The opinion of the court was delivered by: Robert Simpson, Judge
Submitted: November 2, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
Douglas Carey (Requester) appeals from the Office of Open Records' (OOR) final determination that denied his appeal from the Pennsylvania Department of Corrections (DOC) denial of his request under the Right-to-Know Law (RTKL),*fn1 seeking records related to the mass inmate transfer to Michigan. Requester was one of the approximately 1,000 inmates subject to the transfer.
DOC asserted insufficient specificity and a number of substantive exceptions. Requester argues the OOR erred in finding records exempt from disclosure under Section 708(b)(2) of the RTKL, 65 P.S. §67.708(b)(2), the "Public Safety" exception. Requester contends the OOR erred in not requiring DOC to disclose public records and certain documents with appropriate redaction.
We affirm the OOR as to specificity, and reserve the remainder of our decision so DOC may supplement the record as to the security-related exceptions.
On May 10, 2012, Requester submitted a request related to the Transfer of inmates from Pennsylvania state correctional institutions to a correctional facility in Michigan (Transfer),*fn2 from 2008 to date. Specifically, Requester sought:
1. All communications and statements made by [DOC], or to [DOC] regarding said transfers. [sic] Including emails, texts, phone messages, fax, etc.
2. All documents/communications which may indicate the individual[s] or agencies who authorized said transfers.
3. All documents/communications of [DOC] including but not limited to, SCI-Albion, the Secretary of Corrections, the Governor of the State of Pennsylvania, the Michigan Department of Corrections and any other governmental official regarding the transfer of Pennsylvania inmates to the State of Michigan.
4. All documents which released inmate Douglas Ralph Carey [Requester] (GF-6829) from [DOC] and which recommitted inmate Carey to the State of Michigan Department of Corrections.
5. All documents which were provided to the inmates who were transferred prior to, during, and after said transfers.
Certified Record (C.R.) at Ex. 1 (Request).
DOC denied the Request in its entirety, asserting insufficient specificity pursuant to Section 703 of the RTKL, 65 P.S. §67.703. DOC also denied the request substantively, asserting the following exceptions: Personal Security exception, 65 P.S. §67.708(b)(1)(ii); Public Safety exception, 65 P.S. §67.708(b)(2); Medical Records exception, 65 P.S. §67.708(b)(5); Predecisional Deliberative exception, 65 P.S. §67.708(b)(10); Criminal Investigative exception, 65 P.S. §67.708(b)(16); Non-criminal Investigative exception, 65 P.S. §67.708(b)(17); Social Services exception, 65 P.S. §67.708(b)(28); and, deliberative process privilege. C.R. at Ex. 2.
The OOR found the Request sufficiently specific, but denied access to the records pursuant to the Public Safety exception. The OOR applied a two-part test: (1) the record must be maintained by the agency in connection with its law enforcement or other public safety activity; and, (2) the release of the record must be "reasonably likely" to threaten public safety. In support, the OOR cited its own decisions in Walker v. Macungie Police Department, OOR Dkt. AP 2009-0509 and Laigle v. City of Wilkes-Barre, OOR Dkt. AP 2010-0267. The OOR held DOC met the first element.
As to whether the disclosure would threaten public safety, the OOR considered the affidavit submitted by DOC. That affidavit attested that the responsive records would reveal the names of DOC officials responsible for transfers, and reveal security and logistical procedures to transfer custody of inmates. These revelations would allow interference with DOC security measures and thus threaten DOC, inmate and general public safety. The OOR characterized the attestation as a "professional opinion," and it held DOC met the second part of the Public Safety exception test.
Requester filed a petition for review with this Court.*fn3
Requester asserts he did not seek records that qualify for
exemption from disclosure given this Court's precedent in Pennsylvania
State Troopers Association v. Scolforo, 18
A.3d 435 (Pa. Cmwlth. 2011), which provides that any perceived threat
is removed by redacting the records. Requester contends DOC has "a
system in place which rates documents as 'public' or 'not public'" at
the time of creation. See Pet. for Review at
¶14. Requester also asserts he has no duty to refute grounds DOC
asserted as merely possible exemptions, leaving specificity as the
only proper defense.
Under the RTKL, records in the possession of an agency are presumed to be public unless they are: (1) exempted by Section 708 of the RTKL; (2) protected by privilege; or (3) exempted "under any other Federal or state law or regulation or judicial order or decree." Section 305 of the RTKL, 65 P.S. §67.305. The Commonwealth agency bears the burden of proving a record is exempt from disclosure. Dep't of Transp. v. Office of Open Records (Aris), 7 A.3d 329 (Pa. Cmwlth. 2010).
We address the merit of the defenses DOC raised: (1) insufficient specificity; and (2) substantive exceptions.
A. Insufficient Specificity
First, we consider the sufficiency of the Request. Section 703 provides:
A written request should 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. From our review of the five-part Request, we agree with the OOR that the Request satisfies the criteria in Section 703.
All of the records are specified by subject matter and date. Thus, all records pertain to transfers to or from Pennsylvania correctional institutions and to or from Michigan correctional institutions from 2008 to the date of the Request, May 2012.
DOC primarily focuses its lack of specificity argument on the burden placed on DOC in responding to the Request. DOC explains it maintains records related to "[t]ransfer [.] scattered across the Commonwealth in the files of dozens or perhaps hundreds of [DOC] employees at 24 correctional institutions, as well as in the institutional files of approximately 1,000 inmates." See C.R., Ex. 5, DOC Submission to OOR dated 6/14/12 at 2.
As we recently held in Department of Environmental Protection v. Legere/Times-Tribune, 50 A.3d 260 (Pa. Cmwlth. 2012), a burden on an agency attendant to gathering responsive records does not pertain to sufficiency of a request or render it non-specific. Id. at 265 ("an agency's failure to maintain the files in a way necessary to meet its obligations under the RTKL should not be held against the requestor. To so hold would permit an agency to avoid its obligations under the RTKL simply by failing to orderly maintain its records.").
Part 1 of the Request seeks all communications by DOC to others regarding the transfers of inmates from Pennsylvania to Michigan, and the reverse, over a finite period of time. Part 1 describes the specific types of communications sought, "including emails, texts, phone messages, fax[es]." See Request. Part 3 seeks all records and communications of government individuals or entities regarding the transfer of Pennsylvania inmates to Michigan generally. Part 4 seeks information related to Requester's transfer and recommitment. Part 5 seeks all records that were provided to the transferred inmates, before, during, and after their transfer. Each of these parts specifies a subject matter, a finite timeframe and seeks a discrete group of documents, either by type, as communications, or by recipient, as in records provided to inmates in Part 5. The Request is sufficiently specific to enable DOC to assess which records are sought.
The only part of the Request where specificity is less clear is Part 2, in which Requester seeks "all documents/communications which may indicate" the identities of those who authorized the transfers. The word "may" renders that part of the Request vague; nevertheless, the specific subject matter and timeframe, coupled with the fact that the Transfer is well-known to DOC, suffice to ...