The OOR continues to refine its consideration of a potpourri of Right-to-Know issues and implements with those decisions several recent decisions of the Commonwealth Court.
In a decision involving the City of Bethlehem, Dye v. City of Bethlehem, OOR Dkt. AP 2010-0510, the OOR granted in part and denied in part an individual’s request for policies and procedures relating to strip searches and documents and videos regarding such searches from 2000 to the present. The City responded that the the request was insufficiently specific and denied access under the personal security exemption, 65 P.S. 708(b)(1)(ii). The City asserted that knowing the strip search procedures would permit criminals to thwart the efforts of police officers and to manipulate the search process, which may pose a threat to the officers. The OOR agreed that the request for documents and video was not sufficiently specific. It noted the Commonwealth Court’s decision in Pennsylvania State Police v. Office of Open Records, 995 A.2d 515 (Pa. Cmwlth. 2010) prohibits a requester’s attempt to modify or amend the request once appealed.
As to policy and procedure documents, the OOR granted in part and denied in part the request. It denied the request to the extent the City had satisfied the personal security exemption test of a substantial demonstrable risk of physical harm for the areas it had outlined in its denial. However, the OOR denied the request as to procedures which concern the number of officers conducting a search, the location where the search will take place, and the gender of the searching officer, as those did not satisfy the personal security exemption.
The decision demonstrates the OOR’s efforts to protect police procedures to the extent the department can demonstrate a substantial and reasonable likelihood of personal harm or security, thus, police departments do not have to “bare all” when it comes to strip search procedures. The decision is consistent with several prior OOR and court decisions under the current and prior Right-to-Know laws.
The OOR addressed an appeal involving a request to PennDOT for information on a certain intersection in Monroe County. Pohlman v. Dept. of Transportation, OOR Dkt. AP 2010-0500. PennDOT had partially granted and partially denied the request. It agreed to provide a two-page crash report, denied access to accident reports under 75 Pa. C.S. §3751 and denied access to complaints and action taken by PennDOT under the non-criminal investigative exemption, 65 P.S. §708(b)(17). PennDOT further claimed it did not have information on sight distance or traffic engineering studies.
OOR affirmed the denial as to the complaints received under §708(b)(17) but reversed the denial as to PennDOT’s action upon such complaints due to a lack of evidence submitted by PennDOT to the extent it did not directly relate to the complaints lodged. OOR pointed out that under §708(b)(17)(vi)(A) fines or penalties or actions as to licenses etc. are not protected if such records were a part of PennDOT’s action. The OOR also affirmed as to the denial of police accident reports citing to, 67 Pa. Code §95.2 which restricted the release of accident reports by PennDOT to certain agencies and individuals. OOR cited to its previous decision in Aris v. PennDOT, OOR Dkt. AP 2009-0808.
The OOR continues to pay homage to statutes and regulations which appear to restrict access to public records and to a broad interpretation of the non-criminal investigative exemption which appears, so far, to be supported by the Commonwealth Court. See Stein v. Plymouth Township, 994 A.2d 1179, (Pa. Cmwlth. 2010).
RECEIPT OF SOCIAL SERVICES
In Ross v. Lackawanna County, OOR Dkt. AP-2010-0514 the OOR continued to broadly interpret 65 P.S. §708(b)(28) to deny the request by the daughter of an individual who had received contact from the Area Agency on Aging. The OOR held that the exemption is broad and that it does not permit for any exception to its breadth just because of a familial relationship between the requester and the person who received the social services records sought.
University Foundation Donor Records and the Burden on Agencies Denying Records
Coming in the aftermath of the Commonwealth Court decision in the East Stroudsburg University case, 995 A.2d 496 (Pa. Cmwlth. 2010), OOR recently decided the case of Chute v. Edinboro University, OOR Dkt. AP-2010-0479. In that case, a reporter for the Pittsburgh Post Gazette had submitted Right-to-Know requests to Edinboro University seeking records regarding donations, gifts, and bequests made to the University or the Edinboro University Foundation. The University denied the requests saying that they were not sufficiently specific and that the Foundation was not an agency. They also asserted the exclusion of certain donor information under 65 P.S. §708(b)(13). (Note: the exemption excludes only the “identity of an individual” who lawfully makes a donation to an agency unless that donation is intended for or restricted to remuneration or tangible benefit to a public official or employee of the agency.) The OOR granted the appeal and ordered the release of the records subject to redaction of donor identification information. The determination dismissed the University’s assertion that, unlike the Foundation in East Stroudsburg, it was a wholly separate entity acting independently of the University. The OOR found a contractual relationship between the University and the Foundation and that the Foundation preformed a governmental function under 65 P.S. §67.506(d)(1). The OOR underscored the fact that it would not put form over function and that it was clear that the contractual relationship between the Foundation and the University rendered it part of the “governmental function” of University itself. The OOR highlighted the language of Judge Pellegrini in the East Stroudsburg case that a private contractor necessarily carries out a governmental function because the government always acts as a government.
The Burden on Agencies Denying Records
Finally, in Trego v. Slatington Borough, Dkt. AP-2010-0505 the OOR clearly showed, once again, that an agency that fails to satisfy its burden to support its denial by sufficient evidence will be ordered to release the records requested. In this particular case, other than a letter from the borough council initially denying the request stating that it was not sufficiently specific and after a specific notice from the OOR of a time to submit additional evidence, the agency failed to submit any additional factual information resulting in a grant of the requester’s appeal and an order to release the records.
Agencies must take note of the burden they have under the new law to submit evidence in support of any denial and may not rely on general denials or claimed exemptions unsupported by specific affidavit, factual evidence or supportable legal argument.
Disclaimer: This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group. The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law. THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE. The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”. The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.