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Port Authority of Allegheny County v. Towne

Commonwealth Court of Pennsylvania

September 12, 2017

Port Authority of Allegheny County, Petitioner
v.
William Towne, Respondent

          SUBMITTED: June 9, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE JULIA K. HEARTHWAY, Judge [1] HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE

         The Port Authority of Allegheny County (Authority) petitions for review of a final determination of the Office of Open Records (OOR) that granted the appeal of William Towne (Requester), acting pro se, from the Authority's denial of his request for video recordings from cameras aboard an identified bus pursuant to Section 708(b)(17) of the Right-to-Know Law (RTKL) (noncriminal investigation exception to public disclosure of records).[2] On appeal, we consider whether the OOR erred in determining that the recordings were not exempt from public disclosure and directing that the Authority provide them to Requester. We conclude that the recordings were exempt from disclosure and, therefore, reverse.

         In October 2016, Requester submitted an e-mail request to the Authority seeking: "All video recordings from all cameras aboard the bus running Route 67 which turned from Beeler onto Wilkins Avenue nearest to 10pm on the night of April 14, 2016, for that run of that route." October 20, 2016, Request at 1; Reproduced Record (R.R.) at 14a. After invoking a thirty-day extension in which to respond, [3] the Authority denied the request pursuant to the noncriminal investigation exception. In support, the Authority stated:

Inasmuch as [the] Authority has downloaded and maintained bus surveillance video from the incident at issue [two vehicles collided when one sought to avoid a bus collision], [the] Authority did so specifically because its Claims Department engaged in a noncriminal investigation arising from the incident as said incident and video may pertain to and depict the conduct of involved parties and civil proceedings that are thereby implicated. It should also be noted that the Requester inspected the bus surveillance video on June 24, 2016, in the offices of [the] Authority and is invited to inspect the video again at [its] offices. . . .

December 1, 2016, Response at 5; R.R. at 36a.

         Requester appealed, inter alia, averring that a portion of the recordings from one of the cameras was very limited, that he was not permitted to hear audio components from any of the recordings, and that he was advised of secret records which the Authority allegedly excluded. Further, observing that the Authority regularly collected video recordings for each bus from multiple cameras, he maintained that the recordings were not the result of any investigation. December 13, 2016, Appeal; R.R. at 9-10a.

         In response, the Authority submitted a position statement describing the context of the request[4] and three affidavits. By way of background, Requester filed a property damage claim with the Authority claiming that he collided with a vehicle on the date in question in order to avoid a collision with a bus, a property damage lawsuit against the Authority before a magisterial district judge, and a complaint in common pleas court claiming that the Authority and its bus driver violated the Vehicle Code.[5] Ultimately, Requester settled his claim with the Authority and discontinued his appeal in common pleas court. December 23, 2016, Submission from Authority at 1-4; R.R. at 39-42a.

         The Authority's three affidavits were from Mr. Miller, Chief Operating Officer; Mr. Stoker, Director of Claims; and Mr. Monks, Associate Counsel. Mr. Miller explained that each bus is equipped with multiple cameras, a digital video recorder, and a hard drive that stores the recorded video surveillance footage. Depending on the size of the bus's respective hard drive, the existing footage is overwritten with new footage anywhere from fourteen to thirty days after the recording date. Mr. Miller stated that the footage is not regularly or periodically downloaded, viewed, or saved for general quality control or for performance operations purposes. It is only downloaded and reviewed when an incident, claim, or accident is reported, thereby triggering an investigation. Further, he indicated that the Authority limits access to the recordings to recipients such as Authority police and the claims department for purposes of investigating accidents and complaints. Finally, he indicated that access requires the approval of the Chief Operating Officer. January 12, 2017, OOR Final Determination at 7-8; R.R. at 127-28a.

         Mr. Stoker described how the recordings requested in the present case were used in the Authority's investigation of Requester's property damage claim. The footage from the cameras on the subject bus was downloaded to an outside server for the claims department's review. Reiterating that the footage would not have been requested or downloaded in the absence of an investigation, which was true for all situations, Mr. Stoker stated that the adjuster's investigation included a site visit to the intersection at issue to ascertain the sequencing of the traffic lights, a review of the bus surveillance video, a review of the bus operator's report, and a review of Requester's submissions. Although the adjuster found the recordings to be inconclusive as to whether there was contact between the bus and Requester's vehicle, Mr. Stoker acknowledged that the recordings were reviewed as part of the claims investigation. Id.

         Mr. Monks described the processing of administrative claims against the Authority. He stated that, once Requester's property damage claim was opened, "a representative from the Claims Department requested that the bus surveillance video be located, preserved and provided to the Claims Department for review as part of its investigation of [Requester's] claim." December 23, 2016, Submission from Authority, Affidavit of Mr. Monks at 2; R.R. at 46a. Mr. Monks also described viewing the recordings with Requester at the Authority's offices, stating that access to all seven camera angles was provided and that no additional secret footage existed. Otherwise, Mr. Monks described the ensuing litigation and the outcome of that litigation. Id. at 3-5; R.R. at 47-49a.

         After reviewing the Authority's response, Requester contested some of the factual averments, including the number of videos made available, and a description of what they depicted. Subsequently, the OOR Appeals Officer sent an e-mail advising the parties of the potential applicability of what was then a pending appeal in the Supreme Court involving motor vehicle recordings (MVRs) created by the Pennsylvania State Police (PSP) and the criminal investigation exception found in Section 708(b)(16) of the RTKL: Pennsylvania State Police v. Grove, 119 A.3d 1102');">119 A.3d 1102 (Pa. Cmwlth. 2015), aff'd in part, rev'd in part, and remanded, 161 A.3d 877 (Pa. 2017). Having failed to secure Requester's consent to a stay of a final determination from OOR pending a decision in Grove, [6] the OOR granted his appeal thereby requiring the Authority to provide the requested recordings. The Port Authority's petition for review to this Court followed.

         As a Commonwealth agency, the Authority is required to provide a requester with access to a public record pursuant to Section 301 of the RTKL, 65 P.S. § 67.301.[7] There is a presumption of openness as to any information of a Commonwealth agency that qualifies as a public record. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). "The burden of proving that a record of a Commonwealth agency . . . is exempt from public access shall be on the Commonwealth agency . . . receiving a request by a preponderance of the evidence." Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1). A preponderance of the evidence is that proof that would lead a fact-finder to find that the existence of a contested fact is more probable than its nonexistence. Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 438-39 (Pa. Cmwlth. 2011). In addition, "[c]onsistent with the RTKL's ...


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