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California University of Pennsylvania v. Schackner

Commonwealth Court of Pennsylvania

August 22, 2017

California University of Pennsylvania, Petitioner
Bill Schackner and Pittsburgh Post-Gazette, Respondents

          ARGUED: June 5, 2017



          JULIA K. HEARTHWAY, Judge.

         California University of Pennsylvania (University) petitions for review of that part of the January 3, 2017 final determination of the Office of Open Records (OOR), that pursuant to the Right-to-Know Law (RTKL), [1] found recoverable certain records relating to the University's investigation into the structural failure of an on-campus parking garage. We affirm in part and vacate and remand in part.

         On September 14 and 19, 2016, Bill Schackner, a reporter for the Pittsburgh Post-Gazette (Requester), requested copies from the University of all correspondence from August 24, 2016 through September 19, 2016, relating to the Vulcan Parking Garage that was sent or received by "Cal U Parking and Transportation Office director Chris Johnston; Vice President for Administration and Finance Robert Thorn; Cal U President Geraldine Jones, Council of Trustees Chairman Larry Maggi and Associate Vice President for Communications and Public Relations Christine Kindl[;]" "Michael Kanalis, interim director of facilities management; Ed McSheffery, Chief of Police/Director of Public Safety and University Police; Michael Peplinski, Director, Facilities Management; David Wyne, Assistant Director Planning and Construction/Project Manager; Jeanne Singer, Work-Order Clerk; [and] Lorie Stewart, Administrative Assistant." (OOR Requests, 9/14/16 and 9/19/16.)

         On November 10, 2016, the University responded partially denying Requester's requests. The University withheld correspondence relating to its investigation into the causes of the structure failure, its internal, predecisional deliberations, and its draft documents that related to web content and statements. The University provided Requester with other responsive items. Requester appealed to the OOR.

         The University submitted a position statement to the OOR indicating that it released additional records to Requester, which it attached to its submission. The University also submitted a privilege log (Log) that identified 150 items it continued to withhold as exempt from disclosure pursuant to sections 708(b)(10)[2] and 708(b)(17)[3] of the RTKL and pursuant to its attorney-client privilege.[4] In support of the exemptions, the University submitted an affirmation made under penalty of perjury from Robert Thorn, the University's Open Records Officer and Vice President for Administration and Finance (Thorn Affirmation).[5]

         On January 3, 2017, the OOR issued its final determination. The OOR determined that all responsive records that the University claimed were exempt under the noncriminal investigation exception to the RTKL, 65 P.S. § 67.708(b)(17), are not exempt because the University did:

not cite to any legal authority demonstrating that it possess[es] legislatively granted fact-finding and investigative powers in this matter. Instead, the University provided facts as to the steps it took after the structural failure in the parking garage. This, alone, does not establish that the University has the authority to conduct noncriminal investigations as contemplated by Section 708(b)(17) [of] the RTKL.

(OOR Determination, at 6-7.)

         Next, the OOR determined that of the 23 responsive records that the University claimed were exempt under the predecisional deliberations exception to the RTKL, 65 P.S. § 67.708(b)(10)(i)(A), only eleven were exempt, record numbers 134, 135, 146-154. The remaining 12 were not exempt pursuant to section 708(b)(10)(i)(A) of the RTKL.

         Finally, the OOR determined that the 9 responsive records[6] that the University claimed as exempt under the attorney-client privilege were not exempt because the University's Log and the Thorn Affirmation were conclusory and did not provide enough detail to establish the privilege.

         The OOR ordered the University to provide all of the responsive records except numbers 134, 135, and 146-154. The University petitioned this Court for review.[7]

         Under the RTKL, records in the possession of an agency are presumed to be public; however, that presumption does not apply if the record is privileged or exempt under section 708 of the RTKL, 65 P.S. §67.708.[8] "Exemptions from disclosure must be narrowly construed due to the RTKL's remedial nature …." Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). "An agency bears the burden of proving, by a preponderance of the evidence, that a record is exempt from disclosure under one of the enumerated exceptions." Brown v. Pennsylvania Department of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015). "A preponderance of the evidence standard, the lowest evidentiary standard, is tantamount to a more likely than not inquiry." Delaware County v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).

