Argued: June 3, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge HONORABLE ELLEN CEISLER,
Crocco of the Pro-Life Action League (Requester) petitions
for review from a Final Determination by the Office of Open
Records (OOR) upholding the Department of Health's (DOH)
redaction of professional license numbers and names of
individuals on abortion facility applications under the
personal security exception of the Right-to-Know Law (RTKL),
P.S. §67.708(b)(1)(ii). Requester argues the evidence
was not connected to specific individuals and so does not
show a threat to their personal security. She also asserts
the names are unconditionally public under the Health Care
Facilities Act (HCFA). DOH and abortion service providers that
participated before OOR counter that the information was
properly redacted based on documented violence and harassment
against individuals who serve abortion facilities. They
assert Requester waived any arguments that she did not raise
in her appeal to OOR. Based on the thorough record developed
by OOR, and the demonstrated risks involved, we affirm
OOR's final determination.
submitted a RTKL request to DOH seeking certain registration
and licensing applications for all of the non-hospital
abortion facilities in Pennsylvania (Request). DOH partially
denied the Request, redacting names and license numbers of
health care practitioners and names of the leadership of the
facilities under the personal security exception in Section
708(b)(1)(ii) of the RTKL, 65 P.S. §67.708(b)(1)(ii).
DOH also redacted personal email addresses and postal
addresses under Section 708(b)(6)(i)(A) of the RTKL, 65 P.S.
appealed to OOR, challenging the redaction of professional
license numbers and names of health care practitioners
(physicians, medical directors, and directors of nursing) and
names of leadership (administrators, owners, trustees, board
members) under the personal security exception. She
emphasized she lacked nefarious intent despite acting on
behalf of the Pro-Life Action League.
developed the record, directing DOH to inform interested
third parties of the Request and their ability to participate
pursuant to Section 1101(c) of the RTKL, 65 P.S.
§67.1101(c). DOH then informed non-hospital abortion
providers. The following requested direct interest
participant status: Drexel University College of Medicine
OB/GYN Associates (Drexel); Delaware County Women's
Center (DCWC); Mazzoni Center Family & Community Medicine
(Mazzoni); Planned Parenthood Keystone (PPK); Planned
Parenthood of Southeastern Pennsylvania (PPSP); Berger and
Benjamin (B&B); Allegheny Reproductive Health Center
(ARHC); Allentown Women's Center (AWC); Philadelphia
Women's Center (PWC); and Planned Parenthood of Western
Pennsylvania (PPWP) (collectively, Providers). OOR granted
the requests and Providers participated.
before OOR, DOH raised additional exemptions, namely the
Abortion Control Act, 18 Pa. C.S. §§3201-3220, the
Fourth Amendment of the U.S. Constitution and Article I,
Section 8 of the Pennsylvania Constitution. In support, DOH
submitted the sworn affidavit of Garrison Gladfelter, the
DOH's Chief of Division of Acute and Ambulatory Care (DOH
Affidavit). Reproduced Record (R.R.) at 35a-38a. DOH
referenced reports and statistics regarding the dangers faced
by medical providers and those serving abortion facilities,
including the National Abortion Federation (NAF) report
"2017 Violence and Disruption Statistics," R.R. at
46a-51a (NAF Report), "The Disturbing Rise of
Cyberattacks Against Abortion Clinics," id. at
52a-60a, and "Aftershocks: The Impact of Clinic Violence
on Abortion Services," id. at 61a-117a (Rand
direct interest participants in the appeal before OOR,
Providers submitted argument and evidence in support of
DOH's denial. Specifically, Providers submitted
declarations of Providers' leadership as follows: the
Clinical Director of ARHC; the Executive Director of AWC; the
Executive Director of B&B; the President of both the PWC
and DCWC; the CEO of Mazzoni; the President and CEO of PPK;
the President and CEO of PPSP; and the President and CEO of
PPWP. See R.R. at 177a-91a, 196a-207a. In addition,
David Cohen, Esquire, former staff attorney with the
Women's Law Project in Philadelphia, provided an
affidavit. See R.R. at 208a-211a. Providers also
submitted affidavits of Dr. Owen Montgomery (on behalf of
Drexel) (R.R. at 26a-30a), and an affidavit of Lisa Brown,
Esquire, NAF General Counsel and Senior Policy Director (R.R.
also submitted articles about the Pro-Life Action League, and
a note mailed to an abortion provider signed on behalf of the
League. Referencing a practitioner's arrest the note
stated: "Could you be next? If you want to get
out of the abortion business, give me a call."
R.R. at 194a (emphasis in original). The mailing included a
set of handcuffs. R.R. at 195a (photo of handcuffs).
then allowed Requester to respond to Providers'
submissions with additional argument or evidence. In her
submission, Requester refuted the personal security exception
and the Abortion Control Act as grounds for redaction.
