SUBMITTED: June 9, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE JULIA K.
HEARTHWAY, Judge  HONORABLE BONNIE BRIGANCE LEADBETTER,
BRIGANCE LEADBETTER, SENIOR JUDGE
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). 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,
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,
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.
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.
response, the Authority submitted a position statement
describing the context of the request 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. 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.
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.
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.
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.
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,  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.
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. 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 ...