Port Authority of Allegheny County v. W. Towne ( 2017 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Port Authority of Allegheny                :
    County,                                    :
    Petitioner              :
    :
    v.                            :   No. 92 C.D. 2017
    :   SUBMITTED: June 9, 2017
    William Towne,                             :
    Respondent             :
    BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE JULIA K. HEARTHWAY, Judge1
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION BY
    SENIOR JUDGE LEADBETTER                                     FILED: September 12, 2017
    The Port Authority of Allegheny County (Authority) petitions for
    review of a final determination of the Office of Open Records (OOR) that granted
    the appeal of William Towne (Requester), acting pro se, from the Authority’s
    denial of his request for video recordings from cameras aboard an identified bus
    pursuant to Section 708(b)(17) of the Right-to-Know Law (RTKL) (noncriminal
    investigation exception to public disclosure of records).2 On appeal, we consider
    whether the OOR erred in determining that the recordings were not exempt from
    public disclosure and directing that the Authority provide them to Requester. We
    conclude that the recordings were exempt from disclosure and, therefore, reverse.
    In October 2016, Requester submitted an e-mail request to the
    Authority seeking: “All video recordings from all cameras aboard the bus running
    1
    This decision was reached before Judge Hearthway’s service with the Court ended on
    September 1, 2017.
    2
    Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(17).
    Route 67 which turned from Beeler onto Wilkins Avenue nearest to 10pm on the
    night of April 14, 2016, for that run of that route.” October 20, 2016, Request at 1;
    Reproduced Record (R.R.) at 14a. After invoking a thirty-day extension in which
    to respond,3 the Authority denied the request pursuant to the noncriminal
    investigation exception. In support, the Authority stated:
    Inasmuch as [the] Authority has downloaded and
    maintained bus surveillance video from the incident at
    issue [two vehicles collided when one sought to avoid a
    bus collision], [the] Authority did so specifically because
    its Claims Department engaged in a noncriminal
    investigation arising from the incident as said incident
    and video may pertain to and depict the conduct of
    involved parties and civil proceedings that are thereby
    implicated. It should also be noted that the Requester
    inspected the bus surveillance video on June 24, 2016, in
    the offices of [the] Authority and is invited to inspect the
    video again at [its] offices. . . .
    December 1, 2016, Response at 5; R.R. at 36a.
    Requester appealed, inter alia, averring that a portion of the
    recordings from one of the cameras was very limited, that he was not permitted to
    hear audio components from any of the recordings, and that he was advised of
    secret records which the Authority allegedly excluded. Further, observing that the
    Authority regularly collected video recordings for each bus from multiple cameras,
    he maintained that the recordings were not the result of any investigation.
    December 13, 2016, Appeal; R.R. at 9-10a.
    In response, the Authority submitted a position statement describing
    the context of the request4 and three affidavits. By way of background, Requester
    3
    See Section 902(b) of the RTKL, 65 P.S. § 67.902(b).
    4
    It is well established that a requester’s interest for seeking disclosure of a public record is
    irrelevant. E.g., Current Status, Inc. v. Hykel, 
    778 A.2d 781
    , 784 n.3 (Pa. Cmwlth. 2001). To
    (Footnote continued on next page…)
    2
    filed a property damage claim with the Authority claiming that he collided with a
    vehicle on the date in question in order to avoid a collision with a bus, a property
    damage lawsuit against the Authority before a magisterial district judge, and a
    complaint in common pleas court claiming that the Authority and its bus driver
    violated the Vehicle Code.5       Ultimately, Requester settled his claim with the
    Authority and discontinued his appeal in common pleas court. December 23,
    2016, Submission from Authority at 1-4; R.R. at 39-42a.
    The Authority’s three affidavits were from Mr. Miller, Chief
    Operating Officer; Mr. Stoker, Director of Claims; and Mr. Monks, Associate
    Counsel. Mr. Miller explained that each bus is equipped with multiple cameras, a
    digital video recorder, and a hard drive that stores the recorded video surveillance
    footage. Depending on the size of the bus’s respective hard drive, the existing
    footage is overwritten with new footage anywhere from fourteen to thirty days
    after the recording date. Mr. Miller stated that the footage is not regularly or
    periodically downloaded, viewed, or saved for general quality control or for
    performance operations purposes. It is only downloaded and reviewed when an
    incident, claim, or accident is reported, thereby triggering an investigation.
    Further, he indicated that the Authority limits access to the recordings to recipients
    such as Authority police and the claims department for purposes of investigating
    accidents and complaints. Finally, he indicated that access requires the approval of
    the Chief Operating Officer. January 12, 2017, OOR Final Determination at 7-8;
    R.R. at 127-28a.
    _____________________________
    (continued…)
    the extent that the background of the present request relates to the applicability of the
    noncriminal investigation exception and does not prejudice Requester, we have included it.
    5
    75 Pa. C.S. §§ 101 - 9805.
    3
    Mr. Stoker described how the recordings requested in the present case
    were used in the Authority’s investigation of Requester’s property damage claim.
    The footage from the cameras on the subject bus was downloaded to an outside
    server for the claims department’s review. Reiterating that the footage would not
    have been requested or downloaded in the absence of an investigation, which was
    true for all situations, Mr. Stoker stated that the adjuster’s investigation included a
    site visit to the intersection at issue to ascertain the sequencing of the traffic lights,
    a review of the bus surveillance video, a review of the bus operator’s report, and a
    review of Requester’s submissions. Although the adjuster found the recordings to
    be inconclusive as to whether there was contact between the bus and Requester’s
    vehicle, Mr. Stoker acknowledged that the recordings were reviewed as part of the
    claims investigation. 
    Id. Mr. Monks
    described the processing of administrative claims against
    the Authority.    He stated that, once Requester’s property damage claim was
    opened, “a representative from the Claims Department requested that the bus
    surveillance video be located, preserved and provided to the Claims Department
    for review as part of its investigation of [Requester’s] claim.” December 23, 2016,
    Submission from Authority, Affidavit of Mr. Monks at 2; R.R. at 46a. Mr. Monks
    also described viewing the recordings with Requester at the Authority’s offices,
    stating that access to all seven camera angles was provided and that no additional
    secret footage existed. Otherwise, Mr. Monks described the ensuing litigation and
    the outcome of that litigation. 
    Id. at 3-5;
    R.R. at 47-49a.
    After reviewing the Authority’s response, Requester contested some
    of the factual averments, including the number of videos made available, and a
    description of what they depicted. Subsequently, the OOR Appeals Officer sent an
    e-mail advising the parties of the potential applicability of what was then a pending
    appeal in the Supreme Court involving motor vehicle recordings (MVRs) created
    4
    by the Pennsylvania State Police (PSP) and the criminal investigation exception
    found in Section 708(b)(16) of the RTKL: Pennsylvania State Police v. Grove,
    
