Argued: February 5, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
HANNAH LEAVITT, PRESIDENT JUDGE.
Borough (Borough) appeals a decision of the Court of Common
Pleas of Washington County (trial court) affirming a final
determination of the Office of Open Records (OOR) that a
video recording of a holding cell at the Borough Police
Department was disclosable. The video records a confrontation
between a police officer and a detainee in the cell. The
Borough contends that the OOR lacked jurisdiction to hear the
requester's appeal; that the trial court erred in holding
otherwise; and that OOR's final determination was legally
invalid. For the following reasons, we reverse.
August 7, 2015, Andrew Glenn Rothey (Requester) submitted a
written request to the Borough for the
[v]ideo recording of all interaction between Adam Logan and [
] Borough Police Officer Justin Todd Shultz in a holding cell
in the [ ] Police Department on November 9, 2013,
particularly the physical altercation between Mr. Logan and
Record at 11a (R.R. ___). The requested video was produced by
a surveillance camera installed in the holding cell where
Logan was awaiting arraignment on criminal charges. The video
shows Shultz grabbing Logan by the throat and slamming him
onto a bench. Upon viewing the video, Police Chief Rick
Encapera discharged Shultz and filed criminal charges of
official oppression and simple assault against him. Shultz
pled guilty to one count of simple assault on May 5, 2015.
September 14, 2015, the Borough denied Requester access to
the video recording of the incident. It asserted that the
video related to a criminal and noncriminal investigation of
Shultz and, therefore, was exempt from disclosure under
Section 708(b)(16) and (17) of the Right-to-Know
Alternatively, the Borough asserted that the video was exempt
from disclosure under Section 708(b)(1)-(3) of the
Right-to-Know Law because release of the video "would
be reasonably likely to jeopardize or threaten public safety
…, and/or to endanger physical security …, and
poses [a] substantial and demonstrable risk to personal
security[.]" R.R. 12a. Finally, the Borough asserted
that Section 9106(c)(4) of the Criminal History Record
Information Act (CHRIA) prohibited it from releasing the video
to any person other than a criminal justice agency. The
denial letter advised Requester that his appeal, if any,
should be filed with the OOR.
appealed to the OOR arguing, among other things, that the
exemptions claimed by the Borough were no longer applicable
because the requested video had been disclosed to the media.
In response, the Borough reiterated its grounds for denial
and submitted a sworn affidavit of Chief Encapera. The
Borough further asserted that Section 503(d)(2) of the
Right-to-Know Law invested the district attorney's
appointed appeals officer, not the OOR, with jurisdiction to
hear the subject appeal.
held a hearing, where Encapera, the sole witness, testified.
He described the holding cell as a "square cubical"
located inside the Police Department "with a locked
door[, ] a glass window to look in[, and] a bench seated in
it with leg shackles on each side to secure prisoners."
Notes of Testimony, 2/8/2016, at 17 (N.T.___); R.R. 47a. A
surveillance camera is installed in the "upper
right-hand corner of the cell[, which] is designed to show
the prisoner as [he's] sitting in the cell." N.T.
18; R.R. 48a. Encapera testified that the camera is recording
"all the time 24/7, " regardless of whether a
prisoner is in the holding cell. N.T. 30; R.R. 60a.
testified about the incident of November 9, 2013. Officers
who witnessed the incident reported it to Encapera, who then
viewed the video recording, downloaded it and brought it to
the district attorney for review. The district attorney and
Encapera agreed that Shultz's "actions were criminal
in nature." N.T. 38; R.R. 68a. Encapera fired Shultz and
filed criminal charges against him.
acknowledged that the video recording was not created for the
purpose of investigating Shultz or with an "expectation
that a criminal act was about to occur in the holding
cell;" rather, the camera was there to ensure "the
safety of the prisoner." N.T. 39; R.R. 69a. Encapera
testified that the camera also ensures the safety of the
police officers because they can monitor the holding cell to
ensure that prisoners are "not trying to conceal
anything or attempting to produce any type of weapon that
wasn't found during the normal search." N.T. 21;
R.R. 51a. Encapera further testified that were the video to
be distributed publicly, a future prisoner might learn where
the blind spots in the holding cell are located and use that
knowledge to conceal drugs or weapons not discovered by the
acknowledged that on December 4, 2013, he permitted a local
news reporter from WPXI to view the video at the police
station. He also permitted a reporter from another station,
WTAE, to film a news segment in the holding cell where the
incident occurred. Encapera testified that the WTAE reporter
was allowed to do only "spot shots, " as opposed to
a "complete shot[, ]" of the holding cell. N.T. 60;
R.R. 90a. Both the WPXI and WTAE news segment videos were
submitted into evidence to the OOR.
15, 2016, the OOR issued a final determination granting
Requester's appeal. It held that it had jurisdiction over
the appeal because the requested video was not a
"criminal investigative record" within the meaning
of Section 503(d)(2) of the Right-to-Know Law, 65 P.S.
