Opinion
No. 2213 C.D. 2013
06-03-2015
American Civil Liberties Union of Pennsylvania, Appellant v. The City of Pittsburgh
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The American Civil Liberties Union of Pennsylvania (ACLU) appeals the order of the Court of Common Pleas of Allegheny County (C.P. Court) that affirmed the order of the Pennsylvania Office of Open Records (OOR) and dismissed the ACLU's appeal.
I. Background.
A. ACLU's Request.
On March 6, 2013, the ACLU made a records request of the City of Pittsburgh (City) under the Right-to-Know Law (Law) and sought all incident reports or other records that documented each time a Special Weapons and Tactics (SWAT) team was deployed. The ACLU sought reports that showed the breakdown of SWAT team deployments by crime, requesting agency, purpose for the raid and post-deployment documentation, such as all documents relating to the number of no-knock warrants applied for, granted, denied, or modified in conjunction with a SWAT team deployment. The ACLU also sought all documents relating to the use of force by SWAT teams and injuries incurred by anyone at the scene of a SWAT team operation. The ACLU further demanded all procedures, regulations, or guidelines related to SWAT teams as well as the chain of command, ranks, selection of personnel, salaries, and length of service of team personnel. The ACLU also sought training materials used to instruct SWAT teams; records related to the procurement, maintenance or deployment of SWAT team weapons and other equipment; all written mutual aid agreements or memoranda of understanding with federal, state, and local agencies; all records pertaining to funding sources and grants that the SWAT team applied for, and all internal or external audits of SWAT team performances or records of cost effectiveness. The ACLU additionally sought information regarding the use of cutting edge weaponry and technology.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
B. The City's Denial.
By email dated April 11, 2013, Benjamin Smith (Smith), the City's open records officer, denied the request:
The RTKL [Law] exempts records pertaining to investigations, regardless of whether the investigation is closed and regardless of whether they are of a criminal or non-criminal nature. (See 65 P.S. §§67.708(b)(16)(i)-(vi) and 67.708(b)(17)(i)-(vi)). Your request is further denied because the requested records may contain criminal history record information; such information is subject to the protections of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §9101, et seq., and therefore barred from disclosure to a non-criminal justice agency pursuant to a RTKL [Law] request. See 65 P.S. §§67.102 and 67.305(a)(3). Your request is also
denied pursuant to 65 P.S. §§67.703, 708(b)(1)(ii), 708(b)(2), 708(b)(3), 708(b)(6)(i)(A), 708(b)(26) and 708(b)(10)(i)(A). Furthermore, the RTKL [Law] instructs that the City is not required to create records which do not currently exist or maintain information in a form in which it does not currently exist. See 65 P.S. §67.705. Additionally, nothing in the RTKL [Law] shall be construed to modify, rescind or supersede any of the City's record retention policies. See 65 P.S. §67.507.Email from Benjamin Smith, April 11, 2013, at 1; Reproduced Record (R.R.) at 41a.
C. Proceedings before the OOR.
The ACLU appealed the denial to the OOR:
The City's response does not satisfy the requirements of the Right to Know Law for a denial of a request. Under Section 903(2) the City must include 'the specific reasons for the denial' as well as the citation to the relevant legal authority. . . . The burden of proof is upon the City to show why the information sought is exempt from disclosure - but the City's response fails to provide any factual information in support of its reliance on these subsections. In fact, the City has provided no evidence regarding the nature of the records being withheld.Appeal to Office of Open Records, May 2, 2013, at 1-2; R.R. at 44a-45a.
The City has failed to meet its burden under any of the exemptions cited. Thus, we believe there is no reason why the City should not act with total transparency in this matter and provide the records requested.
. . . .
The ACLU of Pennsylvania respectfully requests that the Office of Open Records issue a determination that the denial of its request violates the RTKL [Law] and order the City of Pittsburgh to produce the requested documents. (Citation omitted).