    119 A.3d 1102
    (Pa. Cmwlth. 2015), aff’d in part, rev’d in part, and remanded, 
    161 A.3d 877
    (Pa. 2017). Having failed to secure Requester’s consent to a stay of a
    final determination from OOR pending a decision in Grove,6 the OOR granted his
    appeal thereby requiring the Authority to provide the requested recordings. The
    Port Authority’s petition for review to this Court followed.
    As a Commonwealth agency, the Authority is required to provide a
    requester with access to a public record pursuant to Section 301 of the RTKL, 65
    P.S. § 67.301.7 There is a presumption of openness as to any information of a
    Commonwealth agency that qualifies as a public record. Section 305(a) of the
    RTKL, 65 P.S. § 67.305(a).             “The burden of proving that a record of a
    Commonwealth agency . . . is exempt from public access shall be on the
    Commonwealth agency . . . receiving a request by a preponderance of the
    evidence.”      Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1).                       A
    preponderance of the evidence is that proof that would lead a 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
    , 438-39 (Pa. Cmwlth. 2011). In
    addition, “[c]onsistent with the RTKL’s goal of promoting government
    transparency and its remedial nature, the exceptions to disclosure of public records
    must be narrowly construed.” Office of Governor v. Davis, 
    122 A.3d 1185
    , 1191
    (Pa. Cmwlth. 2015).
    6
    See Section 1101(b)(1) and (2) of the RTKL, 65 P.S. § 67.1101(b)(1) and (2) (requiring the
    OOR Appeals Officer to issue a final determination within thirty days unless the requester
    consents to an extension of time).
    7
    “Commonwealth agency” is defined in Section 102 of the RTKL, 65 P.S. § 67.102.
    5
    In pertinent part, the exception at issue exempts from public
    disclosure:     “A record of an agency relating to a noncriminal investigation,
    including: . . . [i]nvestigative materials, notes, correspondence and reports.”
    Section 708(b)(17)(ii) of the RTKL (emphasis added).                      In the absence of
    definitions in the RTKL for either “noncriminal” or “investigation,” we have
    concluded that “noncriminal” applies to investigations other than those which are
    criminal in nature and that “investigation” means “a systematic or searching
    inquiry, a detailed examination, or an official probe.” Dep’t of Health v. Office of
    Open Records, 
    4 A.3d 803
    , 810-811 (Pa. Cmwlth. 2010).                            The inquiry,
    examination, or probe must be “conducted as part of the agency’s official duties.”
    
