeal and held the Police Department did not
have to take any further action. Relevantly, the OOR held Requests I and II of the
July Request required the Police Department to conduct legal research by locating
applicable laws governing the use of force and apply them to hypothetical situations.
(Final Determination for the Appeal of the July Request at 5-6 (citing Askew v. Pa.
Off. of the Governor, 65 A.3d 989 (Pa. Cmwlth. 2013)).9) Accordingly, the OOR
concluded the July Request was insufficiently specific, denied the appeal, and
advised Requester that any appeal had to be filed with common pleas within 30 days.
Despite the OOR’s direction, Requester filed a petition for review with this
Court. The Police Department challenged this Court’s jurisdiction because the
appeal involved a request to a local, not state, agency. This Court agreed it lacked
8
The Police Department’s submissions to the OOR are found in Item 15 Exhibits 3-4 of
the Original Record and at Bates Numbers 139-49.
9
The Final Determination for the Appeal of the July Request is found at Item 15 Exhibit 9
of the Original Record and at Bates Numbers 58-64.
4
jurisdiction and, pursuant to Section 5103(a) of the Judicial Code, 42 Pa.C.S.
§ 5103(a), transferred the matter to common pleas for its review. Donahue v.
Hazleton City Police Dep’t (Pa. Cmwlth., No. 1051 C.D. 2019, filed Mar. 12, 2020).
This Court transferred the record related to the Appeal of the July Request to
common pleas.
B. Appeal of the August Request
Requester submitted the August Request to the City on August 6, 2019,10
which sought:
1) . . . [A] copy of the current tactics manual and policy that is used by
the Hazleton Special Operations Group [(SOG)], as well as the one
used at the time of my arrest on August 21, 2012.
2) . . . [A] copy of the current [] Police Department’s policy that guides
police officers as to when and how to use lethal force against a
citizen, when and how to use lethal force against a fellow police
officer and how to recognize when the use of lethal force by a citizen
against a police officer is justified and also to recognize when a
police officer must intervene on the side of a citizen to protect that
citizen from another police officer.
3) . . . [A] copy of the policies that were in effect regarding the very
same matters raised in request “2)” during the time of my arrest of
August 21, 2012.
4) . . . [A] copy of the current policies, as well as the policies that were
in effect at the time of my arrest on August 21, 2012[,] for the [SOG]
regarding the same matters being raised in requests “1)” and “2)”.
5) . . . [A] copy of ALL warrants that were issued against me during
the three months leading to my arrest on August 21, 2012[,] and all
warrants that were issued in relation to this case after my arrest,
10
Requester submitted the August Request on August 4, 2019, a Sunday; however, it was
not received by Records Officer until August 6, 2019. (O.R. Item 10 Ex. A; Bates Number 221.)
5
regardless of which law enforcement agency was involved in those
warrants.
6) . . . [D]ocumentation that clarifies how many federal agents and
other personnel, including city agency personnel, ambulance,
county, state, federal, etc. . . . entered my family’s home and[/]or
walked into, and[/]or onto, the property and[/]or, spoke to my
neighbors during the night of the arrest on August 21, 2012.
7) . . . [C]opies of all warrants that were issued against me during the
12 months leading up to the arrest and since the arrest in which the
[Police Department] were (1) involved and/or (2) aware of.
8) . . . [A] copy of the documentation that proves which [Police
Department] officers identified themselves to my neighbors as
federal agents the night of the arrest.
9) . . . [A] copy of the documentation that shows want [sic] how many
other agencies had people enter my family’s home during the night
of the raid.
10) . . . [A] copy of all sneak and peak warrants, wiretap warrants,
etc. and other documentation (1) that [Police Department] used to
conduct surveillance of me and investigate me in the 6 months
leading up to my arrest and in the time since my arrest; AND (2)
documentation [sic] that full[y] discloses any and all such warrants
and unwarranted surveillance activities that occurred during that
same time frame that [Police Department] are aware of.
11) . . . [A] copy of the policies that were in effect at the time of my
arrest, and the policies in effect now, to guide [Police Department]
and the [Police Department SOG] in using temperature, i.e., hea[t]
& cold, to get a person out of a home during an arrest.
12) . . . [A] complete copy of any and all documentation created by
the Hazleton Fire Department and any other agency that documents
the ALLEGED discovery of carbon monoxide fumes in my family’s
home on the night of my arrest of August 21, 2012.
(O.R. Item 10 Ex. A; Bates Number 219.) After invoking the 30-day extension
provision of Section 902(b) of the RTKL, 65 P.S. § 67.902(b), the City issued a
6
response on September 11, 2019, agreeing to provide Requester with records related
to paragraph 12.11 However, it asserted disclosure of records in response to
paragraph 1 would threaten personal security and, therefore, were exempt from
disclosure under Section 708(b)(1)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii).
Finally, the City stated paragraph 6 was not a request for a specific record and no
records responsive to paragraphs 2 through 11 existed within the City’s possession,
custody, or control and were “covered under PA State Law.” (City’s Response at 1-
2.)