By letter dated May 15, 2013, Smith responded to the ACLU's appeal. With respect to incident reports and related records, Smith indicated that any records were exempt from disclosure as they were not public records under the Law. Further, Smith asserted that the release of any of the requested records "would jeopardize public protection activity, public safety, and/or the safety of buildings and infrastructure." Response of City of Pittsburgh, May 15, 2013, at 2-6; R.R. at 48a-52a. With respect to the procurement, maintenance, or deployment of SWAT team weaponry and other equipment, Smith indicated the City possesses no such records as it did not purchase any of the weaponry or other equipment used by its SWAT teams. Smith included supporting affidavits from Raymond Demichiei, the City's deputy director of the Office of Emergency Management and Homeland Security.
In a final determination issued May 24, 2013, the OOR denied the appeal:
In its denial letter, the City argued that several exceptions apply. On appeal, the Requester [ACLU] argues simply that the RTKL [Law] places the burden of proof upon the City and that the City has provided no factual information in support of its assertion that these exemptions apply. However, this statement is not sufficient to address the grounds for denial raised by the City. The Commonwealth Court rejected a similar statement in Saunders [v. Department of Corrections, 48 A.3d 540 (Pa. Cmwlth. 2012)] . . . .Final Determination of OOR, May 24, 2013, at 1-2; R.R. at 58a-59a.
The OOR finds that the present appeal is factually analogous to Saunders, as the Requester does not explain why the requested records 'fall under the asserted exemptions.' Therefore, the appeal is dismissed pursuant to Section 1101(a)(1) of the RTKL [Law] for failing to adequately address the grounds for denial raised by the County [sic]. (Citation omitted.)
D. The ACLU's Appeal to the C.P. Court.
The ACLU appealed to the C.P. Court. After hearing oral argument and reviewing the parties' briefs, the C.P. Court denied the appeal. Before the C.P. Court, the ACLU argued that it was unable to comply with the Section 1101(a)(1) of the Law, 65 P.S. §67.1101(a)(1), when it appealed to the OOR, because the City failed to comply with Section 903(1-2) of the Law, 65 P.S. §67.903(1-2), when it failed to provide a description of the record requested along with the specific reasons for the denial.
Section 1101(a) of the Law, 65 P.S. §67.1101(a), provides:
(a) Authorization.—
(1) If a written request for access to a record is denied or deemed denied, the requester may file an appeal with the Office of Open Records or judicial, legislative or other appeals officer designated under section 503(d) within 15 business days of the mailing date of the agency's response or within 15 business days of a deemed denial. The appeal shall state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request.
Section 903 of the Law, 65 P.S. §67.903, provides in pertinent part:
If an agency's response is a denial of a written response for access whether in whole or in part, the denial shall be issued in writing and shall include:
(1) A description of the record requested.
(2) The specific reasons for the denial, including a citation of supporting legal authority.
The C.P. Court concluded that the ACLU's appeal to the OOR lacked sufficient allegations to support the assertion that the requested records were public and that the appeal did not respond to the exemptions and other grounds the City asserted when it denied the request. As with the OOR, on the basis of Saunders, the C.P. Court concluded that the OOR properly dismissed the ACLU's appeal for failure to comply with Section 1101(a)(1) of the Law, 65 P.S. §67.1101(a)(1).
In Saunders, Craig Saunders (Saunders) submitted a request under the Law to the Department of Corrections (DOC) and sought access to:
[T]he job descriptions of the Incoming Publication Review Committee. . . . any and all policies, directives, or regulations regarding the status, classifications, or treatment of 'Five Percenters,' also known as the 'Nation of Gods and Earths;' and . . . any and all policies, directives, or regulations that provide a formal or official definition of 'gang' and 'gang members' for the Department [DOC], its Institutions, and personnel.Saunders, 48 A.3d at 541.