    Id. at 814.
    See also Dep’t of Pub. Welfare v. Chawaga, 
    91 A.3d 257
    , 259 (Pa.
    Cmwlth. 2014) (holding that, an official probe must be conducted pursuant to an
    agency’s legislatively granted fact-finding and investigative powers).
    In the present case, the OOR determined that the Authority
    investigated the factual allegations of Requester’s claim pursuant to its right and
    power “[t]o do all acts and things necessary for the promotion of its business, and
    the general welfare of the authority to carry out the powers granted to it by this act
    or any other acts” and “[t]o self insure or otherwise provide for insurance of any
    property or operations of the authority against any risks or hazards.” Sections
    3(b)(15) and (22) of the Second Class County Port Authority Act.8 Although the
    OOR concluded that the Authority established that investigating self-insurance
    claims related to its legislatively-granted authority, it determined that the
    recordings were not related to or the result of a noncriminal investigation. In
    support, it reasoned as follows:
    8
    Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. §§ 553(b)(15) and (22).
    6
    Because the bus videos are created prior to and
    independent of any investigation, they cannot be said to
    exist “merely or primarily” for investigative purposes and
    thus cannot be said to “relate” to a noncriminal
    investigation. In this regard, video records are no
    different than any other records that become part of an
    investigation. For example, an agency’s invoices and
    receipts are not exempt from disclosure under the RTKL
    because an investigation is being conducted into how an
    agency uses government funds. Further, there is no
    evidence that the bus videos include any inherently
    investigative content such as “witness interviews,
    interrogations, intoxication testing and other investigative
    work.” See Grove, 
    119 A.3d 1102
    [(Pa. Cmwlth. 2015).]
    January 12, 2017, OOR Final Determination at 8-9; R.R. at 129-30a (footnote
    omitted). We reject the OOR’s reasoning.
    As the OOR concluded, the Authority’s noncriminal investigation of a
    property damage claim submitted to its claims department was within its
    legislatively-granted powers pertaining to its status as a self-insurer. However, the
    OOR erred in determining that the recordings automatically could not exist
    “merely or primarily” for investigative purposes and “relate” to a noncriminal
    investigation by virtue of the fact that they were created before an investigation
    and independent thereof. The Authority’s affidavits bely this conclusion. As Mr.
    Miller stated, the footage is not regularly or periodically downloaded, viewed, or
    saved for general quality control or for performance operations purposes, but only
    downloaded and reviewed when an incident, claim, or accident is reported, thereby
    triggering an investigation. As Mr. Monks indicated, after a property damage
    claim is opened, a claims department representative requests that bus surveillance
    video be located, preserved and provided to it for review as part of its
    investigation. Accordingly, records created before investigations and accessed
    only when necessary can constitute investigative records, especially when the
    7
    agency asserts that their only purpose is for use in investigations. We turn to
    Grove for additional support.
    In Grove, the MVRs at issue were from two PSP troopers who arrived
    on the scene of an accident. Trooper Vanorden’s MVR was recorded from his
    vehicle and contained video only, showing him speaking to individuals involved in
    the accident, examining vehicle damage, directing one of the drivers to move his
    vehicle to a safer area, and relaying information to Trooper Thomas upon his
    arrival. Trooper Thomas’s MVR contained both video and audio recordings of his
    interviews with the two drivers, as well as bystanders.           The investigative
    information on Trooper Thomas’s MVR included his conversations with the
    operators involved and the bystanders in an attempt to ascertain how the accident
    occurred. The PSP conceded that the only potential investigative information
    consisted of the verbal statements on Trooper Thomas’s MVR, which this Court
    expressly ordered should be redacted before release of the MVR.
    On appeal, the Supreme Court held that we correctly determined that
    MVRs were not exempt from disclosure as a general rule and that whether they
    contained criminal investigative material had to be determined on a case-by-case
    basis. 
    Grove, 161 A.3d at 894
    . To that end, the Court referenced an affidavit
    providing that an MVR will be retained when a person captured on the recording
    notifies PSP of his or her intent to use it in civil proceedings, which supports a
    conclusion that the MVRs do not always “relate to” or “result in” criminal
    investigations such that they should lead to a per se exemption under Section
    708(b)(16) of the RTKL. 
    Id. at 893.
    Accordingly, emphasizing the PSP’s burden
    as the agency seeking an exemption to demonstrate that a record falls within such
    an exemption, the Court rejected the PSP’s position that MVRs are generally
    exempt and always contain criminal investigative material. 
    Id. at 894.
    8
    Moreover, especially in light of the fact that the PSP did not explain
    how the video portion of the recordings captured any criminal investigation, the
    Court found no error in our conclusion that Trooper Vanorden’s MVR and the
    video aspects of Trooper Thomas’s MVR were not exempt from release pursuant
    to the criminal investigation exemption. In so determining, the Court noted that it
    was clear that Trooper Thomas acquired the requisite information to issue citations
    via his conversations with witnesses and drivers. In other words, the fact and the
    nature of the Vehicle Code violations could not have been gathered from the video-
    only aspect of the MVRs. 
    Id. at 895.
    Accordingly, the Court affirmed that portion
    of our decision determining that “Trooper Vanorden’s MVR and the video aspects
    of Trooper Thomas’s MVR [were] not exempt from release to Grove pursuant to
    Section 708(b)(16). . . .” 
    Id. Turning specifically
    to the applicability of Grove to the present case,
    we note that, similar to the recordings herein at issue, the MVRs in Grove “are
    retained and destroyed by PSP on a normal schedule, but will not be destroyed
    when there is an anticipation the records are going to [be] used ‘in civil, criminal,
    quasi-criminal,    forfeiture,   administrative   enforcement      or   disciplinary
    proceedings.’” 
    Id. at 884.
    As the Court determined, the portion of the MVR with
    an investigative record was exempt from disclosure under the relevant exemption.
    Consistent with Grove, the exempt status of the recordings at issue is not solely
    determined by the fact that they are created before an investigation and
    downloaded and reviewed only after an incident, claim or accident is reported
    thereby triggering an investigation. Accordingly, we reject the OOR’s rationale
    that, because the recordings were created before and independent of any
    investigation, “they cannot be said to exist ‘merely or primarily’ for investigative
    purposes and thus cannot be said to ‘relate’ to a noncriminal investigation.”
    January 12, 2017, OOR Final Determination at 8-9; R.R. at 129-30a. If the OOR’s
    9
    somewhat circular reasoning was correct, then portions of the MVRs in Grove
    never could have constituted investigative records due to the PSP’s recording and
    retention practice.
    Moreover, a dissimilarity between the recordings in Grove and the
    ones at issue also supports our determination. Specifically, unlike the MVRs in
    Grove, which an affidavit indicated were also used to document troopers’
    performance of their duties and interactions with members of the public,9 the
    Authority’s affidavits indicated that the sole purpose of the recordings was for use
    in investigations.       This brings us to the somewhat intertwined issue of the
    relatedness between the noncriminal investigation and the Authority’s recordings.
    In Grove, the Court concluded that the PSP failed to explain how the
    video portion of the MVRs captured any criminal investigation. In contrast, the
    Authority in the present case submitted affidavits as to how it investigated
    Requester’s claim and the circumstances under which it downloaded and reviewed
    its recordings when undertaking a noncriminal investigation of a claim. As noted,
    Mr. Stoker stated that the Authority’s claims adjuster reviewed the recordings as
    part of its investigation. Even though Mr. Stoker indicated that the adjuster’s
    review of the recordings was inconclusive as to whether there was contact between
    the bus and Requester’s vehicle, the adjuster nonetheless reviewed them as part of
    the noncriminal investigation into Requester’s claim against the Authority. The
    plain language of the noncriminal investigation exemption is also instructive.
    As Section 708(b)(17)(ii) of the RTKL provides, a record is exempt
    when it relates to a noncriminal investigation and includes “investigative
    materials.” The noncriminal investigation at issue (1) commenced when Requester
    filed a property damage claim with the Authority involving one of its buses; (2)
    9
    