Requester appealed to the OOR, challenging the partial denial and the reasons
proffered by the City. After the OOR invited the parties to supplement the record,
the City provided a position statement and an affidavit from Records Officer, and
argued the August Request was really discovery related to Requester’s federal
lawsuit against the City arising from his August 21, 2012 arrest.12 Requester
responded that records responsive to paragraph 1 would not threaten personal
security and records responsive to the other paragraphs existed. Upon the OOR’s
request for additional evidence, the City submitted the affidavit of Detective
Lieutenant William Gallagher (Detective Gallagher) regarding how disclosure of
records responsive to paragraph one, including the SOG Manual, could lead to risks
of personal security.13 Requester filed a supplemental position statement challenging
Detective Gallagher’s Affidavit.
11
The City’s response is found in Item 10 Exhibit A of the Original Record and Bates
Numbers 222-24.
12
Records Officer’s Affidavit is found in Item 10 Exhibit F of the Original Record and
Bates Numbers 341-43.
13
Detective Gallagher’s Affidavit is found in Item 10 Exhibit I of the Original Record and
Bates Numbers 609-10.
7
After considering the position statements and affidavits, the OOR held the
City had proven, through the Affidavits of Records Officer and Detective Gallagher,
that disclosing records responsive to paragraph 1 was reasonably, likely to result in
a substantial and demonstrable risk of physical harm to, or the personal security of
individuals, specifically, members of the SOG Unit, thereby exempting the SOG
Manual from disclosure under Section 708(b)(1)(ii) of the RTKL. (Final
Determination for the Appeal of the August Request at 7-8.14) The OOR indicated
that, per Detective Gallagher’s Affidavit, the SOG Manual provides information
about SOG’s equipment and tactics, which would allow suspects to counter and
neutralize those tactics and equipment. Allowing this, could result in “a very real”
threat against SOG Unit members by “‘providing a blue print to the public’” of the
“‘steps taken by law enforcement during a SOG Unit encounter’” and “‘can directly
cause harm to a SOG member’s safety.’” (Id. at 7 (quoting Detective Gallagher’s
Affidavit).) Further, the OOR credited the “professional opinions of individuals
assessing the risk of security and [would] not substitute its judgment for that of those
with far more familiarity with the issues involving public safety. (Id. at 8 (citing Pa.
State Police v. Am. Civ. Liberties Union of Pa. (Pa. Cmwlth., No. 1066 C.D. 2017,
filed May 18, 2018)).15) Thus, the OOR held the SOG Manual was exempt from
disclosure.
The OOR also held that paragraphs 5, 7, and 10, which sought warrants, were
requests for judicial records, not records “of” the City, and were not disclosable
14
The Final Determination for the Appeal of the August Request is Item 10 Exhibit K of
the Original Record and found at Bates Numbers 202-11.
15
Unreported panel decisions of this Court, while not precedential, may be cited for their
persuasive authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b)(1), Pa.R.A.P.
126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a).
8
under the RTKL. (Id. at 10 (citing Phila. Dist. Att’y’s Off. v. Stover, 176 A.3d 1024(Pa. Cmwlth. 2017)).) The OOR rejected the City’s argument that paragraph 6 was
a question and not a request for records, holding this paragraph sought
documentation the City may have created or received regarding a particular event.
As for the City’s argument that there were no responsive records within its
possession regarding the other paragraphs, the OOR held the City did not provide
evidence reflecting it had searched for the records, and, therefore, failed to meet its
burden of proving responsive records did not exist in its possession, custody, or
control. For these reasons, the OOR denied Requester’s appeal as to paragraphs 1,
5, 7, and 10, granted Requester’s appeal as to records related to paragraphs 2-4, 6,
8-9, 11, and directed the City to provide those records to Requester within 30 days.16
Requester appealed to common pleas.
C. Appeals to Common Pleas
In the Petition for Review of the Appeal of the July Request, initially filed in
this Court but transferred to common pleas, Requester asserted the OOR erred in
denying the appeal because the OOR did not address all of the requests made in the
July Request. He further argued the request did not require the Police Department
to perform any legal research, but, rather, sought disclosure of the handbook the
Police Department gives to its police officers. Requester asserts the handbook, and
policies contained therein, exist because Requester overheard conversations between
police officers regarding the existence of such handbooks. According to Requester,
the Police Department has these policies but is refusing to release them to him
because of the ongoing litigation Requester has against the City in federal court.
16
The City did not file a cross-appeal.
9
In Requester’s Petition for Review from the Appeal of the August Request,
he argued the OOR erred in exempting the SOG Manual from disclosure because it
is a public record, where the City already released the document in discovery in the
federal lawsuit he filed against the City. Requester asserted such document should
not be public for some citizens but exempt from disclosure for other citizens, and
the City is not attempting to protect the police officers from harm, but seeks to
protect itself from being held accountable for its actions. According to Requester,
the City had not established the release of the requested records would result in
physical harm to police officers. Requester further argued the OOR erred in finding
that the records responsive to paragraphs 5, 7, and 10 were exempt because the
request was not only for warrants and judicial records, but also for records in the
City’s possession and were disclosable.
