Opinion
No. 419 C.D. 2012
01-12-2015
Jean Coulter, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jean Coulter (Requester) petitions, pro se, for review of the February 12, 2012 final determination of the Office of Open Records (OOR) upholding the denial of her request for certain information from the Department of Public Welfare (DPW) under the Pennsylvania Right to Know Law (RTKL).
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
On December 13, 2011, Requester submitted a RTKL request to DPW seeking to obtain information regarding complaints made to DPW's Office of Children, Youth, and Families about Butler County Children and Youth Agency's treatment of Requester's child in foster care. (Reproduced Record (R.R.) at 1.) The December 9, 2011 RTKL request stated as follows:
Requester's reproduced record does not include the lower case "a" following the page number as required by Pa.R.A.P. 2173.
RECORDS REQUESTED(R.R. at 2.) The language of this last paragraph is identical to the RTKL request that Requester filed with DPW on October 8, 2011. The OOR upheld DPW's denial of that request and Requester filed a petition for review with this Court at 149 C.D. 2012.
I have previously requested this information in my Request of October 8, 2011, however, your agency misinterpreted my request to be for information concerning the investigation of employees (contract suppliers, etc.) of Butler County CYS.
I have always intended this to be a request for information as to the investigations which should have occurred as a result of my exposure of wrong-doing by DEPARTMENT OF PUBLIC WELFARE EMPLOYEES! I informed the head of the DPW of these wrong-doings, so that the DPW employees would be investigated, and by his letter, addressed to a number of individuals (making the matter PUBLIC) he has indicated that there was indeed an investigation, and all of his employees were found to have done nothing wrong (even though they clearly assisted in the cover up of information which was COURT-ORDERED to be released)!
So, again:
I am requesting the names of the investigator(s), the notes of their investigations, internal correspondences both those within the DPW (other investigators and with DPW employees implicated in the investigation) as well as correspondence with the County Agency and the various versions of the reports produced as a result of these investigations. Clearly these investigations are in the "public domain, as the Secretary has distributed the "results".
On December 20, 2011, DPW notified Requester that an additional thirty days was necessary to respond to her request. (R.R. at 1.) By letter dated January 19, 2012, DPW denied Requester's request. DPW stated that because Requester's child has been placed in confidential care following Requester's conviction for crimes against her child and because of the termination of Requester's parental rights, DPW "would not release documents which would violate the confidential placement of the child, but would release any record permitted under the RTKL that would not jeopardize the safety, placement and privacy of the child." (R.R. at 1.) DPW recognized Requester's request as one for investigation records of DPW employees, whom Requester accused of wrongdoing with her child. DPW denied Requester's request on the grounds that all documents sought were within section 708(b)(17) of the RTKL's, 65 P.S. §67.708(b)(17), noncriminal investigation exemption, which states that all agency records relating to noncriminal investigations are exempt from access by a requester. DPW also cited other RTKL exemptions, as well as stated that some of the requested records were not in the possession of DPW. (R.R. at 1-7.) Requester appealed to the OOR.
Pursuant to section 902(a)(4) and (b)(2) of the RTKL, 65 P.S. §67.902(a)(4), (b)(2), an agency's open records officer may seek a thirty-day extension on the ground that a legal review is necessary to determine whether the requested record is subject to access under the RTKL.
By final determination dated February 15, 2012, the OOR stated as follows:
The issues raised in this appeal concerning the same records have already been adjudicated by the OOR and an appeal is currently pending before the Commonwealth Court. See Coulter v. Pennsylvania Department of Welfare, OOR Dkt. AP 2011-1666, 2011 PA O.O.R.D. LEXIS ___, appeal pending 149 C.D. 2012 [Coulter I]. Accordingly, the OOR
incorporates its previous Final Determination and denies the current appeal.(R.R. at 14.) In July 2012, Requester filed a petition to include her December 9, 2011 RTKL request in the record. By order dated July 24, 2012, we denied that request because the documents were not part of the record before the OOR. In addition, we determined that the current matter was substantially duplicative of Requester's petition for review at No. 149 C.D. 2012 and thus stayed the case pending disposition of that matter.
Our decision in Coulter I was filed on April 18, 2013. In denying Requester's appeal, we explained that:
[W]hether the documents identified in Requester's request are covered by section 708(b)(17) of the RTKL can be determined by comparing the request itself with the language of section 708(b)(17). Department of Health [v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth 2010)]. Here, Requester seeks the DPW's "correspondence" and "the various versions of the reports that were produced as a result of the investigations." By its very terms, section 70[8](b)(17) exempts "correspondence and reports" related to a noncriminal investigation, and this language clearly encompasses the documents that Requester seeks. Therefore, as in Department of Health, we conclude that DPW carried its burden of proof by showing that Requester requests documents that fall within the plain language of the noncriminal investigation exemption.Coulter I, 65 A.3d 1085, 1090 (Pa. Cmwlth. 2013). By order dated January 10, 2013, we lifted the stay and directed that this appeal be submitted on briefs.
Having concluded that the language of Requester's request, standing alone, proves that Requester seeks documents that are exempt under section 708(b)(17), we need not address Requester's [remaining] arguments . . . . Because the OOR properly determined that the requested records are excepted under the noncriminal investigation exemption, we affirm the OOR's final determination.
On appeal to this Court, Requester argues that the noncriminal investigation exemption was abrogated when the secretary of DPW released the results of the investigation to Requester and that DPW must redact the records as necessary in order to permit release of the public portions of the requested records.
