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George A. Michak v. Department of Public Welfare

November 9, 2012

GEORGE A. MICHAK, PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



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

Argued: September 11, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

George A. Michak (Requestor) petitions for review from the Final Determination of the Office of Open Records (OOR), which held that License Inspection Summaries (LISs)*fn1 issued by the Department of Public Welfare (Department) were exempt under the non-criminal investigative exception found at Section 708(b)(17) of the Right to Know Law (RTKL).*fn2 On appeal, Requestor argues that the OOR erred in denying his appeal because the LISs do not fall within the non-criminal investigative exception, the Department has already disclosed the information he seeks on its website, and the OOR improperly considered Requestor's purpose in seeking the LISs. The Department, in turn, argues that Requestor is now improperly revising his original Request, which was for the LISs, and is instead asking this Court to compel the Department to disclose summaries of information excerpted from the LISs.

Requestor submitted his Request to the Department's Agency Open Records Officer on August 18, 2011. The Request sought a number of different categories of documents. Relevant to this appeal, the Request sought disclosure of the following documents:

4. A copy of each and every LIS issued by or through OCDEL's[*fn3 ] Scranton Regional Office to any provider during the period of January 1, 2008 through the present in which violations were identified, including, without being limited to, a copy of each and every LIS prepared by, or as a result of inspections by, Kristin Moran.

(Request ¶ 4, R.R. at 3a.) The Department denied the Request with respect to Paragraph 4 (Response). The Response noted generally that Requestor represented KC Equities d/b/a Little Steps Day Care (Little Steps) in an appeal pending before the Department's Bureau of Hearings and Appeals from the OCDEL's decision "to issue a provisional certificate of compliance to Little Steps (a child care provider) and to revoke Little Steps' regular certificate of compliance." (Response at 1, R.R. at 5a.) The Response also stated that the Request was "virtually identical to a request for documents that [Requestor] served on OCDEL in the context of the litigation. As explained below, this context does inform our response to your catch-all requests." (Response at 1, R.R. at 5a.) With respect to Paragraph 4 of the Request, the Response stated that an LIS "sets forth the results of a [Department] investigation conducted by OCDEL staff of an OCDEL licensee" and that LISs are, therefore, exempt from disclosure pursuant to the non-criminal investigative exception of Section 708(b)(17).*fn4 (Response at 5, R.R. at 9a.)

Requestor appealed the denial of his Request to the OOR. With respect to documents the Department claimed were exempt pursuant to Section 708(b)(17), Requestor argued that the Department "routinely release[d] the requested information to . . . the public on request" and released "information related to the regulated community, including the initiation and status of investigations, on its publicly accessible website." (OOR Appeal at 3, R.R. at 18a.) Requestor also argued that the Department routinely releases LISs, along with responses and other Department actions relating to licenses and certificates, on its website and that the investigations relating to these documents had already been revealed. (OOR Appeal at 3-4, R.R. at 18a-19a.)

The OOR assigned the matter to an appeals officer, who invited the parties to brief the matter and submit any evidence supporting their positions. The Department submitted the Affidavit of Terry Shaner-Wade, the Regional Daycare Director (Director) for OCDEL's North Central Region. In this Affidavit, the Director described the contents of a LIS and stated that the Department does not provide copies of LISs on its website, but instead provides information extracted from LISs intended to help the public choose among available childcare providers. Requestor did not supply any evidence to support his allegation that the Department makes LISs available on its website.

Through its appeals officer, the OOR issued its Final Determination on November 15, 2011. Therein, the OOR determined that the LISs are documents that would "'[r]eveal the institution, progress o[r] result of an agency investigation'" and were, therefore, exempt pursuant to Section 708(b)(17). (Final Determination at 11 (quoting 65 P.S. § 67.708(b)(17)(vi)(A)) (first alteration added).) In support, the OOR cited this Court's decision in Department of Health v. Office of Open Records, 4 A.3d 803, 810-11 (Pa. Cmwlth. 2010), and stated that the affidavits provided by the Department showed that some of the documents sought by the Request, including those described in Paragraph 4 at issue in this appeal, related to non-criminal investigations into licensees' compliance with applicable statutes and regulations. (Final Determination at 11-12.) With regard to Requestor's argument that the Department "has regularly released the types of records" sought by the Request, the OOR determined that "an agency's exercise of its discretion to release certain records does not automatically serve to transform them into 'public records' as defined by" Section 102 of the RTKL, 65 P.S. § 67.102.*fn5 (Final Determination at 12 n.5.)

Requestor now appeals to this Court.*fn6 We first address Requestor's argument that the LISs are not exempt under the non-criminal investigative exception of Section 708(b)(17) because they "unquestionably" effectively modify or condition day care providers' certificates of compliance issued by the Department. (Requestor's Br. at 18.) Section 708(b)(17)(vi)(A) permits the disclosure of non-criminal investigative documents that suspend, modify, or revoke a license, registration, permit, certificate, or other similar agency authorization. 65 P.S. § 67.708(b)(17)(vi)(A). However, according to the evidence of record, LISs do not modify providers' certificates of compliance. Rather, the Director's Affidavit describes an LIS as follows:

12. "LIS" stands for "Licensing/Approval/Registration Inspection Summary." [A] LIS is generated by OCDEL at the conclusion of the investigative process, if OCDEL determines that the investigated licensee is out of compliance with one or more requirements. When filled out, an LIS contains the following information:

a. The name and address of the "legal entity," i.e., the entity licensed by OCDEL.

b. The name of the person who inspected the licensee, and the date and reason ...


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