Notably, she did not submit evidence rebutting Providers'
security concerns or cite a statutory basis for disclosure
without redaction. Instead, she asserted disclosure of the
names and license numbers was in the public interest She also
submitted an affidavit attesting to her intention to use the
information as she had when obtained in other states,
purportedly to ensure proper patient care by licensed
on the record, OOR upheld DOH's redactions under the
personal security exception in Section 708(b)(1)(ii) of the
RTKL, 65 P.S. §67.708(b)(1)(ii). Crocco v. Dep't
of Health, OOR Dkt. No. AP 2018-0778 (issued July 13,
2018) (Final Determination). R.R. at 284a-94a. It found the
release of names and license numbers of those who serve
abortion facilities as health care practitioners or as
leaders would threaten those individuals' personal
security based on the well-documented harassment to which
such individuals are subject. OOR credited Providers'
evidence about threats and harassment toward individuals
affiliated with abortion facilities both at the facilities
and off site. OOR also concluded the Abortion Control Act did
not protect the information as the statute applied only to
abortion reports filed thereunder.
sought reconsideration of the Final Determination, asserting
for the first time that the records were public as a matter
of law under Section 806(e) of HCFA, 35 P.S. §448.806(e)
(regarding disclosure of 5% of facility owners, officers and
board members). R.R. at 297a. She also asserted that the
License Application Forms state the forms are public records
for any facility that received state funds during the prior
12 months. Without reference to the record, she represented
Drexel and Mazzoni received such funds. OOR denied
reconsideration as her allegations implicated evidence
outside the record.
timely petitioned for review from the Final Determination to
this Court. Following motions practice, this Court
granted intervenor status to Providers. After extensive
briefing and argument, we consider the matter.
in an agency's possession are presumed public unless
exempt under an exception in Section 708(b) of the RTKL, a
privilege, or another law. Section 305(a) of the RTKL, 65
P.S. §67.305(a); Carey v. Dep't of Corr, 61
A.3d 367, 371-72 (Pa. Cmwlth. 2013). The RTKL does not
"supersede or modify the public or nonpublic nature of a
record or document established in … State law
…." Section 306 of the RTKL, 65 P.S.
§67.306. Here, DOH raised the personal security
exception in Section 708(b)(1)(ii) of the RTKL, and the
Abortion Control Act as a statutory exemption.
burden of proving that a record of an agency is exempt from
public access is upon the agency receiving the request by a
preponderance of the evidence. Section 708(a)(1) of the RTKL,
65 P.S. §67.708(a)(1). Direct interest participants are
likewise subject to this burden to prove any exemptions they
assert. See Global Tel*Link Corp. v. Wright, 147
A.3d 978 (Pa. Cmwlth. 2016). In this context, we define a
preponderance of the evidence as "a more likely than not
inquiry." Borough of Pottstown v. Suber-Aponte,
202 A.3d 173, 180 n.11 (Pa. Cmwlth. 2019).
appeal, Requester argues OOR erred in concluding the personal
security exception protects the redactions. She challenges
the statistical evidence as inapplicable, questioning its
accuracy as well as the averments contained in the
affidavits. Requester urges this Court to reassess the
evidence and to take judicial notice of certain web pages to
discredit Providers' security concerns. In addition, she
contends the redacted information is public under HCFA.
the fact-heavy evidentiary record, DOH responds that license
numbers and names of those who serve abortion facilities are
protected by the personal security exception in Section
708(b)(1)(ii) of the RTKL. DOH also argues that identities of
medical practitioners are expressly protected by the Abortion
Control Act. Providers add that disclosing the identities of
those who perform abortions would undermine the
confidentiality protection afforded to medical providers in
the Abortion Control Act. DOH and Providers maintain
Requester waived her arguments, that names are public under
HCFA and because some names appear on Providers'
websites, as she did not raise them before OOR.
we consider whether Requester is limited to the arguments she
raised to OOR, the fact-finder, during the appeals officer
stage. DOH and Providers argue that any arguments not raised
to OOR were waived. We agree.
1101(a) of the RTKL provides Requester's "appeal
shall state the grounds upon which the requester asserts that
the record is a public record." 65 P.S.
§67.1101(a); Dep't of Labor & Indus. v.
Heltzel, 90 A.3d 823, 827 n.4 (Pa. Cmwlth. 2014)
(citation omitted). A requester waives arguments that are not
raised in her Section 1101 appeal. Padgett v. Pa. State
Police, 73 A.3d 644 (Pa. Cmwlth. 2013); Dep't of
Corr. v. Office of Open Records, 18 A.3d 429 (Pa.
this Court determined that, in the RTKL context, arguments
not raised to the fact-finder are waived. Levy v. Pa.
Senate, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (in
"RTKL proceedings, [fact-finding] will occur at the
appeals officer stage, and a reviewing court will defer to
the findings of the appeals officer."). Absent unusual
circumstances or a deficient record, neither of which exist
here, this Court declines to serve as fact-finder, and relies
on the record created before OOR. Heltzel. As such,
our review is limited to the issues presented in the appeals