DOC granted access to the job descriptions of the members of the publication review committee but denied access to the remaining records. DOC asserted that the records were exempt from disclosure under Section 708(b)(1)(h) of the Law, 65 P.S. §67.708(b)(1)(h) (personal security exemption), Section 708(b)(2) of the Law, 65 P.S. §67.708(b)(2) (law enforcement exemption), Section 708(b)(16), 65 P.S. §67.708(b)(16) (criminal investigation exemption), Section 708(b)(17) (non-criminal investigation exemption), and Section 708(b)(10)(i)(A), 65 P.S. §67.708(b)(10)(i)(A) (internal predecisional deliberative exemption). Saunders, 48 A.3d at 541-542.
Saunders appealed to the OOR. The OOR dismissed the appeal because Saunders failed to state the ground upon which he asserted that the requested records were public records as required by Section 1101(a)(1) of the Law, 65 P.S. §67.1101(a)(1). Saunders, 48 A.3d at 542.
Saunders petitioned for review with this Court and contended that DOC failed to produce sufficient facts to rebut the presumption that the records in its possession were public records and failed to meet its burden to prove that the requested records were exempt from disclosure. In addition, Saunders argued that because DOC failed to provide a description of the records requested, he was unable to make sufficiently specific objections to DOC's denial. Saunders, 48 A.3d 542.
This Court affirmed:
A record in the possession of a Commonwealth agency is presumed to be a public record, unless the record is exempt under section 708 of the RTKL [Law], protected by a privilege, or exempt from disclosure under other law or court order. . . . A Commonwealth agency bears the burden of proving that a record is exempt from public access. . . .
Petitioner's [Saunders] first argument addresses the sufficiency of the Department's [DOC] denial of his request. Petitioner [Saunders] contends that because the Department's [DOC] denial merely parroted the statutory language he was unable to properly respond to the Department's [DOC] assertion of exemption from disclosure. Section 903 of the RTKL [Law], 65 P.S. § 67.903, states that a denial of access shall include, inter alia, a description of the record requested and the specific reasons for the denial including a citation of the
supporting legal authority. Correspondingly, Section 1101 of the RTKL [Law], 65 P.S. § 67.1101, requires that a party appealing a denial shall 'state the grounds upon which the requester asserts that the record is a public record . . . and shall address any grounds stated by the agency for . . . denying the request.' . . . .Saunders, 48 A.3d at 542-543.
The Department [DOC] asserted that the requested records were exempt from disclosure under five different subsections of Section 708. Petitioner [Saunders] is correct in noting that the Department [DOC] merely parroted the statutory language. However, the Department's [DOC] citations to the various subsections of Section 708 were sufficient to give him notice of the grounds for denial. . . . Once the Department [DOC] asserted that the requested records were exempt from disclosure under Section 708, Petitioner [Saunders] was required by Section 1101 to state why the records did not fall under the asserted exemptions and, thus, were public records subject to access. Petitioner [Saunders] failed to do so. (Citations and footnote omitted).
With respect to whether Saunders was unable to formulate sufficiently specific objections to DOC's denial because DOC failed to provide a description of the records requested, this Court found that this issue was waived because Saunders did not raise it in its appeal to the OOR. Saunders, 48 A.3d at 542.
The C.P. Court found that, as in Saunders, the ACLU failed to raise before the OOR that it was unable to formulate specific objections to the denial because the City failed to provide a description of the records requested. The C.P. Court stated that the issue was waived in Saunders and that "the ACLU likewise failed to raise the issue before the OOR. The thrust of the ACLU's appeal to the OOR was the City's failure to meet its burden that any of the exemptions applied." Common Pleas Court Opinion, December 30, 2013, at 7.
II. Issue before this Court.
The ACLU contends that it satisfied its burden under Section 1101(a) of the Law, 65 P.S. §67.1101(a), to state the grounds to establish the requested records were public records and address any grounds stated by the City for the denial of its request in its appeal to the OOR.
This Court's review is limited to determining whether findings of fact are supported by substantial evidence and whether the common pleas court committed an error of law or abused its discretion in reaching its decision. This Court's scope of review for a question of law under the Law is plenary. Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025 (Pa. Cmwlth. 2011).
