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Crocco v. Pennsylvania Department of Health

Commonwealth Court of Pennsylvania

July 11, 2019

Jean Crocco, Petitioner
Pennsylvania Department of Health, Respondent

          Argued: June 3, 2019



          Robert Simpson, Judge.

         Jean 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), [1] 65 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).[2] 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.

         I. Background

         Requester 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. §67.708(b)(6)(i)(A).

         Requester 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.

         OOR 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.

         Importantly, 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 Report).

         As direct interest participants in the appeal before OOR, Providers submitted argument and evidence in support of DOH's denial.[3] 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. at 212a-14a).

         Providers 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).

         OOR 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 professionals.

         Based 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.

         Requester 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.

         Requester timely petitioned for review from the Final Determination to this Court.[4] Following motions practice, this Court granted intervenor status to Providers. After extensive briefing and argument, we consider the matter.

         II. Discussion

         Records 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.

         The 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).

         On 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.

         Emphasizing 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.

         A. Waiver

         First, 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.

         Section 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. Cmwlth. 2011).

         Further, 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 officer stage.

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