Following oral argument, common pleas directed the City to produce a copy
of its “Police Tactics Manual and Policy” for in camera review. (Common Pleas’
Dec. 14, 2020 Order.17) The City provided common pleas with its “Standard
Operating Procedure for the Hazleton [SOG],” the SOG Manual, for review. (Id.)
After its in camera review of the SOG Manual, common pleas issued its December
14, 2020 Order, which was captioned with both of Requester’s appeals from the
OOR’s Final Determinations. In that Order, common pleas granted Requester’s
“Petition” in part, denied it in part, and directed the City to produce specific parts of
the SOG Manual with other parts to be redacted and not produced. (Id.) Thereafter,
the City produced the SOG Manual to Requester with the relevant redactions made.
17
Common Pleas’ December 14, 2020 Order is Item 27 of the Original Record and Bates
Numbers 2-5.
10
Requester filed two Notices of Appeal. In the notice addressing the Appeal
of the July Request,18 Requester relevantly argued common pleas did not address his
appeal from the OOR’s Final Determination related to the July Request. In the notice
addressing the Appeal of the August Request, 19 Requester argued common pleas
addressed only paragraph 1 of the August Request, leaving paragraphs 2-11
unaddressed. Requester further asserted common pleas lacked jurisdiction to order
the redactions set forth in the December 14, 2020 Order because the document
disclosed by the City appeared “to be the exact same document that [Requester]
submitted to the OOR as part of” the Appeal of the August Request, which was
provided, in unredacted format, during discovery in the federal litigation. (Notice
of Appeal for the Appeal of the August Request at 3.) Requester contended that
because the record has been disclosed without redaction, it is already a “public
record at various federal dockets,” and common pleas “cannot get the genie back
into the bottle” by now ordering its redaction under the RTKL. (Id.) In both Notices
of Appeal, Requester asserted full disclosure of the City’s use of force policies is
necessary to allow for meaningful public debate regarding such use of force, which
is an important matter of public interest.
Common pleas issued an opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), Pa.R.A.P. 1925(a), in response to Requester’s appeals. Common
pleas considered the two Notices of Appeal and concluded that the Notice of Appeal
related to the Appeal of the August Request “substantively subsume[d]” the Notice
of Appeal for Docket 13430. (Common pleas’ 1925(a) opinion (1925(a) Op.) at 3.20)
18
This Notice of Appeal is Item 29 of the Original Record and Bates Numbers 29-32.
19
This Notice of Appeal is Item 32 of the Original Record for Docket 13311 and Bates
Numbers 161-66.
20
The 1925(a) Opinion is Item S2 in the Supplemental Record for Docket 13430 and Bates
Numbers 8-13.
11
Common pleas described Requester’s substantive arguments as challenging: (1)
common pleas’ jurisdiction to order redaction of the record responsive to paragraph
1 due to the documents already having been disclosed in the federal litigation; and
(2) common pleas’ failure to address paragraphs 2 through 11 of the request.21
As to paragraph 1, common pleas explained it crafted its order following the
in camera review of the provided SOG Manual and balanced the “competing
interests between the right to public disclosure and the need to exempt sensitive
public safety information.” (Id.) In partially overruling the OOR’s determination
that all records responsive to paragraph 1 were exempt from disclosure under Section
708(b)(6)’s personal security exception, common pleas considered each element of
that test. Ultimately, common pleas held the City had met its burden of proving that
disclosure of certain parts of the records would threaten personal security. Common
pleas agreed with the OOR’s reliance on the affidavits of Records Officer and
Detective Gallagher to show releasing the entire SOG Manual was reasonably likely
to result in a substantial and demonstrable risk of physical harm to or the personal
security of police officers. As for paragraphs 2 through 12 and the remainder of the
OOR’s Final Determination, common pleas indicated it agreed with the OOR’s
determinations as to paragraphs 2 through 11 and otherwise “declined to disturb the
[OOR’s] Final Determination regarding [Requester’s] remaining [RTKL]
Requests.” (1925(a) Op. at 9-13.)
21
Although Requester included paragraph 12 in the Notice of Appeal, the City provided
responsive records to Requester. Therefore, both the OOR and common pleas found Requester’s
challenge moot.
12
II. DISCUSSION
Initially, the Court observes Requester’s brief mainly asserts public policy
reasons he believes favor the broad disclosure of the requested records without any
redaction, primarily asserting the SOG should not be allowed to operate in secret.22
(See, e.g., Requester’s Br. at 42-44.) Requester seeks to have this Court review this
matter “anew” and “create a new rule of law requiring full disclosure under [the]
RTLK [sic] of all records and policies that are in any way related to police force
capabilities, tactics and the policies that allow for force to be used based on
executive, rather than judicial, interpretations of the law.” (Id. at 45.)
However, in reviewing common pleas’ Order, “[o]ur standard of review in a
[RTKL] case is whether an error of law was committed, constitutional rights were
violated, or necessary findings of fact are supported by substantial evidence.” Silver
v. Borough of Wilkinsburg, 58 A.3d 125, 127 n.2 (Pa. Cmwlth. 2012). Thus, we do
not consider these cases “anew,” but review common pleas’ determination for error.
