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Philadelphia District Attorney's Office v. Cwiek

Commonwealth Court of Pennsylvania

September 6, 2017

Philadelphia District Attorney's Office, Appellant
Timothy Cwiek

          Submitted: February 24, 2017




         Since October 2009, Timothy Cwiek (Requester)[1] has made repeated requests to the Philadelphia District Attorney's Office (DAO) for a copy of Computer Assisted Dispatch (CAD)[2] records pertaining to a vehicle stop initiated by Officer Elizabeth (Skala) DiDonato on December 22, 2002. Prior to lodging his first Right to Know Law[3] request with the DAO, Requester had obtained a redacted copy of the CAD record for the stop from another source (Redacted CAD). He attached the Redacted CAD to his first request, seeking a "more complete version" from the DAO.

         The instant appeal concerns Requester's fourth request to the DAO relating to the Redacted CAD, coupled with a request that the DAO certify copies of responsive records pursuant to Section 904 of the RTKL, 65 P.S. § 67.904, which provides: "If an agency's response grants a request for access, the agency shall, upon request, provide the requester with a certified copy of the record if the requester pays the applicable fees . . . ." (Emphasis added.) The DAO denied the request, explaining that it did not have any responsive records. Requester appealed to the Office of Open Records (OOR). On August 14, 2015, the OOR issued a final determination, denying Requester's appeal to the extent that it claimed the DAO possessed responsive records other than the Redacted CAD, which Requester provided to the DAO in his initial October 2009 request and his second request in August 2013. The OOR ordered the DAO to provide Requester a certified copy of the Redacted CAD under Section 904 of the RTKL.

         The DAO appealed to the Court of Common Pleas of Philadelphia County (common pleas). By order dated June 20, 2016, common pleas affirmed the decision of the OOR, requiring the DAO to certify the Redacted CAD. Common pleas, however, concluded that a February 26, 2015 unsworn declaration by then-Chief of the Civil Litigation Unit for the Office (2015 Declaration), "is sufficient 'certification' for the purposes of this [o]rder." (Reproduced Record (R.R.) at 9a.) The 2015 Declaration provides, in pertinent part:

2. I have searched for any and all Computer Assisted Dispatch ("CAD") records for a December 22, 2002 vehicle stop, enumerated in police records as D.C. No. 02-06-076378 ("Vehicle Stop 378"), which vehicle stop involved Police Officer Elizabeth Skala.
3. I have personally searched all civil, administrative and criminal files at the DAO that hold records pertaining to the homicide of Robert G. Morris, also known as Nizah Morris, ("the DAO Files") for these materials. My search of the DAO's Files was done under both names.
4. All that I was able to locate in the DAO's Files was a partial CAD record for Vehicle Stop 378. That partial record of Vehicle Stop 378 that the DAO has is an incomplete record that was provided to the DAO in 2013 by Timothy Cwiek, through his then[-]counsel. That partial record is included at the top of the page attached hereto.
5. I was unable to locate a complete CAD record for Vehicle Stop 378 in the DAO's files or any other CAD records relating to Vehicle Stop 378.

(Id. at 24a (emphasis added).)

         On appeal to this Court from common pleas' June 20, 2016 order, [4] the DAO argues that common pleas committed an error of law by requiring it to certify the Redacted CAD and by concluding that the 2015 Declaration constituted a certification under Section 904 of the RTKL. Specifically, the DAO argues that the RTKL does not require it to certify the Redacted CAD because it is not the agency that is "the custodian of the original record that documents its own activities and business." (DAO's Br. at 13.) With respect to the 2015 Declaration, the DAO contends that the document was not intended to authenticate the Redacted CAD-a photocopy that Requester provided to the DAO. In response, Requester, proceeding pro se, focuses mainly on his lingering concerns that the DAO did not perform a "good faith" search for responsive records, particularly for a complete CAD record for the vehicle stop at issue. (Requester Br. at 18-25.) Although unclear, he appears to be concerned about what a reversal of common pleas' decision would mean with respect to the attestation by the DAO's representative in the 2015 Declaration that the DAO does not have a complete CAD record of the vehicle stop in question. In other words, it appears that Requester is less concerned about certification of the Redacted CAD under Section 904 of the RTKL than he is about the DAO's "certification" that it has conducted an exhaustive search for the complete CAD record without success.[5]

         With respect to Section 904 of the RTKL and the obligation of agencies to provide certified copies of responsive records upon request and payment of any applicable fee, the RTKL does not define the term "certified copy" and we find no guidance in binding precedent on what an agency certifies when it provides a "certified copy" of a responsive record under the RTKL. In its opinion, common pleas concluded that "'certification' of a document generally indicates that the document is true, correct[, ] or genuine and, essentially, that the document is what it purports to be. . . . With regard to a CAD report, . . . the DAO does not generate this record as part of its regular business activities nor does it typically have any legal responsibility to retain such [a] document." (R.R. at 12a.) Common pleas went on to reason, however, that because the Philadelphia Police Department, which is the ...

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