Submitted January 23, 2015
Appealed from No. AP 2014-0178. State Agency: Office of Open Records.
Christopher Herrington, Assistant Counsel, Harrisburg, for petitioner.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
JAMES GARDNER COLINS, J.
This matter is a petition for review filed by the Pennsylvania State Police (PSP) appealing a final determination of the Office of Open Records (OOR), which ordered PSP to provide to Michelle Grove (Requester) copies of two recordings of PSP troopers at the scene of a traffic accident made by video recording equipment in PSP vehicles. The primary issue presented by this appeal is whether such video recordings of interaction between law enforcement officers and members of the public in a public place are exempt from disclosure as criminal investigative records under the Right-to-Know Law (RTKL) and the Criminal History Record Information Act (CHRIA). We conclude that such recordings are not exempt from disclosure. We therefore affirm the OOR's order requiring PSP to provide a copy of one of the video recordings, which contains no audio component, but reverse and remand with respect to the second recording to permit PSP to make limited redactions of exempt information from the audio component of that recording.
On March 24, 2014, Requester submitted to PSP a request under the RTKL seeking " a copy of the police report and any video/audio taken by the officers" at the site of a two-vehicle accident on State Route 144 in Potter Township. (Record Item (R. Item) 1, RTKL Appeal, Reproduced Record (R.R.) at 1a, 8a; R. Item 5, OOR Final Determination at 1.) On May 1, 2014, after extending its deadline to respond pursuant to Section 902 of the RTKL, 65 P.S. § 67.902, PSP partially denied the Request, providing the Public Information Release Report of the accident, but withholding
other records on the ground that they were exempt from disclosure as criminal investigative records under Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16), and CHRIA. (R. Item 1, RTKL Appeal, R.R. at 4a-9a.) In this response, PSP also asserted that video and audio recordings were exempt as records " pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings," under Section 708(b)(18)(i) of the RTKL, 65 P.S. § 67.708(b)(18)(i). ( Id., R.R. at 6a.) With its response, PSP provided a verification of its Deputy Agency Open Records Officer that gave no description of the responsive video and audio recordings or the nature or purpose of such recordings and merely stated the conclusion that such recordings qualified for exemption under Section 708(b)(18)(i). ( Id., R.R. at 6a-7a; R. Item 3, PSP Submission to OOR, R.R. at 10a-11a.)
Requester timely appealed to OOR PSP's denial of her request for audio and video recordings, including recordings made by " dash cams and body recorders." (R. Item 1, RTKL Appeal, R.R. at 16a-17a.) PSP submitted a letter memorandum of counsel to OOR in response to this appeal, in which it argued that under past OOR decisions, recordings made by video recorders in PSP vehicles are criminal investigative records exempt under Section 708(b)(16) of the RTKL. (R. Item 3, PSP Submission to OOR, R.R. at 18a-19a.) In this memorandum, PSP also relied on the verification of its Deputy Agency Open Records Officer that it had provided in its response to Requester, but submitted no other affidavit, verification or other evidence. ( Id. ) On June 17, 2014, OOR issued a final determination requiring PSP to provide copies of all responsive recordings to Requester, concluding that the verification submitted by PSP was insufficient to show that the recordings were of transmissions received by emergency dispatch personnel and that PSP had not submitted any evidence that the recordings were investigative records. (R. Item 5, OOR Final Determination at 4-5.)
On appeal to this Court, PSP does not contend that the recordings at issue are transmissions or recordings received by emergency dispatch personnel and does not claim any exemption from disclosure under Section 708(b)(18)(i) of the RTKL. Rather, PSP argues that its vehicle video recordings are exempt under Section 708(b)(16) of the RTKL and Section 9106(c)(4) of CHRIA as criminal investigative records. PSP has also filed an application to supplement the record, seeking to submit an affidavit of its Open Records Officer William Rozier (the Rozier Affidavit) as additional evidence for this Court's consideration.
We must first consider whether PSP's supplementation of the record should be allowed. Under the RTKL, this Court exercises plenary, de novo review of OOR determinations involving Commonwealth agencies such as PSP. Bowling v. Office of Open Records, 621 Pa. 133, 75 A.3d 453, 477 (Pa. 2013); Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 n.7 (Pa.Cmwlth. 2014). Where the record before OOR is inadequate to determine whether requested material is exempt from disclosure, this Court has discretion to permit a party to enlarge the record on appeal and to consider additional evidence. Bowling, 75 A.3d at 476; Carey v. Pennsylvania Department of Corrections, 61 A.3d 367, 371, 377 (Pa.Cmwlth. 2013); Department of Environmental Protection v. Cole, ...