The ACLU asserts that the City's denial failed to comply with Section 903 of the Law, 65 P.S. §67.903, because when it denied the request the City neither identified the responsive record nor explained why the identified records were exempt. Due to the inadequate response, the ACLU only had enough information on appeal to state that the City's denial was deficient and that the presumably public records should be released. The ACLU argues that the City had the ability to provide a more detailed explanation since it did so when it submitted its response to the ACLU's appeal to the OOR. The ACLU also argues that the presumption under the Law that the records are public means that it, as the requester, did not bear the burden to establish the non-applicability of statutory exemptions. See Levy v. Senate of Pennsylvania, 65 A.3d 364 (Pa. 2013).
III. Discussion.
As both the OOR and the common pleas court relied on Saunders, it is necessary to compare the present case with Saunders. In Saunders, DOC asserted the requested records were exempt from disclosure under five separate exemptions in the Law but did not explain further the applicability of the exemptions. The OOR denied Saunders's appeal. Before this Court, Saunders argued that DOC's denial of the records request was insufficient because it merely "parroted" the statutory language concerning the exemptions so that Saunders was unable to properly respond to the assertions of exemptions. This Court held that DOC's citations to the various subsections of Section 708 of the Law, 65 P.S. §67.708 were sufficient to give Saunders notice of the basis for the denial. As a result, this Court determined that Saunders failed to fulfill the requirements of Section 1101 of the Law, 65 P.S. §67.1101, because he failed to state why the records did not fall under the asserted exemptions and why the records were public records subject to access. In addition, this Court ruled that Saunders waived his argument, that because DOC failed to provide a description of the records requested, he was unable to formulate sufficiently specific objections to DOC's denial in his appeal to the OOR.
Here, the ACLU requested records from the City concerning SWAT teams. When the City denied the request, Smith, on behalf of the City, cited eight sections of the Law which he claimed exempted any records from disclosure. He also cited Section 705 of the Law, 65 P.S. §67.705, which provides that an agency has no obligation to create records which do not exist.
In its appeal to the OOR, the ACLU argued that the City's denial did not satisfy the requirements for a denial of a records request because it failed to include the reasons for the denial as well as the citation to relevant legal authority. Citing Saunders, the OOR denied the appeal on the basis that the ACLU failed to address the grounds for denial raised by the City. The ACLU appealed to the C.P. Court which affirmed and also determined that, as in Saunders, the ACLU did not preserve the issue that it was unable to formulate specific objections to the denial because the City failed to provide a description of the records requested.
In both cases, the requester made a request for the release of records from an agency under the Law. In both cases, the agency denied the requests and cited subsections of the Law under which the requested records were allegedly exempt. In both cases, the OOR determined that the requester failed to comply with the requirements of Section 1101 of the Law, 65 P.S. §67.1101. Further, in both cases, a reviewing court determined that the requester waived the issue that the requester was unable to formulate specific objections to the denial because the City failed to provide a description of the records requested.
The ACLU argues that this Court's holding in Saunders is flawed because it requires requesting parties to do the impossible and articulate why records that are already presumed public should not be exempt, even when the agency's denial did not provide any substantive information and just listed exemptions contained in the Law. Essentially, the ACLU is asking this Court to overrule Saunders, which this Court will not do. The facts in Saunders are very similar to those here. This Court is constrained to follow the holding of Saunders.
The ACLU also asserts that because the City provided a detailed response with a six page letter, two affidavits from Raymond Demichiei, the Deputy Director of the City's Office of Management and Homeland Security, and set off each type of record requested into a separate paragraph and addressed the relevant exemption for each record when the ACLU appealed the denial of its request to the OOR that the City should have provided the same detailed response when it denied the ACLU's request. This argument belies the fact that the City's denial was sufficient under Saunders.
The ACLU also contends that the C.P. Court's order would create an incentive for agencies to ignore obligations imposed by the Law because an agency would not have to make a good faith effort to determine if a requested record was public and whether the agency has possession of the record. Before this Court is the issue of whether the ACLU's appeal to the OOR met the requirements of the Law, and this Court holds that Saunders controls. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of June, 2015, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge