PA State Police, Aplt. v. Grove, M. , 161 A.3d 877 ( 2017 )

[J-93-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
PENNSYLVANIA STATE POLICE, : No. 25 MAP 2016
:
Appellant : Appeal from the Order of the
: Commonwealth Court dated July 7,
: 2015 at No. 1146 CD 2014 affirming in
v. : part, reversing in part and remanding in
: part the Final Determination of the
: Office of Open Records at No. AP 2014-
MICHELLE GROVE, : 0828 dated June 17, 2014.
:
Appellee : ARGUED: September 14, 2016
OPINION
JUSTICE DOUGHERTY DECIDED: June 20, 2017
We granted discretionary review to consider whether video components of motor
vehicle recordings (MVRs) created by appellant Pennsylvania State Police (PSP) are
exempt from disclosure to the public as criminal investigative records under the Right-
to-Know Law, 65 P.S. §67.101-67.3104 (RTKL) or the Criminal History Record
Information Act, 18 Pa.C.S. §§9101-9183 (CHRIA). We also consider whether these
recordings implicate provisions of the Wiretapping and Electronic Surveillance Act, 18
Pa.C.S. §§5701-5782 (Wiretap Act). The Commonwealth Court held MVRs generally
are public records subject to disclosure, and affirmed in part the decision of the Office of
Open Records (OOR) directing PSP to provide MVRs to appellee Michelle Grove
(Grove). The Commonwealth Court also reversed in part, remanding the matter to the
OOR with instructions for redaction of the audio portions of the MVRs before disclosure.
We now affirm in part and reverse in part.
I. Background
Section 301 of the RTKL provides Commonwealth agencies like PSP must
provide copies of all public records upon request. 65 P.S. §67.301. On March 24,
2014, Grove made a request to PSP pursuant to Section 301 for “a copy of the police
report, and any video/audio recordings taken by the officers” at the scene of a two-
vehicle accident in Potter Township, Centre County, Pennsylvania.1 Grove v. Pa. State
Police, 2014 WL 2801575, at *1 (Pa. Off. Open Rec., June 2014). The recordings at
issue are two MVRs that were generated when two PSP troopers, Trooper Vanorden
and Trooper Thomas, responded to the scene of the accident. Affidavit of William
Rozier at ¶¶ 10-11.
On May 1, 2014, PSP, by its Deputy Open Records Officer, Lissa Ferguson, sent
a letter response to Grove’s request. The response provided Grove with a Public
Information Release Report, which revealed one driver in the accident received a
citation for failing to yield the right-of-way when entering or crossing a roadway (75
Pa.C.S. §3324), and the other driver received a citation for failure to use seatbelt (75
Pa.C.S. §4581). Public Information Release Report; and Rozier Affidavit at ¶ 20.
PSP’s letter response also informed Grove her request for the MVRs was denied on the
1
The RTKL defines a “Requester” as “[a] person that is a legal resident of the United
States and requests a record pursuant to this act. The term includes an agency.” 65
P.S. §67.102. It is not clear from the record precisely why Grove sought the MVRs,
but, as discussed infra, it appears she was on the scene and had some interest in the
official description of the accident. Position Statement of Michelle Grove, dated May 30,
2014. In any event, the motivations of a Requester are immaterial under the RTKL. 65
P.S. § 67.301(b) (“A Commonwealth agency many not deny a requester access to a
public record due to the intended use of the public record by the requester unless
otherwise provided by law.”).
[J-93-2016] - 2
basis the recordings were exempt from any public disclosure as: (1) “criminal
investigative records” under Section 708(b)(16) of the RTKL,2 and “investigative
information” under Section 9106(c)(4) of CHRIA;3 and (2) records “pertaining to audio
recordings, telephone or radio transmissions received by dispatch personnel, including
911 recordings,” under Section 708(b)(18)(i) of the RTKL.4 PSP included a verification
2
Section 708(b)(16) of the RTKL provides exceptions to Section 301’s general mandate
that Commonwealth agencies provide public records to Requesters, in pertinent part as
follows:
(b) Exceptions.—Except as provided in subsections (c) [pertaining to
financial records] and (d) [pertaining to aggregated data], the following
are exempt from access by a requester under this act:
* * *
(16) A record of an agency relating to or resulting in a criminal
investigation, including:
(i) Complaints of potential criminal conduct other than a
private criminal complaint.
(ii) Investigative materials, notes, correspondence, videos
and reports.
