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In Re: Pittsburgh Citizen Police

December 28, 2011


The opinion of the court was delivered by: Johnny J. Butler, Judge

Argued: November 15, 2011




The Pittsburgh Citizen Police Review Board (Board) appeals the September 23, 2010 order of the Court of Common Pleas of Allegheny County (trial court) denying the Board‟s request that the Bureau of Police of the City of Pittsburgh (City) furnish intelligence, investigative and treatment information related to police activity in connection with the September 2009 conference of the Group of 20 Finance Ministers and Central Bank Governors (G-20 conference) because the information is protected under Section 9106 of the Criminal History Record Information Act (CHRIA).*fn1 The issues before this Court include: 1) whether the authority given to the Board pursuant to the City‟s Home Rule Charter supersedes the authority provided in the CHRIA; 2) whether the trial court erred by determining that a chronological listing of names of individuals charged with alleged offenses was protected from disclosure pursuant to Section 9106 of the CHRIA; 3) whether the Board‟s failure to challenge the trial court‟s characterization of the redacted information as compromising only protected intelligence, investigative or treatment information was an admission of such classification; and 4) whether the doctrine of judicial estoppel bars the City from repudiating the terms of a letter of understanding that memorializes the terms of the Board‟s access to various investigative police documents. For the reasons that follow, we affirm the order of the trial court.

In September of 2009, the G-20 conference met in Pittsburgh. During and after the event, more than 200 people were arrested, and the Board received numerous complaints of alleged police misconduct. As a result, the Board initiated an investigation of the policies, procedures and circumstances surrounding these encounters and held public hearings. The Board issued subpoenas to the City‟s Chief of Police seeking: 1) arrest reports and related documents pertaining to 29 arrests made in connection with the G-20 conference, and 2) a large number of documents relating to the activities of the Pittsburgh Bureau of Police and police officers from other jurisdictions temporarily assigned for the event. On January 21, 2010, the Board filed a Motion to Enforce Compliance with a Subpoena. The City responded with an Answer and New Matter on February 19, 2010.

At the direction of City‟s Mayor, the City‟s counsel took the position that the City would not honor the subpoenas because the Board exceeded its authority by issuing subpoenas for an investigation initiated by the Board. The Mayor‟s position was that the role of the Board is limited to investigating verified complaints of police misconduct. Counsel for the Board contended that the City‟s position ignored several provisions of a 1997 ordinance governing the role of the Board which permits it to initiate investigations and studies of incidents of alleged police misconduct for which no complaint had been filed, to hold public hearings, and to make recommendations on policy matters, including police training, hiring and discipline.

In a March 18, 2010 order, the trial court found in favor of the Board, thereby requiring the City to produce the subpoenaed documents, except those documents otherwise protected by law. The City produced numerous documents requested by the Board, but did not produce a certain 309 pages of police reports. On April 7, 2010, the City filed a notice of appeal with the Commonwealth Court, and an amended notice of appeal on April 14, 2010. Because the City failed to comply with the trial court‟s March 18, 2010 order, on April 14, 2010, the Board filed a Petition to Show Cause Why Respondent Should not be Found in Contempt. On April 28, 2010, the Board agreed to postpone its Petition to Show Cause in exchange for an agreement from the City to comply with the March 18, 2010 order, and to discontinue its Commonwealth Court appeal. The City then sent a redacted copy of the 309 pages of police reports to the Board on May 14, 2010. On June 9, 2010, however, the Board filed an amended petition indicating that the City‟s redaction violated the March 18, 2010 order by denying the Board information to which it was entitled by the trial court order, the Home Rule Charter, and the Board‟s enabling ordinance.

On June 18, 2010, the City filed an answer to the amended petition and new matter, raising the argument that the CHRIA prevented it from providing the information at issue to a non-criminal justice agency. On the same date, a hearing was held before the trial court. The Board presented an unredacted copy of a report known as the Snyder/Deary Report that it received from the City‟s Office of Municipal Investigations (OMI) which was one of the redacted documents it received from the City. The trial court ordered the parties to submit briefs addressing the issue of whether the 309 pages should be provided to the Board unredacted. The trial court entertained oral arguments on August 26, 2010. Thereafter, the trial court issued an opinion and order denying the Board‟s request for intelligence, investigative and treatment information protected by the CHRIA. The Board appealed to this Court.*fn2

Relying on In re Addison, 385 Pa. 48, 122 A.2d 274 (1956), the Board initially argues that, subject to certain enumerated limitations, a home rule municipality is empowered to legislate over a wide range of local interests, even in the presence of an inconsistent or conflicting law of statewide application, particularly where the local ordinance pertains, as in the present case, to municipal personnel and administration. We disagree.

The Pennsylvania Constitution states in pertinent part: "The General Assembly shall provide the procedure by which a home rule charter may be framed and its adoption, amendment or repeal presented to the electors." Pa. Const. art. IX, §

2. The General Assembly set forth the procedure for adopting a home rule charter form of government in the Home Rule Charter and Optional Plans Law (Law).*fn3 The Pennsylvania Constitution further states: "[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. art. IX, § 2. Section 2961 of the Law also states:

A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. [Moreover, a]ll grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality. 53 Pa.C.S. § 2961. However, the Law further states, in relevant part: "A municipality shall not . . . [e]xercise powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth." 53 Pa.C.S. § 2962(c)(2). More specifically, [the Pennsylvania Supreme] Court has explained that the General Assembly may negate ordinances enacted by home rule municipalities when the General Assembly has enacted a conflicting statute concerning substantive matters of statewide concern. Moreover, we have stated that matters of statewide concern include matters involving the health, safety, security and general welfare of all the inhabitants of the State, but do not include matters affecting merely the personnel and administration of the offices local to [a specified municipality] and which are of no concern to citizens elsewhere.

Devlin v. City of Phila., 580 Pa. 564, 578-79, 862 A.2d 1234, 1242 (2004) (citation and ...

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