Our standard of review of determinations made by appeals officers under the RTKL is de novo, and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
We first address DPW's application for relief, in which DPW argues that Requester has not preserved any issues for appellate review because the issues in Requester's brief are not found in her petition for review. In relevant part, Requester's petition for review states as follows:
By application for relief dated September 10, 2014, DPW sought dismissal of this appeal because Requester failed to preserve any issues on appeal. By separate application for relief dated September 10, 2014, DPW requested suspension of the briefing schedule pending disposition of DPW's application for relief. By order dated September 11, 2014, this Court directed that the application to dismiss be decided with the merits and denied DPW's application to stay the briefing schedule.
Petitioner states the following Objections to the determination by the Appeals Officer of the Office of Open Records:
a.) Extreme bias of the Appeals Officer, in this matter as well as others in which Petitioner has been a party to the matter. This results in Error of Law and Abuse of Discretion. [sic] by the Appeals Officer.
b.) Appeals Officer dismissed the matter as previously litigated - but neither Party has advanced this reason as justification for dismissal, or even requested relief. This results in Error of Law and Abuse of Discretion. [sic] by the Appeals Officers.
(Requester's Petition for Review.)c.) Further, the appeal of the similar request was quashed as untimely - despite timely filing with the Administrative Agency. Petitioner did not appeal the order quashing the prior, similar request, as Petitioner realized that the instant matter would provide the required information. This occurred despite support for reinstatement of the appeal, as was determined by the Supreme Court in , [sic] and which Petitioner would have applied for, had the instant matter not been pending. This results in Error of Law and Abuse of Discretion. [sic] by the Appeals Officer.
d.) Determination is based on, and relies on matters not of record in the instant case - Error of Law and Abuse of Discretion.
Requester's brief sets forth the following Statement of Questions Involved:
I. WHEN THE "AGENCY HEAD" RELEASED THE RESULTS OF THE NON-CRIMINAL INVESTIGATION, IS THE "NON-CRIMINAL INVESTIGATION EXEMPTION" ABROGATED? OR IN OTHER WORDS, DOES THE RIGHT TO KNOW LAW REQUIRE ACCESS TO THE REMAINDER OF THE INFORMATION, WHEN A SPECIFICALLY ENUMERATED PORTION OF THE "RECORD" IS DISCLOSED BY THE AGENCY HEAD?(Requester's Brief at 4.)
II. FOLLOWING THE AGENCY HEAD'S RELEASE OF THE RESULTS OF THE NON-CRIMINAL INVESTIGATION, MUST THE AGENCY REDACT AS NECESSARY, IN ORDER TO PERMIT RELEASE OF THE NOW PUBLIC PORTIONS OF THE REQUESTED RECORDS?
Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1502 provides that a petition for review "shall be the exclusive procedure for judicial review of a determination of a government unit." "The statement of objections [in the petition for review] will be deemed to include every subsidiary question fairly comprised therein." Pa.R.A.P. 1513(d). "[W]here a Claimant fails to include an issue in his petition for review, but addresses the issue in his brief, this court has declined to consider the issue, since it was not raised in the stated objections in the petition for review, nor 'fairly comprised therein' in accordance with Pa.R.A.P. 1513(a)." Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006) (quoting Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991)). See Mostatab, D.M.D. v. State Board of Dentistry, 881 A.2d 1271, 1273 (Pa. Cmwlth. 2005) ("Pa. R.A.P. 1513 requires that a petition for review contain a general statement of the objections and as this court has previously stated, issues not raised in the petition for review will not be addressed."); North Hills Passavant Hospital v. Department of Health, 674 A.2d 742, 745 (Pa. Cmwlth. 1996) (declining to address an argument because it was not raised in the petition for review); Chene v. Workmen's Compensation Appeal Board (Giant Eagle, Inc.), 632 A.2d 1058, 1061 (Pa. Cmwlth. 1993) ("Because the only issues addressed in Claimant's brief cannot be deemed to be 'fairly comprised' within the unaddressed issue raised in his Petition [for Review], those issues are not properly preserved and cannot be considered."). Likewise, any issue raised in a petition for review but not addressed in the brief on appeal is waived. McDonough v. Unemployment Compensation Board of Review, 670 A.2d 749, 750 (Pa. Cmwlth. 1996).
In this case, the arguments presented in Requester's brief concern whether the actions of the secretary of DPW abrogated the noncriminal investigation exemption under section 708(b)(17) of the RTKL and whether DPW must redact non-public information from the requested records before public disclosure. In contrast, the issues in Requester's petition for review concern the propriety of the actions of the OOR's appeals officer; Requester's arguments regarding application of the noncriminal investigation exemption are not "fairly comprised therein." Pa.R.A.P. 1513(d); Jimoh. Thus, Requester has failed to preserve any issues for appellate review. Because Requester has waived all issues on appeal, we need not address her arguments.
Moreover, even if the issues were not waived, Requester's arguments would fail based on our disposition in Coulter I. As in that case, regardless of what investigation she refers to, the records of the investigation are exempt under the noncriminal investigation exemption found in section 708(b)(17)(ii) of the RTKL, which exempts "a record of an agency relating to a noncriminal investigation" that includes "investigative materials, notes, correspondence and reports." 65 P.S. §67.708(b)(17)(ii). Requester's argument that releasing the results of an investigation abrogates the exemption is not supported by statute or reason; accepting this contention would render the records of every investigation subject to disclosure upon completion.
Accordingly, we grant DPW's application for relief and dismiss Requester's appeal.
Alternatively, DPW argues that Requester's request is barred by claim and issue preclusion because of our disposition in Coulter I. We need not address DPW's arguments, because Requester has waived all issues on appeal. However, even if Requester preserved any issues on appeal, Requester has made a new request, asserting that DPW misinterpreted her first request, and has asserted new arguments. Thus, claim and issue preclusion would not be applicable. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of January, 2015, the application for relief filed by the Department of Public Welfare is granted and the above-captioned appeal is dismissed.
/s/_________
PATRICIA A. McCULLOUGH, Judge