§67.503(d)(2). Crediting Encapera's testimony, the
OOR found that the video was not recorded "for the
purpose of furthering a criminal investigation" but
rather "for the safety of the prisoner." OOR Final
Determination at 6; R.R. 116a. Because the video was not
created "merely or primarily" for investigative
purposes, the OOR rejected the Borough's arguments that
the video was exempt from disclosure under the criminal and
noncriminal investigation exceptions in Section 708(b)(16)
and (17) of the Right-to-Know Law, 65 P.S.
§67.708(b)(16)-(17), or Section 9106(c)(4) of CHRIA, 18
Pa. C.S. §9106(c)(4). OOR Final Determination at 14-19;
rejected Requester's argument that the Borough waived its
right to assert an exemption because it had already disclosed
the video to the media. The OOR reasoned that the Borough
showed the news reporters the video recording "outside
the parameters of a [Right-to-Know Law] request[, ]"
which does not "'belie the real security
concerns' the Borough has in releasing the video as a
public record." OOR Final Determination at 7; R.R. 117a.
However, the OOR found Chief Encapera offered no more than
"mere speculation" that a release of the video
would be "reasonably likely" to impose a
substantial risk of physical harm to personal security;
jeopardize public safety; or endanger the physical security
of the building. OOR Final Determination at 9; R.R. 119a. The
OOR held that the Borough failed to demonstrate that the
video was exempt from disclosure under the security-related
exceptions set forth in the Right-to-Know Law.
15, 2016, the Borough filed a petition for review with the
trial court, again asserting various exceptions under the
Right-to-Know Law, confidentiality under CHRIA, and the
OOR's lack of jurisdiction to hear Requester's
appeal. The trial court held a hearing, where Encapera again
testified as the sole witness. By order of March 21, 2017,
the trial court affirmed the OOR's final determination.
The trial court agreed with the OOR that Encapera's
testimony consisted of "conjecture and speculation[,
]" which was not sufficient to show that release of the
video would be "reasonably likely" to cause
security problems. Trial Court op. at 6; R.R. 200a.
holding, the trial court relied upon Pennsylvania State
Police v. Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015)
(Grove I), affirmed in part, reversed in part
and remanded, 161 A.3d 877 (Pa. 2017) (Grove
II),  to conclude that the video was not a
criminal investigative record. The trial court held the video
was disclosable because it was not created "to report on
a criminal investigation or set forth or document evidence in
a criminal investigation or steps carried out in a criminal
investigation." Trial Court op. at 6-7 (citing Grove
I, 119 A.3d at 1108); R.R. 200a-01a. Likewise, the trial
court rejected the Borough's claim that the video was
exempt from disclosure as a noncriminal investigative record.
Concluding that the video was not a criminal investigative
record, the trial court held that the OOR, not the district
attorney's designated appeals officer, had jurisdiction
to hear Requester's appeal under Section 503 of the
Right-to-Know Law. The Borough appealed to this
appeal, the Borough presents eight issues for our
consideration, which we combine into three for
clarity. The Borough first argues the trial court
erred in ruling that the OOR had jurisdiction to hear
Requester's appeal. Second, the Borough argues that the
trial court erred in concluding that the video recording was
not exempt from disclosure under the criminal and noncriminal
investigation exceptions in Section 708(b)(16) and (17) of
the Right-to-Know Law, 65 P.S. §67.708(b)(16)-(17), or
Section 9106(c)(4) of CHRIA, 18 Pa. C.S. §9106(c)(4).
Finally, the Borough argues that the trial court erred in
ruling that the public safety exception, physical security
exception, and personal security exception set forth in
Section 708(b)(1)-(3) of the Right-to-Know Law, 65 P.S.
§67.708(b)(1)-(3), did not apply to the video. We
address these issues seriatim.
Borough first argues the trial court erred in holding that
the OOR had jurisdiction to hear Requester's appeal. The
Borough contends that appeals relating to criminal
investigative records in possession of a local agency must be
heard by the district attorney's designated appeals
officer in accordance with Section 503(d)(2) of the
Right-to-Know Law. Requester responds that Section 503(d)(2)
is ambiguous because it does not state the conditions under
which the OOR "is stripped of jurisdiction."
Requester Brief at 13-14. In any event, Requester maintains
the issue of jurisdiction is moot because the trial court has
jurisdiction over appeals from both the OOR and the district
attorney's appeals officer. Id. at 11-12.
begin with an examination of Section 503 of the Right-to-Know
Law. Generally, the OOR appoints an appeals officer to hear a
requester's appeal of a local agency's denial of
access to records. 65 P.S. §67.503(a). However, the
Right-to-Know Law provides that criminal investigative
records should be reviewed by an appeals officer designated
by a district attorney. Miller v. County of Centre,
135 A.3d 233, 239 (Pa. Cmwlth. 2016), affirmed, 173
A.3d 1162 (Pa. 2017) (noting that Section 503 of the
Right-to-Know Law provides "a separate appeals
track" in recognition of "the concerns of non-law
enforcement personnel reviewing investigative
records[.]"). Specifically, Section 503(d)(2) of the
Right-to-Know Law provides:
The district attorney of a county shall designate one or more
appeals officers to hear appeals under Chapter 11 relating to
access to criminal investigative records in possession of a
local agency of that county. The appeals officer
designated by the district attorney shall ...