Nor is it the judiciary’s role to create new laws based on public policy, as such
determinations are for the General Assembly. Commonwealth v. Torsilieri, 232
A.3d 567, 583-84 (Pa. 2020) (stating courts should be cognizant of their respective
role and “remain mindful that the wisdom of a public policy is one for the
legislature” subject to constitutional limitation) (internal quotation marks and
citation omitted). Accordingly, the Court will consider Requester’s arguments and
requests for disclosure within the parameters of what the General Assembly has
22
Requester’s brief also contains numerous ad hominem attacks against, among others, the
City, the Police Department, Police Chief, and common pleas, and arguments related to his federal
litigation against the City. Like Requester’s public policy arguments, the Court will not consider
these parts of Requester’s brief.
13
authorized in the RTKL, an authorization which is subject to the express limitations
set forth in that law.
A. Appeal of the July Request
Requester first argues on appeal that common pleas did not address his
challenge to the OOR’s Final Determination denying his appeal from the City’s
denial of his July Request. According to Requester, common pleas’ 1925(a) Opinion
did not mention the Appeal of the July Request, and this case was not completely
subsumed into the Appeal of the August Request; therefore, it had to be separately
addressed. The City does not respond to Requester’s arguments.
The procedural history in this matter reflects Requester’s appeals from the
OOR’s Final Determinations were consolidated for consideration. During
proceedings before common pleas on August 3, 2020, Requester stated the “two
right-to-know requests [were] for almost the same information, but they sort of
overlap each other. One asks for some additional information, additional records.”
(Transcript at 9.23) Common Pleas’ December 14, 2020 Order lists the docket
numbers for both of Requester’s appeals from the OOR’s Final Determinations as
being covered by the Order. While this Order does not separately address the Appeal
of the July Request and Requester’s July Request, common pleas was aware this
appeal was at issue, it requested “almost the same information” as in the other
request per Requester’s own statements, (id.), and, in fashioning relief, common
pleas granted Requester’s relief only to the extent it ordered disclosure of the SOG
Manual with redactions. We read the December 14, 2020 Order as denying
Requester’s appeal from the OOR’s Final Determination for the Appeal of the July
Request. In its 1925(a) Opinion, which also lists the docket numbers for both of
23
The Transcript is Item 16 in the Original Record and Bates Numbers 21-27.
14
Requester’s appeals, common pleas ended with a statement that it “declined to
disturb the [OOR’s] Final Determination regarding [Requester’s] remaining [RTKL]
Requests.” (1925(a) Op. at 13.) Requester’s “remaining [RTKL] Requests” ruled
upon by the OOR include those at issue in the Appeal of the July Request. (Id.) We
view this statement to mean common pleas was not disturbing, and was, essentially,
adopting the OOR’s determinations, which denied Requester’s appeal and found the
July Request to be insufficiently specific. In reviewing OOR final determinations,
common pleas is “allow[ed to] adopt[] the appeals officer’s factual findings and legal
conclusions when appropriate.” Bowling v. Off. of Open Recs., 75 A.3d 453, 474
(Pa. 2013).
Concluding common pleas adopted the OOR’s reasoning for denying
Requester’s appeal, we have reviewed that reasoning and discern no error in that
determination. Throughout the July Request, Requester asked for the Police
Department to:
RTK[L] Request I. Please email to me copies of all documents in the
possession of the [Police Department] that define the following?
(1) Actions [that] could get a person shot by [Police Department].
(2) Actions [that] would get a person shot by [Police Department].
(3) Actions by police that would render it legal for citizens to use
lethal force against police.
(4) Actions by police [that] would obligate citizens to use lethal
force against police.
RTK[L] Request II. Please email me copies of all documents in the
possession of the [Police Department] that define whether or not it
would be legal or illegal for citizens to use lethal force against [Police
Department] if the actions taken by police in [the] Lonmin Marikana
massacre [sic].
15
Below is a link to the video of the event.
https://youtu.be/d1IBAAH4SzA
[RTKL Request] III. Please provide your personal answers to the above
questions, ex [sic] RTK[L] . . .
(Bates Number 65.) In denying Requester’s appeal, the OOR credited the affidavits
of Police Chief and Records Officer that responding to these requests would require
the Police Department to perform legal research and analysis to hypothetical
situations, which, the OOR held, rendered the request insufficiently specific.
Section 703 of the RTKL requires “[a] written request [to] 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, and if a request requires an agency
to determine exactly what provisions of laws might address a request, the request is
insufficiently specific, Askew, 65 A.3d at 993 (quotation marks omitted). “[A]
request necessitating the performance of traditional legal research and analysis to
form the basis of a legal opinion makes [a] request unspecific in nature,” and a
request that “implicitly obliges legal research is not a request for a specific
document” but “for someone to conduct legal research with the hopes that the legal
research will unearth a specific document that fits the description of the request.”
