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Pennsylvania State Police v. Office of Open Records

September 16, 2010


The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: June 23, 2010



The Pennsylvania State Police (PSP) petitions this Court for review of the Final Determination by the Office of Open Records (OOR) to grant the appeal of Donald R. Gilliland (Requester) from the PSP's denial of his request for an incident report (Incident Report) under the Right-to-Know Law (RTKL).*fn1 PSP argues that the OOR erred in granting the appeal because the Incident Report is a criminal investigation record exempted from disclosure under the RTKL.

On February 2, 2009, Requester, the managing editor of the Potter Leader-Enterprise newspaper, submitted a Right-To-Know Law Request (Request) seeking:

a complete incident report -- listing names of victims AND names of people being charged -- for incident # F02-1003340 occurring on 28 Dec 08. I'd list a name for reference if I could, but obviously I can't... which is a problem when trying to follow-up [sic] at the local magistrate judge's office as well. Copy of incomplete incident report is attached.

(Request, R.R. at 1a (emphasis and ellipsis in original).) Attached to the Request was a PSP Public Information Release Report (PIRR) for Incident Number F02-1003340, which listed the location of the incident as, "[p]rivate residence along North Hollow Road, Sweden Twp., Potter County," listed the date and time of the incident as "12/28/08 / Approx. 1730 hours," and described the incident as follows:

On said date and time Victim #1 and Victim #2 were engaged in a verbal argument in the driveway area of a private residence. Actor #1 proceeded to push Victim #1. Actor #2 proceeded to get into the vehicle of Victim #2 as he was trying to leave. Actor #2 proceeded to strike Victim #2 with a fist as he was inside the vehicle. Actor #1 proceeded to spin "doughnuts" in the drive way [sic] as Actor #2 threw recently purchased meat products out the vehicle into the driveway and yard area in a circular pattern.

(PIRR, December 30, 2008, R.R. at 2a.)*fn2 On February 3, 2009, the PSP's Agency Open Records Officer (AORO) denied the Request on the basis that the requested Incident Report was a criminal investigative record exempt under Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16). On February 11, 2009, Requester appealed the AORO's decision to the OOR. The OOR assigned the case to an appeals officer. The appeals officer sent a letter to the PSP stating that, because an incident report is equivalent to a police blotter, and police blotters are excluded from the criminal investigative records exemption at Section 708(b)(16), the Incident Report was a public record. The appeals officer invited the PSP to provide him with any evidence that the PSP might have that the release of the names of the victims/actors involved in the incident would "result in substantial and demonstrable risk of physical harm to or personal security of the victim[s]." (Letter from appeals officer to PSP AORO (March 16, 2009), R.R. at 10a.) The PSP responded via letter, disputing that incident reports are the equivalent of police blotters. The PSP did not provide evidence as to how the disclosure of the victims' names might result in a risk of harm to or impairment of the security of the victims on the grounds that the Incident Report, as a criminal investigative record, is not a public record as defined by the RTKL and, as such, the PSP was not required to produce additional reasons why information in the Incident Report should be withheld. Along with this letter, the PSP submitted a RTKL Liaison Verification stating that the PSP does not maintain a police blotter and that PSP incident reports are used for reporting investigative actions.

On March 23, 2009, the OOR issued its Final Determination granting Requester's appeal and directing the PSP to release an unredacted copy of the Incident Report to Requester. The OOR reasoned that, while Section 708(b)(16) exempts criminal investigative records from the definition of public records, Section 708(b)(16) specifically provides that the exemption does not apply to police blotter information and that, pursuant to Commonwealth v. Mines, 680 A.2d 1227 (Pa. Cmwlth. 1996), and Tapco, Inc. v. Township of Neville, 695 A.2d 460 (Pa. Cmwtlh. 1997), incident reports are equivalent to police blotters. The OOR concluded that the Incident Report was, therefore, a public record and subject to disclosure, but that investigative information contained within the Incident Report could be redacted pursuant to Section 708(b)(16). The OOR concluded, however, that because the PSP bore the burden of showing that the victims' names were investigative information, or that release of the victims' names would cause a risk of physical harm to or the impairment of the physical safety of the victims, and failed to produce any evidence on these points, the PSP must release an unredacted copy of the Incident Report. The PSP now petitions this Court for review.*fn3

In reviewing a final determination of the OOR, this Court "independently reviews the OOR's orders and may substitute its own findings of fact for that of the agency." Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) (en banc). With regard to what evidence this Court may consider in reviewing a decision of the OOR, this Court "is entitled to the broadest scope of review" but "should consider the manner of proceeding most consistent with justice, fairness and expeditious resolution." Id. at 820, 823. The RTKL does not prohibit this Court from considering evidence that was not before the OOR, including "an in camera review of the documents at issue." Id. at 820. After argument, this Court issued an order dated June 28, 2010, directing the PSP to supplement the record by submitting the Incident Report for in camera review by this Court.*fn4 Pennsylvania State Police v. Office of Open Records (Pa. Cmwlth. No. 741 C.D. 2009, filed June 28, 2010).

Before this Court, PSP argues that the OOR erred in holding that the Incident Report was a public record because police incident reports are not equivalent to police blotters under the RTKL and the Criminal History Records Information Act (CHRIA).*fn5 The PSP asserts that the Incident Report is wholly exempt from disclosure because it is a criminal investigative record, which contains investigative materials and victim information. We agree.

We begin by examining the statutory language of the RTKL. Section 301(a) of the RTKL directs that "[a] Commonwealth agency shall provide public records in accordance with this act." 65 P.S. § 67.301(a). Section 305 of the RTKL provides, in pertinent part, that "[a] record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record," unless "the record is exempt under [S]section 708." 65 P.S. § 67.305. Similarly, Section 102 of the RTKL defines a "public record," in part, as "[a] record... of a Commonwealth or local agency that: (1) is not exempt under [S]section 708." 65 P.S. § 67.102. Section 708(b)(16) states that records "exempt from access by a requester under" the RTKL include:

(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.

(iv) A record that includes information made confidential by law or court order.

(v) Victim information, including any information that would jeopardize the ...

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