65 P.S. §67.708(b)(16).
3
Section 9106(c)(4) of CHRIA provides, in pertinent part:
(c) Dissemination of protected information.--
(4) Investigative and treatment information shall not be
disseminated to any department, agency or individual unless the
department, agency or individual requesting the information is a
criminal justice agency which requests the information in
connection with its duties, and the request is based upon a name,
fingerprints, modus operandi, genetic typing, voice print or other
identifying characteristic.
18 Pa.C.S. §9106(c)(4).
4
Section 708(b)(18)(i) of the RTKL provides an exception to Section 301’s mandate that
an agency provide public records where the Requester seeks “Records or parts of
(continued…)
[J-93-2016] - 3
with its letter response, also executed by Lissa Ferguson (the Ferguson Verification).
The Ferguson Verification did not include a description of the MVRs or the nature or
purpose of the recordings. In addressing the request for release of the MVRs, the
Ferguson Verification concluded the MVRs fell under the exemption for “audio
recordings, telephone or radio transmissions received by emergency dispatch
personnel, including 911 recordings” in Section 708(b)(18)(i) of the RTKL. Ferguson
Verification at ¶ 6. The Ferguson Verification did not reference any other section of the
RTKL or CHRIA with respect to the MVRs.5
On May 24, 2014, Grove filed an appeal to the OOR from PSP’s letter response
denying the release of the MVRs. The OOR invited the parties to supplement the
record. On May 30, 2014, PSP provided an unsworn position statement from PSP’s
counsel, Jordan G. Spahr, Esquire, which incorporated the Ferguson Verification by
reference. The PSP alleged in its position statement the MVRs are criminal
investigative records, and thus exempt from disclosure under Section 708(b)(16) of the
RTKL. Grove, 2014 WL 2801575 at *1; see also PSP Position Statement at 1-2.6
(…continued)
records, except time response logs, pertaining to audio recordings, telephone or radio
transmissions received by emergency dispatch personnel, including 911 recordings.”
65 P.S. §67.708(b)(18)(i).
5
The Ferguson Verification stated the Crash Report — which is not at issue in this
matter — was exempt from disclosure under Section 708(b)(16) of the RTKL and
CHRIA, 18 Pa.C.S. §§9101-9183. Ferguson Verification at ¶ 4. However, the Ferguson
Verification did not reference these provisions with respect to disclosure of the MVRs.
Id. at ¶¶ 4-6.
6
Although the May 1, 2014 letter response to Grove’s records request relied upon
CHRIA as a basis to deny access to the MVRs, neither PSP’s position statement nor
(continued…)
[J-93-2016] - 4
Accordingly, PSP’s position statement and incorporated Ferguson Verification
collectively provided two bases for refusal to release the MVRs to Grove: (1) Section
708(b)(16) of the RTKL as criminal investigative records; and (2) Section 708 (b)(18)(i)
of the RTKL as a record received by emergency dispatch.
Grove also submitted additional materials in support of her request, including her
own position statement and two photographs of the accident scene, depicting the site
plus skid marks from the collision and the damage to one of the vehicles. Grove, 2014
WL 2801575 at *1. In her position statement, Grove noted she arrived at the scene of
the accident before the troopers and remained there until after the officers left. She
recounts her observations at the scene of the accident, including her own description of
the conversations that occurred between the officers and the drivers and bystanders.
Position Statement of Michelle Grove, dated May 30, 2014. Grove’s photographs show
the accident scene as a public street in front of residential homes. Id.
On June 17, 2014, the OOR issued its Final Determination, directing PSP to
provide complete copies of the MVRs to Grove. Grove, 2014 WL 2801575 at *3. The
OOR determined the Ferguson Verification contained conclusory statements denying
disclosure and was thus insufficient to show the recordings included transmissions
received by emergency dispatch personnel as required for exemption under Section
708(b)(18)(i) of the RTKL. Id., citing Office of the Governor v. Scolforo, 65 A.3d 1095,
1103 (Pa. Cmwlth 2013) (“[A] generic determination or conclusory statements are not
sufficient to justify the exemption of public records.”). The OOR further noted, to the
(…continued)
the Ferguson Verification submitted to the OOR referenced or relied upon CHRIA as a
basis for denial. PSP Position Statement & Ferguson Verification.
[J-93-2016] - 5
extent PSP argued in its unsworn position statement submitted by PSP’s counsel that
the MVRs are exempt as criminal investigative records under Section 708(b)(16) of the
RTKL, the unsworn statement was not a competent basis for exemption. Id., citing
Housing Authority of the City of Pittsburgh v. Van Osdol, 40 A.3d 209 (Pa. Cmwlth.
2012) (holding statements of counsel not competent evidence). The OOR concluded
PSP failed to submit any evidence the MVRs were investigative records and thus failed
to meet its burden they were exempt from disclosure under either Section 708(b)(16) or
Section 708(b)(18)(i) of the RTKL.
PSP appealed to the Commonwealth Court, arguing the MVRs qualify as
“criminal investigative records” and are therefore exempt from disclosure under Section
708(b)(16) of the RTKL, and also renewing its argument from the May 1, 2014 letter
response that the records are exempt as “investigative records” under Section
9106(c)(4) of CHRIA.7 PSP further argued, for the first time, disclosure of the MVRs
under the RTKL would violate the Wiretap Act. Additionally, in light of the OOR’s final
determination that PSP failed to meet its burden to prove the MVRs were exempt as
criminal investigative records under Section 708(b)(16) of the RTKL, PSP sought leave
to supplement the record with a sworn affidavit of its Open Records Officer, William
Rozier (the Rozier Affidavit), in further support of that argument.
The Commonwealth Court first considered PSP’s request to supplement the
record with the Rozier Affidavit. The court recognized it exercises plenary, de novo
7
In the Commonwealth Court appeal, PSP abandoned its argument the MVRs are
exempt as transmissions or recordings received by emergency personnel under Section
708(b)(18)(i) of the RTKL. Pennsylvania State Police v. Grove, 119 A.3d 1102, 1105
(Pa. Cmwlth. 2015).
[J-93-2016] - 6
review of OOR decisions involving Commonwealth agencies, such as PSP.
Pennsylvania State Police v. Grove, 119 A.3d, 1102, 1105 (Pa. Cmwlth. 2015), citing
Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013) (standard of review of
appeals from determinations made by appeals officers under the RTKL is de novo and
the scope of review is broad or plenary) (additional citations omitted). Considering its
de novo standard of review, the court noted “[w]here the record before OOR is
inadequate to determine whether requested material is exempt from disclosure, this
Court has discretion to permit a party to enlarge the record on appeal and to consider
additional evidence.” Id., citing Bowling, 75 A.3d at 476; Carey v. Pa. Dep’t of Corrs, 61
A.3d 367, 371 n.3, 377 (Pa. Cmwlth. 2013) (additional evidence may be taken to ensure
sufficient record for adequate appellate review). The court noted the record as
presented before the OOR did not contain any information regarding the MVRs,
including their content or the circumstances under which they are created, and the
PSP’s supplemental Rozier Affidavit did contain such details.
Considering whether supplementing the record was proper, the court first
acknowledged PSP was not permitted to ignore its burden before the OOR to present
evidence to support its position. Id. at 1106, citing Pennsylvania Tpk. Comm’n v.
Murphy, 25 A.3d 1294, 1297-98 (Pa. Cmwlth. 2011) (denying supplementation of record
on an appeal as an attempt to obtain “a proverbial second bite of the apple” where there
was no apparent reason for the failure to submit the additional affidavits to OOR).
However, the court acknowledged PSP had relied on prior decisions of the OOR in
responding to Grove’s records request, and those prior decisions held MVRs were
exempt from disclosure under Section 708(b)(16) of the RTKL as criminal investigative
[J-93-2016] - 7
records.8 Id. The court noted PSP’s reliance on these prior decisions was not
misplaced, as those cases had not been overruled at the time of PSP’s response. Id. at
1106. The court thus permitted PSP to supplement the record with the Rozier Affidavit
Id.
The Rozier Affidavit describes the specific content and information surrounding
the MVRs at issue as well as the policies and procedures surrounding MVRs generally.
With respect to the specific MVRs at issue in this matter, the Rozier Affidavit provided
the MVRs were created when Trooper Vanorden and Trooper Thomas arrived on the
scene of an accident that occurred on March 22, 2014, at 1:42 p.m., or “1342 hours.”
Rozier Affidavit at ¶¶ 9-11. The MVRs do not depict the accident itself. Id. at ¶ 19.
Trooper Vanorden’s MVR was recorded from his unmarked vehicle and contains video
only. Id. at ¶ 10. The MVR shows Trooper Vanorden speaking to the individuals
involved in the accident, examining the vehicle damage, directing one of the drivers to
move his vehicle to a safer area, and relaying information to Trooper Thomas upon his
arrival. Id. Trooper Thomas’s MVR was recorded from his marked vehicle, and
contains both video and audio recordings of his interviews with the two drivers, as well
as bystanders at the scene. Id. at ¶ 11. The Rozier Affidavit notes the investigation into
the accident was conducted by Trooper Thomas, and states the “investigative
information” on the MVR specifically includes Trooper Thomas’s conversations with the
8
See, e.g., Otto v. Pa. State Police, 2014 WL 97152 (Pa. Office of Open Rec., Jan. 3,
2014) (MVRs relate to criminal investigations and are exempt from disclosure under
Section 708(b)(16) of RTKL); Keller v. Pa. State Police, 2014 WL 1284524 (Pa. Office of
Open Rec, Mar. 13, 2014) (relying on Otto to hold MVRs are criminal investigative
records not subject to public disclosure).
[J-93-2016] - 8
operators involved and the bystanders, as he obtained their statements about how the
accident occurred. Id. at ¶¶ 9, 19.
The Rozier Affidavit also sets forth information about the use and procedures
surrounding MVRs generally. It provides MVRs are “typically activated when a trooper
activates his or her emergency lights or siren.” Rozier Affidavit at ¶ 14. The affidavit
also references a PSP internal regulation, known as Field Regulation 6-12 (FR 6-12),
which sets forth enumerated situations in which MVRs are to be used as follows:
Utilization: Members operating MVR-equipped vehicles shall
endeavor to record the following types of incidents:
(1) Traffic and criminal enforcement stops.
(2) In-progress Vehicle and Crime Code violations.
(3) Police pursuits.
(4) Field interviews, interrogations, and intoxication testing.
(5) Patrol vehicle travel and movements when emergency lights
and/or siren are activated.
(6) Fatal crash or major crime scenes, as necessary, to document
the scene.
(7) Traffic safety and sobriety checkpoints, at the discretion of the
checkpoint supervisor.
(8) Prisoner transports
(9) Searches of vehicles or persons.
(10) Any other incident the member deems appropriate while
acting in the performance of their official duties.
Id. at ¶¶ 15-16. The Rozier Affidavit further provides MVRs 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 used “in civil, criminal, quasi-criminal, forfeiture, administrative
enforcement or disciplinary proceedings.” Id. at ¶ 17.
[J-93-2016] - 9
The Commonwealth Court first addressed PSP’s argument the MVRs are
criminal investigative records exempt from disclosure under Section 708(b)(16) of the
RTKL and investigative records exempt under Section 9106(c)(4) of CHRIA because
they contain information about an accident which resulted in “summary criminal
offenses,” i.e., 75 Pa.C.S. §3324 (failure to yield the right-of-way when entering or
crossing roadway) and 75 Pa.C.S. §4581 (failure to use seatbelt). 119 A.3d at 1108.
The court noted information documenting the actions of Commonwealth agencies,
including PSP, is presumed to be publicly accessible under the RTKL, unless an
exemption applies. Grove, 119 A.3d at 1107, citing 65 P.S. §§67.102, 67.305;
Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc);
Carey, 61 A.3d at 371-72. The court acknowledged PSP relied on Section 708 of the
RTKL, which exempts public records from disclosure if they relate to or result in a
“criminal investigation, including . . . (ii) Investigative materials, notes, correspondence,
videos and reports.” 65 P.S. §67.708(b)(16). The court recognized the RTKL does not
define what constitutes “investigative” materials. Grove, 119 A.3d at 1108. The court
further acknowledged PSP relied on Section 9106(c)(4) of CHRIA for exemption of the
records, which provides generally that “[i]nvestigative and treatment information shall
not be disseminated” to any individual. Id., quoting 18 Pa.C.S. §9106(c)(4). The court
noted CHRIA defines “investigative information” as “information assembled as a result
of the performance of any inquiry, formal or informal, into a criminal incident or an
allegation of criminal wrongdoing and may include modus operandi information.” Id.
quoting 18 Pa.C.S. §9102.
[J-93-2016] - 10
The court recognized PSP had the burden to demonstrate by a preponderance of
evidence which of its records is exempt from disclosure, noting exemptions from
disclosure are to be narrowly construed. Id., citing McGill, 83 A.3d at 479, Carey, 61
A.3d at 373. The court further held “the mere fact that a record has some connection to
a criminal proceeding, does not automatically exempt it under Section 708(b)(16) of the
RTKL or CHRIA.” Id. at 1108, citing Coley v. Phila. Dist. Attorney’s Office, 77 A.3d 694,
697-98 (Pa. Cmwlth. 2013) (although witness statements were exempt as investigative
under RTKL and CHRIA, immunity agreement with witness was not exempt unless
shown to be investigative information). The court concluded that, to be exempt, records
must be created to report a criminal investigation, document evidence in a criminal
investigation, or set forth steps carried out in a criminal investigation. See id. at 1108
(collecting cases).
In considering the only evidence regarding the content of the MVRs — the Rozier
Affidavit — the Commonwealth Court determined “MVRs are created to document
troopers’ performance of their duties in responding to emergencies and in their
interactions with members of the public, not merely or primarily to document, assemble
or report on evidence of a crime or possible crime.” Id. Moreover, citing PSP’s FR 6-
12, the court noted instances in which MVRs do not contain investigative content
include: “directions to motorists in a traffic stop or at an accident scene, police pursuits,
and prisoner transports.” Id., citing Rozier Affidavit at ¶¶ 10, 16. The court thus
concluded “MVRs themselves are therefore not investigative material . . . exempt from
disclosure under Section 708(b)(16) of the RTKL or CHRIA.” Grove, 119 A.3d at 1108.
[J-93-2016] - 11
The court then closely examined the MVRs at issue in this case, commencing
with Trooper Vanorden’s MVR — which contains video-only. Trooper Vanorden’s MVR
depicts the trooper observing the scene, speaking to individuals, and directing the
vehicles. The court found this video depiction did not consist of investigative material,
and thus Trooper Vanorden’s MVR was not exempt from disclosure under the RTKL or
CHRIA. Id. at 1109. The court next examined Trooper Thomas’s MVR. The court held
MVRs can be considered to contain “investigative information” exempt from disclosure if
they contain “witness interviews, interrogations, intoxication testing and other
investigative work.” Id. at 1109. The court further found the audio portion of Trooper
Thomas’s MVR included witness interviews, and determined this audio aspect
contained investigative information exempt from disclosure under the RTKL and CHRIA.
Id. at 1109-1110, citing Rozier Affidavit at ¶¶ 11, 16. The court then acknowledged
Section 706 of the RTKL specifically provides a mechanism to redact exempt
information from an otherwise non-exempt record as follows:
If an agency determines that a public record . . . contains
information which is subject to access as well as information which
is not subject to access, the agency’s response shall grant access
to the information which is subject to access and deny access to
the information which is not subject to access. If the information
which is not subject to access is an integral part of the public record
. . . and cannot be separated, the agency shall redact from the
record the information which is not subject to access and the
response shall grant access to the information which is subject to
access. The agency many not deny access to the record if the
information which is not subject to access is able to be redacted.
Id. at 1109, quoting 65 P.S. §67.706. Accordingly, the court held PSP was entitled to
redact the audio portion of Trooper Thomas’s MVR containing investigative material, but
was not permitted to withhold the entire MVR. Id.
[J-93-2016] - 12
The Commonwealth Court also considered PSP’s argument any disclosure of
MVRs — redacted or unredacted —would violate the Wiretap Act.9 The court noted the
Wiretap Act does not apply to oral communications where the speaker has notice of the
recording. Grove, 119 A.3d 1110, citing 18 Pa.C.S §5702 (defining “[o]ral
communication” as “[A]ny oral communication uttered by a person possessing an
expectation that such communication is not subject to interception under circumstances
justifying such expectation”); Commonwealth v. Henlen 564 A.2d 905, 906-07 (Pa.
1989); Gunderman v. UCBR, 505 A.2d 1112, 1115 (Pa. Cmwlth. 1986). The court
further noted the troopers knew they were being recorded by their own MVR equipment,
and accordingly, the Wiretap Act does not prevent release of that portion of the audio
recording that captured the troopers’ communications with each other. Id. at 1110-11.
The court noted, however, there was no evidence to show whether the citizens to whom
Trooper Thomas spoke in that audio portion had notice they were being recorded, or
whether they had reasonable expectation of privacy in those conversations. The court
therefore remanded to the OOR to determine if the witnesses and drivers knew they
were being recorded, and further directed that PSP may redact from the MVR any audio
9
The court recognized the Wiretap Act issue was “belatedly raised” by PSP, as the
agency had never before relied on this basis to deny disclosure of the MVRs. 119 A.3d
at 1110. The court nevertheless decided the issue because, in its view, an agency
“cannot waive third parties’ privacy rights.” Id., citing Commonwealth, Dep’t of Envtl.
