FINAL DETERMINATION. Docket No.: AP INTRODUCTION. Michael Buffer and The Citizens Voice (collectively Requester ) submitted a request

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Deirdre Walton
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1 FINAL DETERMINATION IN THE MATTER OF : : MICHAEL BUFFER AND THE : CITIZENS VOICE, : Complainant : : v. : : WEST SIDE CAREER AND : Docket No.: AP TECHNOLOGY CENTER, : Respondent : INTRODUCTION Michael Buffer and The Citizens Voice (collectively Requester ) submitted a request ( Request ) to the West Side Career and Technology Center ( Center ) pursuant to the Right-to- Know Law, 65 P.S et seq., ( RTKL ), seeking financial records documenting expenditures made by the Center s Administrative Director. The Center denied the Request, arguing that the records are related to a criminal investigation. The Requester appealed to the Office of Open Records ( OOR ). For the reasons set forth in this Final Determination, the appeal is granted and the Center is required to take further action as directed. FACTUAL BACKGROUND On February 26, 2014, the Request was filed, seeking [s]tatements of credit/debit card purchases made by Nancy Tkatch as [the Center s] administrative director and receipts and/or invoices of those purchases. On that same date, the Center denied the Request, arguing that the records are exempt criminal investigative records because the records were turned over to the 1

2 Kingston Police Department and relate to a criminal investigation which is in its infancy. See 65 P.S (b)(16). On March 19, 2014, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record, and directed the Center to notify any third parties of their ability to participate in the appeal pursuant to 65 P.S (c). On March 19, 2014, the Center made a submission, arguing that the OOR lacks jurisdiction over this matter. LEGAL ANALYSIS The objective of the Right to Know Law... is to empower citizens by affording them access to information concerning the activities of their government. SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S (a). An appeals officer is required to review all information filed relating to the request. 65 P.S (a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing is discretionary and non-appealable. Id. The law also states that an appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id. Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. 2

3 The Center is a local agency subject to the RTKL that is required to disclose public records. 65 P.S Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S (b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence. 65 P.S (a). Preponderance of the evidence has been defined as such proof as leads the 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, 439 (Pa. Commw. Ct. 2011) (quoting Dep t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). The Center argues that the records at issue are exempt from disclosure pursuant to Section 708(b)(16) of the RTKL because they has been provided to the Kingston Police Department in relation to an ongoing criminal investigation. Section 708(b)(16) exempts from disclosure [a] record of an agency relating to or resulting in a criminal investigation. 65 P.S (b)(16). Meanwhile, Section 503(d)(2) of the RTKL states that [t]he district attorney of a county shall designate one or more appeals officers to hear appeals relating to access to criminal investigative record in possession of a local agency of that county. 65 P.S (d)(2). Section 503(d)(2) adds that [t]he appeals officer shall determine if the record requested is a criminal investigative record. Id. As a result, the OOR routinely holds that it 3

4 lacks jurisdiction over appeals involving criminal investigative records and dismisses appeals when records are alleged to be criminal investigative records. See, e.g., Mitchell v. City of Bethlehem, OOR Dkt. AP , 2014 PA O.O.R.D. LEXIS 83. Because the Center alleges that the records are criminal investigative records, the Center argues that the OOR lacks jurisdiction over this appeal. The OOR dealt with a similar issue in Silver v. City of Pittsburgh, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS 886, appeal pending SA In that case, the OOR noted: [I]t strains credulity to imagine that the requested records overtime report forms and correspondence regarding how said forms should be completed are criminal investigative records and thus exempt under Section 708(b)(16) of the RTKL. The withheld records are related to a criminal investigation only in the sense that they have been obtained by the FBI as evidence during their investigation. The fact that a record becomes evidence in a criminal investigation especially a nominally public record dealing with the expenditure of public funds does not transform that record into one exempt from disclosure pursuant to Section 708(b)(16). The investigation at issue is not being conducted by the City, and as such, the records at issue were not created or compiled by the City in relation to a criminal investigation. See Hayes v. Pennsylvania Department of Public Welfare, OOR Dkt. AP , 2012 PA O.O.R.D. LEXIS 530 ( [A] review of case law interpreting the RTKL and its predecessor statute indicates that the investigative exemption has only been extended to protect the records of the agency carrying out an investigation ). Section 708(b)(16) of the RTKL protects from disclosure various records that, if disclosed, would jeopardize a criminal investigation or reveal the institution, progress, or result of a criminal investigation. See generally 65 P.S (b)(16); see, e.g., Danysh v. Pennsylvania State Police, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS 767 ( [T]he PSP provides sufficient evidence that the PSP undertook a criminal investigation, the PSP gathered information as part of its investigative activities related to the homicide, and that the requested photographs are a component of the Homicide Investigation Report ); Donahue v. City of Hazleton, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS (involving incident reports and intelligence analysis regarding the requester); American Civil Liberties Union of Pennsylvania v. Allegheny County, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS 499 (involving records regarding the County s SWAT teams). While the withheld records may be critical evidence in the FBI s investigation of the Bureau of Police, there is no evidence that release of these records would jeopardize the ongoing criminal investigation or reveal the progress or result of the investigation. The purpose of 4

5 the RTKL is to enable citizens to scrutinize their government and make government officials accountable for their actions. See Bowling, supra. As such, the OOR must interpret the RTKL liberally to effect its purpose. Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Commw. Ct. 2011). The City s broad interpretation of the criminal investigative exemption threatens to frustrate the very purpose of the RTKL by shielding records from disclosure when an agency is accused of wrongdoing. The requested records are incapable of being exempt under Section 708(b)(16), even if they are potentially evidence in a criminal investigation. As such, the OOR has jurisdiction over this matter. In situations such as this, the OOR will not deprive itself of jurisdiction over appeals where the records at issue are plainly public records, i.e., dealing with the expenditure of public funds, and, therefore, incapable of being criminal investigative records. Id.; see also University of Pittsburgh Medical Center v. City of Pittsburgh, OOR Dkt. AP , 2014 PA O.O.R.D. LEXIS 186. Here, like in Silver, an agency other than the Center is conducting an investigation. The requested financial records, which document the use of public funds, are not investigatory in nature, and have merely been obtained as evidence during an investigation. The fact that these records have been subsumed by an investigation does not change their inherently public nature. The Center has provided no evidence that disclosure of the requested financial records in any way would reveal the institution or progress of the investigation. Therefore, pursuant to Silver, the OOR finds that Section 708(b)(16) of the RTKL does not apply to the records at issue because they are in capable of being criminal investigative records. As the Center has not provided any other reason for denial, the OOR finds that the records are subject to access. CONCLUSION For the foregoing reasons, Requester s appeal is granted and the Center is required to provide all withheld records to the Requester within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, 5

6 any party may appeal to the Luzerne County Court of Common Pleas. 65 P.S (a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: FINAL DETERMINATION ISSUED AND MAILED: April 9, 2014 APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to: Michael Buffer (via only); Charles Coslett, Esq. (via only) 6

FINAL DETERMINATION INTRODUCTION. Robert Kalinowski and The Citizens Voice (collectively Requester ) submitted a

FINAL DETERMINATION INTRODUCTION. Robert Kalinowski and The Citizens Voice (collectively Requester ) submitted a FINAL DETERMINATION IN THE MATTER OF ROBERT KALINOWSKI AND THE CITIZENS VOICE, Complainant v. Docket No. AP 2014-0272 LUZERNE COUNTY, Respondent INTRODUCTION Robert Kalinowski and The Citizens Voice (collectively