Id. While Requester purported to seek documents in the possession of the Police
Department, of which Records Officer indicated there were none, (Final
Determination for the Appeal of the July Request at 6 n.2), Requester “essentially
requested the [Police Department] to locate any and all laws and/or legal documents
related to” the use of force by and against police. Askew, 65 A.3d at 993. To respond
to the July Request, the Police Department would not only be required to perform
legal research to obtain the requisite legal standards on the use of force, but it also
16
would have to think up innumerable hypothetical situations, or examine a situation
on a YouTube video, and apply the legal standards to those situations. As the OOR
held, and common pleas did not disturb, such request is insufficiently specific under
Section 703 of the RTKL. Id. Therefore, we discern no error in the denial of the
Appeal of the July Request.
Requester further asserts common pleas erred by ignoring paragraphs 5
through 11 of his Notice of Appeal addressing the Appeal of the July Request.
Reviewing those paragraphs and the reasoning adopted by common pleas, we
conclude they do not provide a basis for reversing common pleas’ Order. The
majority of these paragraphs involve Requester’s public policy positions, rather than
assertions of legal error, (Notice of Appeal for the Appeal of the July Request ¶¶ 5-
9), and, accordingly, need not have been addressed, see supra pages 12-13.
Paragraphs 10 and 11 contend the City had to identify documents which its officers
would be directed to review on the use of force and that deposition testimony by a
former Police Department Police Chief (former police chief) indicated such
documents exist. (Id. ¶¶ 10-11 (citing Dep. of Frank V. DeAndrea, Jr., Attachment
16.10 of Requester’s Br.).) However, these paragraphs do not reflect what was
sought in the July Request. The July Request did not seek use of force policies, but,
as discussed above, asked for documents that would answer his specified questions,
i.e., what actions could get an individual shot or would justify violence against the
police. Responding to the July Request, as the OOR concluded and common pleas
upheld, would require legal research and hypothesizing potential scenarios to which
that research could be applied, making the request insufficiently specific under
Section 703 of the RTKL. Accordingly, these are not reasons to reverse common
17
pleas’ Order that affirmed the OOR’s Final Determination for the Appeal of the July
Request.
B. Appeal of the August Request
Requester asserts several reasons why common pleas erred in resolving the
Appeal of the August Request, including challenges to the sufficiency of the
Affidavits of Records Officer and Detective Gallagher, common pleas jurisdiction
to order redactions, and the completeness of common pleas’ decision.
1. Were the Affidavits sufficient to support the personal safety exception?
Requester first argues common pleas erred in affirming the OOR’s
determination because Records Officer’s and Detective Gallagher’s Affidavits are
insufficient to support the application of the personal safety exception. According
to Requester, neither Records Officer’s nor Detective Gallagher’s Affidavit indicates
whose personal safety is at risk if the responsive records, SOG policies, tactics, and
capabilities, are disclosed without redaction. Those Affidavits, Requester contends,
are speculative and conclusory, and, therefore, are insufficient to meet the City’s
burden of proof. Further, to the extent common pleas relied on the public safety
exception found in Section 708(b)(2), Requester asserts this was not raised by the
City or Police Department and, therefore, is waived. Even if it was not waived,
Requester contends that Records Officer does not have the familiarity with issues of
public safety to support her statements in her Affidavit and that the Affidavit is not
credible. According to Requester, Detective Gallagher’s Affidavit regarding the
risks of disclosing these records is “hypothetical storytelling” because most of the
materials sought are already released by other law enforcement agencies.
(Requester’s Br. at 67.) Requester maintains there is a greater substantial and
18
demonstrable risk to the public’s safety in maintaining the secrecy resulting from
not disclosing the responsive records than in preventing their disclosure, and
common pleas erred in not considering the risk posed by this secrecy.
The City responds the Affidavits were sufficient for it and the Police
Department to meet their burden of proving by a preponderance of the evidence that
an exception under Section 708(b) applied. Even if the Affidavits did not meet that
burden, the City argues, common pleas performed its own in camera review of the
responsive records and made its own determination that the burden of proof was
satisfied, at least as to the parts of the SOG Manual ordered to be redacted.
Under the RTKL, the burden is on the governmental agency to prove, by a
preponderance of the evidence, the applicability of a RTKL exception. See 65 P.S.
§ 67.708(a)(1); Pa. State Police v. Kim, 150 A.3d 155, 157 (Pa. Cmwlth. 2016). “A
preponderance of the evidence under the RTKL is ‘tantamount to a more likely than
not inquiry.’” Pa. State Police, 150 A.3d at 157 n.5 (quoting W. Chester Univ. v.
Schackner, 124 A.3d 382, 393 (Pa. Cmwlth. 2015)). Generally,
[a]ffidavits are the means through which a governmental agency details
the search it conducted for the documents requested and 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. . . .
Off. of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc)
(citation omitted); see also McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374,
382-83 (Pa. Cmwlth. 2014) (generally, where “no evidence has been presented to
show that [an agency] acted in bad faith, the averments in [that agency’s] affidavits
should be accepted as true”). However, conclusory or speculative statements in an
19
affidavit, such as in the affiant’s professional opinion the disclosure of the
information would meet the standard of the relevant exception, are insufficient.
Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 376 (Pa. Cmwlth. 2013); Harrisburg Area
Cmty. Coll. v. Off. of Open Recs. (Pa. Cmwlth., No. 2110 C.D. 2009, filed May 17,
2011), slip op. at 12-14.
In its initial response to the August Request, the City asserted the records
responsive to paragraph 1 were exempt from disclosure pursuant to Section
708(b)(1), which is the personal security exception to disclosure. Although common
pleas invoked Section 708(b)(2), the public safety exception, as an additional reason,
the City did not raise this exception in its initial response, or in its arguments before
the OOR or common pleas. Therefore, we will consider only whether it was error
to conclude the City met its burden of proving the application of the personal security
exception applied to the redacted portions of the SOG Manual.
Section 708(b)(1)(ii) states “the following are exempt from access by a
requester under this act: . . . [a] record, the disclosure of which[] . . . 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). To establish
this exception, the agency must establish: “(1) a ‘reasonable likelihood’ of
(2) ‘substantial and demonstrable risk’ to an individual’s security if the information
is not protected.” Carey, 61 A.3d at 373. A “substantial and demonstrable risk”
means “actual or real and apparent” and “‘[m]ore than mere conjecture is needed.’”
Id. at 373-74 (quoting Governor’s Off. of Admin. v. Purcell, 35 A.3d 811, 820 (Pa.
Cmwlth. 2011)). However, where there is a heightened risk of personal security
concerns, such as in a prison setting, “representations regarding perceived threats to
. . . personnel” may be persuasive. Carey, 61 A.3d at 374. Thus, in Carey, we held
20
records responsive to a request for the identities of prison authorities who authorized
transfers of inmates to out-of-state prisons were exempt from disclosure under this
exception based on affidavits indicating inmates may retaliate against those officials.
Id.In his Affidavit, Detective Gallagher explained, generally, the contents and
purpose of the SOG Manual, and how disclosing the SOG Manual could lead to
dangers to SOG members’ safety. In particular, Detective Gallagher stated:
3. Allowing the public access to the information regarding equipment
used by the SOG Unit could lead to suspects utilizing countermeasures
which could affect officer safety;
4. For example, if the SOG Unit determined that tear gas needed to be
deployed, a suspect with knowledge of the operations manual would be
in a position to counter and neutralize the effectiveness of this tool;
5. Also, if the SOG Unit is required to breach a structure, public
knowledge of the type of body and/or shield armor being utilized could
allow a suspect prepare countermeasures to bypass these safety
measures; [and]
6. In today’s society with the numerous active shooter/violent
encounters facing law enforcement, providing a blue print to the public
or steps taken by law enforcement during a SOG Unit encounter, can
directly cause harm to a SOG member’s safety.
(Detective Gallagher’s Affidavit ¶¶ 3-6.) Records Officer similarly explained how
disclosing the SOG Manual, which includes SOG Unit tactics, could result in safety
risks. Specifically, Records Officer stated:
7. [] Requester is requesting a tactics manual of the . . . [SOG]. The
[SOG] operates as a SWAT team, SWAT teams or SOG Units are
called in when an incident presents significant risk to law enforcement
or the public. The disclosure of the SOG [U]nit’s tactical manual could
or would result in real damage to an officer’s person or the person of
those individuals involved in an incident in which the SOG Unit
21
responds. In the case of hostage situations or active shooters, a
significant level of precise maneuvering and surprise is crucial to
ending situations with minimal harm to officers, the public, and the
offender. Dissemination of the SOG Unit’s tactical manual would be
reasonably likely to result in substantial risk to police officers, the
public, and offenders.
(Records Officer’s Affidavit ¶ 7.)
Although Requester argues the Affidavits were insufficient for a number of
reasons, those arguments are unpersuasive. Requester first asserts the Affidavits
failed to identify whose personal security was at risk. It is apparent from the
Affidavits that the individuals at risk are the individual SOG members, as well as
others who may be involved in the SOG Unit’s activities. Requester next attacks the
Affidavits as being conclusory or speculative, but such arguments are similarly
unpersuasive. The Affidavits provide specific examples and explain the nexus
between how disclosing the SOG Manual could place SOG members’ personal
security at risk, as well as how disclosure could result in a substantial and
demonstrable risk of harm to those members. Thus, they are neither conclusory nor
speculative so as to render them insufficient. Requester finally argues Detective
Gallagher and Records Officer are not credible because, among other reasons, these
types of materials are disclosed by other law enforcement agencies and Records
Officer lacks experience in law enforcement. Although it decided to perform its own
in camera review of the documents, common pleas found the Affiants credible, and
“[a]bsent evidence of bad faith, the veracity of an agency’s submissions explaining
reasons for nondisclosure should not be questioned,” Scolforo, 65 A.3d at 1103. We
discern nothing in the record warranting the questioning of common pleas’ crediting
the veracity of the Affiants. Ultimately, because a reasonable mind could accept
these statements as establishing more likely than not the applicability of the personal
22
security exception, they are sufficient and constitute substantial evidence to support
common pleas’ decision to review the SOG Manual in camera and to order redaction
of the documents therein. Dep’t of Env’t Res. v. Borough of Carlisle, 330 A.2d 293,
298 (Pa. Cmwlth. 1974).