         Initially, the University contends that the OOR erred in determining that certain records were not exempt as the product of a non-criminal investigation, pursuant to section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17).[9] Section 708(b)(17)(ii) and (vi)(A) of the RTKL provide for the exemption from access by a requester of an agency's record "relating to a noncriminal investigation, including … [i]nvestigative materials, notes, correspondence and reports [and]…[a] record that, if disclosed, would. . .[r]eveal the institution, progress or result of an agency investigation…." 65 P.S. § 67.708(b)(17)(ii) and (vi)(A).

         In construing the noncriminal investigation exemption in the context of section 708 of the RTKL, this Court has determined that the agency needs to show that it conducted an "investigation, " which is defined as a "systematic or searching inquiry, a detailed examination, or an official probe." Department of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Cmwlth. 2010). "[T]he agency asserting the [exemption] must show that a searching inquiry or detailed examination was undertaken as part of an agency's official duties. Stating that an investigation occurred … does not suffice." Pennsylvania Department of Education v. Bagwell, 131 A.3d 638, 659-60 (Pa. Cmwlth. 2015) (citations omitted). Additionally, when submitting affidavits to establish that a record is exempt, this Court has stated that the "affidavits must be detailed, nonconclusory and submitted in good faith…. Absent evidence of bad faith, the veracity of an agency's submissions explaining reasons for nondisclosure should not be questioned." Scolforo, 65 A.3d at 1103 (citation omitted).

         The University presented the Thorn Affirmation and the Log in support of its contention that it is exempt pursuant to section 708(b)(17) of the RTKL. The Thorn Affirmation set forth that: (1) "there was a structural failure of the Vulcan Parking Garage (garage) on the University's campus that resulted in a slab of concrete falling to the ground"; (2) "In response to the event, the University took immediate steps to (a) secure the garage to avoid health and safety risks; (b) determine the cause of the failure; and (c) determine and evaluate its options for repair"; and (3) the University, to accomplish the above steps, conducted "an inquiry into the causes of the failure, whether it can be repaired, if so, how and at what cost." (Thorn Affirmation, ¶¶ 2-3 at 1.) The Thorn Affirmation stated that the University gathered, shared, reviewed, and analyzed "information through and among its employees and legal counsel, as well as the architect and contractor responsible for construction of the garage, and ultimately two consulting firms" that the University used to complete the investigation. (Id. ¶ 3 at 1.)

         The University showed that it gathered information to determine the cause of the garage collapse. However, the University did not show how the steps that it took following the structure failure amounted to a noncriminal investigation under section 708(b)(17) of the RTKL.

         A "'noncriminal investigation' is an investigation 'conducted as part of an agency's official duties'" and here, there was no showing by the University that it had an official duty to investigate the cause of the structure failure. Merely performing routine duties, such as determining the cause of a structure failure and the cost of its repairs, does not amount to an official probe or an investigation.

         In Department of Public Welfare v. Chawaga, 91 A.3d 257, 259 (Pa. Cmwlth. 2014), Chawaga requested a performance audit report from the Department of Public Welfare (DPW), pursuant to the RTKL. The DPW determined that the report was exempt as a noncriminal investigation. This Court determined that an audit report was not an 'official probe' because the "performance audit was not part of the [Department's] legislatively granted fact-finding or investigative powers; rather, the audit was ancillary to [the Department's] public assistance services. A contrary interpretation of an 'official probe' would craft a gaping exemption, under which any governmental information-gathering could be shielded from disclosure." Id.

         The University further failed to prove in the Thorn Affirmation or the Log that it had an official duty, which went beyond its routine duties, to conduct an investigation into the collapse.[10] The University's inquiry was ancillary to its public safety services.

The public has the right to know who is performing services for the government agency, the scope of [those] services, the disputes concerning the scope of services, the costs relating to those services, and the resolution of disputes concerning the services. There was no danger of an invasion of personal privacy rights, public endangerment, or divulgence of secret information.

See Johnson v. Pennsylvania Convention Center Authority, 49 A.3d 920, 926 (Pa. Cmwlth. 2012). Thus, the OOR did not err in determining that the University failed to prove it was conducting a noncriminal ...

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