    Grove, 161 A.3d at 885
    .
    10
    was conducted pursuant to the Authority’s self-insurance right and power; and (3)
    was tantamount to a systematic or searching inquiry and/or a detailed examination.
    Dep’t of 
    Health, 4 A.3d at 810-811
    (holding that an “investigation” means “a
    systematic or searching inquiry, a detailed examination, or an official probe”).
    Accordingly, the recordings, which the adjuster reviewed in the course of
    investigating Requester’s property damage claim, were related to and, indeed, part
    of the noncriminal investigation such that they constituted investigative materials.
    See Fennell v. Pa. Game Comm’n, 
    149 A.3d 101
    , 105 (Pa. Cmwlth. 2016) (holding
    that the requested materials, a copy of a report or anything put on record regarding
    the Commission’s investigation into a tree stand that was allegedly too close to a
    house, fell within noncriminal investigation exemption). The fact that the adjuster
    found the recordings to be inconclusive as to whether its bus collided with
    Requester’s vehicle is irrelevant in that they just as easily could have been
    conclusive in that regard. The salient point is that the recordings were sufficiently
    related to the noncriminal investigation such that they constituted investigative
    materials under the applicable exemption.
    Accordingly, we reverse.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Senior Judge
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Port Authority of Allegheny           :
    County,                               :
    Petitioner         :
    :
    v.                        :   No. 92 C.D. 2017
    :
    William Towne,                        :
    Respondent         :
    ORDER
    AND NOW, this 12th day of September, 2017, the order of the Office
    of Open Records is hereby REVERSED.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Senior Judge
    

Document Info

Docket Number: 92 C.D. 2017

Judges: Leadbetter, Senior Judge

Filed Date: 9/12/2017

Precedential Status: Precedential

Modified Date: 9/12/2017