Moreover, common pleas did not rely only on the Affidavits because it
engaged in its own in camera examination of the submitted documents. This
in camera examination is consistent with that court’s de novo standard of review.
Bowling, 75 A.3d at 466 n.14. Our Supreme “Court has blessed . . . in camera review
[as a means] to assess the application of various privileges, including where
anticipated effects of disclosure are critical elements of the determination.” Am. Civ.
Liberties Union of Pa. v. Pa. State Police, 232 A.3d 654, 669 (Pa. 2020). Upon that
review, common pleas concluded the City had met its burden of proving that certain
parts of the documents in the SOG Manual were not disclosable under the personal
security exception, and, therefore, ordered their redaction. After this Court’s own in
camera review of those documents, we agree with common pleas’ determination that
it was more likely than not that the contents ordered redacted would create a
reasonable likelihood of a substantial and demonstrable risk to an individual’s
security, specifically, the SOG members, if the information is not protected. The
redacted materials relate to the operations, management, training, equipment, and
tactics of the SOG Unit. Given the heightened risk to personal security implicated
in situations where the SOG Unit is used, the Court accepts not only the “actual or
real or apparent” risk to SOG members, but also the “perceived threat[]” to those
members as establishing the “substantial and demonstrable risk” necessary to
successfully invoke the personal security exception. See Carey, 61 A.3d at 373-74.
Thus, common pleas’ in camera review constituted substantial evidence, in that it is
23
“relevant evidence [] a reasonable mind might accept as adequate to support a
conclusion,” Department of Environmental Resources, 330 A.2d at 298, to support
the ordered redactions of the SOG Manual.
2. Did common pleas lack jurisdiction to order the redaction of the SOG
Manual?
Requester further asserts common pleas lacked jurisdiction to order redaction
after its in camera review of the SOG Manual because, he believes, the same
document was provided in discovery in his federal lawsuit, making it and all of its
contents public. Requester asserts the public has the right to review the “complete
adjudicative record, which must include the unredacted copy of the responsive
records to the RTK[L] Request that are the subject of the instant case.” (Requester’s
Br. at 76.) The City responds that common pleas properly considered and ruled upon
the documents at issue relating to paragraph 1 of the August Request and, after
engaging in its in camera review, ordered the redaction of the portions of the records
it found exempt under the RTKL.
Requester’s assertion that common pleas could not put the “genie back into
the bottle” is not a persuasive reason for reversing. (Notice of Appeal for the Appeal
of the August Request ¶ 11.) Requester invoked the RTKL to obtain the record, and
the RTKL allows government agencies to assert that certain records (or information
therein) are exempt from disclosure and to redact the non-publicly accessible
information from otherwise disclosable public records. Sections 706 and 708(b) of
the RTKL, 65 P.S. §§ 67.706 (allowing for the redaction of information that is not
subject to public access), 67.708(b) (setting forth the exceptions to disclosure that
governmental agencies may assert to preclude disclosure). Section 306 of the RTKL
provides “[n]othing in this act shall supersede or modify the public or nonpublic
nature of a record or document established in Federal or State law, regulation or
24
judicial order or decree.” 65 P.S. § 67.306. Requester does not assert the record
sought is public pursuant to “Federal or State law, regulation or judicial order or
decree,” id., such that the RTKL and its limitations on access would be inapplicable.
Accordingly, we are not persuaded that common pleas exceeded its jurisdiction by
ordering the disclosure of the SOG Manual subject to the redactions authorized by
the RTKL.
3. Did common pleas err by not resolving all of the issues raised in
Requester’s Notice of Appeal of the Appeal of the August Request?
Requester argues common pleas erred in ignoring paragraphs 3, 5-6, 8-16, and
19-21 of his Notice of Appeal for the Appeal of the August Request. As with
Requester’s argument related to the Appeal of the July Request, many of these
paragraphs relate to Requester’s public policy positions, rather than assertions of
legal error, (Notice of Appeal for the Appeal of the August Request ¶¶ 3, 5-6, 16,
19-20), and, therefore, need not have been addressed. Further, to the extent
paragraphs 8-16 challenged common pleas’ redaction, that court expressly identified
this issue in its 1925(a) opinion as one of the substantive issues Requester raised.
(1925(a) Op. at 3.) As for paragraph 21, this references the deposition testimony of
the former police chief as to the existence of policies. However, common pleas
directed Police Department to submit the relevant policy for in camera review, the
court examined that policy and ordered the record released subject to specific
redaction common pleas believed necessary under the personal security exception.
Accordingly, this is not a reason to reverse common pleas’ Order.
4. Other issues
Requester further argues the records responsive to paragraphs 5, 7, and 10 of
the August Request, which sought, respectively, all warrants that were issued during
25
the 12-month period before August 21, 2012, and issued after that date in relation to
his arrest, (Aug. Request ¶¶ 5, 7), and “all sneak and peak warrants, wiretap warrants,
etc.” used by Police Department to conduct surveillance of him in the 6 months prior
to his arrest and documents that fully disclose those “warrants and unwarranted
surveillance activities” during that time period, (id. ¶ 10), should be released.
According to Requester, sufficient time has passed without action being taken upon
the arrest warrants and they should be disclosed. Failure to disclose these records,
Requester maintains, violates his constitutional rights under the Fourth and Tenth
Amendments to the United States Constitution, U.S. CONST. amends. IV and X, and
article I, sections 8 and 25 of the Pennsylvania Constitution, Pa. Const. art. I, §§ 8,
25.24
24
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV. Article I, section 8 of the Pennsylvania Constitution similarly states:
The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or to seize
any person or things shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation subscribed to by the
affiant.
PA. CONST. art. I, § 8. The Tenth Amendment to the United States Constitution provides: “The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. Article I, section
25 of the Pennsylvania Constitution states: “To guard against transgressions of the high powers
which we have delegated, we declare that everything in this article is excepted out of the general
powers of government and shall forever remain inviolate.” PA. CONST. art. I, § 25.
26
The OOR found the records responsive to these paragraphs were judicial
records in the nature of warrants and not disclosable under the RTKL because they
are not financial records and are not records “of” the City. (Final Determination for
the Appeal of the August Request at 10 (citing Section 102 of the RTKL, 65 P.S.
§ 67.102 (defining “record”) and Phila. Dist. Att’y’s Off., 176 A.3d at 1028-29(finding sentencing order is judicial record not subject to disclosure)).) Common
pleas agreed with this determination because only financial records of judicial
agencies are disclosable under the RTKL. (1925(a) Op. at 9-10 (citing Section
304(a) of the RTKL, 65 P.S. § 67.304(a) (limiting disclosure of judicial agency
records to financial records)).) We discern no error in these determinations.
Requester invoked the RTKL to obtain the warrants issued both before and
after his arrest. He does not dispute the findings that these records are judicial
agency records, they are not financial records, and they are not “of” the City.
Pursuant to Section 304(a) of the RTKL, “[a] judicial agency shall provide financial
records in accordance with this act[.]” 65 P.S. § 67.304(a). Thus, the RTKL does
not authorize disclosure of non-financial records of a judicial agency. Requester
maintains they are disclosable due to the passage of time, but there is nothing in the
RTKL that authorizes disclosure of otherwise non-public records due to the passage
of time. Accordingly, these are not reasons to reverse common pleas’ Order.
Finally, Requester asserts the records in response to Paragraphs 3 and 4 of the
August Request ordered to be disclosed by the OOR must be disclosed following
common pleas’ Order “because the Chapter 13 Court has completed its judicial
review” and the automatic stay should have been lifted. (Requester’s Br. at 76
(citing Sections 1301 and 1302 of the RTKL, 65 P.S. §§ 67.1301, 67.1302).) We
disagree.
27
Pursuant to Section 1302(b) of the RTKL, an appeal of a final determination
to common pleas stays any ordered disclosure pending a decision of that court, 65
P.S. § 67.1302(b), and Section 5105(e) of the Judicial Code, 42 Pa.C.S. § 5105(e),
provides for an automatic supersedeas of an underlying order when appeals are filed
with this Court. In Baron v. Department of Human Services, 169 A.3d 1268, 1275
(Pa. Cmwlth. 2017), we explained stays on disclosure based on an appeal “applies
to all records at issue regardless of the basis of the exemption, who asserted it, or
who preserved” it and “any attempt to enforce an appealed final determination before
disposition of the merits is premature.”25
III. CONCLUSION
For the foregoing reasons, we affirm Common Pleas’ December 14, 2020
Order.
25
Requester filed a “Request to Amend Petitioner’s/Appellant’s Brief with a New
Attachment and Request that the Commonwealth Court Take Judicial Notice of City of Hazleton’s
Filing in Federal Court” (Application), in which he asks the Court to consider, as part of this
appeal, a document and arguments that were not submitted to common pleas. Specifically,
Requester asks that the Court add a filing by the City in a separate federal court action to the
attachments to his brief and to take judicial notice of the City’s arguments in that federal litigation,
which Requester claims are a “vile threat” regarding what the City and the City’s police “officers
can get away with,” of which the public must be made aware. (Application ¶¶ 5, 7-9.) This Court
may not consider materials that are attached to a brief as an appendix, including briefs submitted
in other cases, that are not contained in the original record created before common pleas. Stabler
Dev. Co. v. Bd. of Supervisors of Lower Mt. Bethel Twp., 695 A.2d 882, 887 n.5 (Pa. Cmwlth.
1997). Thus, the Application is denied, and, consistent with this precedent, the Court will not
consider any materials not contained in the Original Record.
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Appellant :
:
v. : No. 1333 C.D. 2020
: No. 1334 C.D. 2020
:
City of Hazleton :
PER CURIAM ORDER
NOW, June 2, 2023, Sean M. Donahue’s “Request to Amend
Petitioner’s/Appellant’s Brief with a New Attachment and Request that the
Commonwealth Court Take Judicial Notice of City of Hazleton’s Filing in Federal
Court” is DENIED, and the December 14, 2020 Order of the Court of Common
Pleas of Luzerne County is AFFIRMED.