Prot. v. Cole, 52 A.3d 541, 551 (Pa. Cmwlth. 2012) (“an agency does not have the right
or authority to waive an individual’s interest in keeping his information confidential.”).
[J-93-2016] - 13
portions that included statements of private citizens who had no notice of the recording.
Id. at 1111.10
PSP filed a petition for allowance of appeal, and this Court granted review of the
following questions:11
(1) Is a video, created as a result of a Pennsylvania State Trooper
initiating a criminal investigation, exempt from disclosure under Section
708(b)(16) of the [RTKL]?
(2) Is a video, created as a result of a Pennsylvania State Trooper
initiating a criminal investigation, exempt from disclosure under the
[CHRIA]?
(3) Is a video depicting troopers at a crash scene in which citations
were issued “speaking with the operators of the vehicles,” “observing
the crash scene and the damage to the vehicles,” and “directing the
operator of the truck involved in the accident to move his vehicle to a
safer area,” considered investigative materials pursuant to Section
708(b)(16) of the [RTKL]?
(4) Is a video depicting troopers at a crash scene in which citations
were issued “speaking with the operators of the vehicles,” “observing
the crash scene and the damage to the vehicles,” and “directing the
operator of the truck involved in the accident to move his vehicle to a
safer area,” considered investigative information pursuant to the
[CHRIA]?
(5) Do provisions of the [Wiretap] Act apply to the audio component of
[MVRs]?
10
We recognize this portion of the Commonwealth Court’s order appears to be
redundant, as it had already concluded the audio portion of the conversations with the
drivers and witnesses on the scene must be redacted. The court nevertheless
proceeded to hold that redactions of communications by individuals who had no notice
of the recording would result in compliance with the Wiretap Act, and accordingly, the
redacted MVRs would not be exempt from disclosure. 119 A.3d at 1111.
11
Grove did not seek review of the Commonwealth Court’s ruling that PSP could redact
certain audio aspects of Trooper Thomas’s MVR. As a result, our discussion and
holding with respect to issues 1-4 regarding exemption under the RTKL and CHRIA
concerns only the video aspects of the MVRs.
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(6) Should this case be remanded for further factual findings to
determine whether modifying [an MVR], as required by the
Commonwealth Court, essentially creates a record in violation of
Section 705 of the [RTKL]?
Pennsylvania State Police v. Grove, 133 A.3d 292, 293 (Pa. 2016).12 All of the
questions presented are questions of law. As such our applicable standard of review is
de novo, and the scope of our review is plenary. See Bowling, 75 A.3d at 477 (standard
of review of OOR’s decision is de novo and scope of review plenary); see also Levy v.
Senate of Pa., 65 A.3d 361 (Pa. 2013) (applying de novo standard of review and
plenary scope of review in appeal from Senate Appeals Officer’s decision regarding
RTKL request).
II. Disclosure of MVRs under RTKL and CHRIA
A. Arguments
The first four issues presented by appellant PSP are intertwined and involve
whether MVRs generally, and the specific MVRs in this matter, are exempt from
disclosure under Section 708(b)(16) of the RTKL (agency records “relating to or
resulting in a criminal investigation, including complaints of potential criminal conduct
other than a private criminal complaint” and “investigative materials, notes,
correspondence, videos and reports” exempt) or Section 9106(c)(4) of CHRIA
(“investigative and treatment information” protected). PSP argues the Commonwealth
Court erroneously created a blanket rule that MVRs are public records, subject to
12
For ease of discussion, we consider the first four issues together, then proceed to the
sixth issue involving the RTKL, and finally decide the fifth question regarding the
Wiretap Act.
[J-93-2016] - 15
redaction, in violation of the plain language of both RTKL and CHRIA. PSP seeks a
contrary ruling that MVRs are exempt from disclosure pursuant to Section 708(b)(16) of
the RTKL. In support of this argument, PSP submits in order for the exemption to apply,
two elements must be met: (1) there must be a criminal investigation, and (2) the
requested record must be related to that criminal investigation. PSP claims both
elements were met with respect to the MVRs in this matter and the Commonwealth
Court improperly allowed disclosure of the video portions.
PSP first argues the troopers conducted an investigation at the scene to
determine if any violations of the Vehicle Code occurred. PSP notes Section 708
(b)(16) of the RTKL does not require the investigation actually result in the issuance of
citations or arrests in order to preclude disclosure, but rather, a record must be created,
i.e. an MVR, that is related to or results in a criminal investigation. Brief of Appellant at
16, citing 65 P.S. §67.708(b)(16). PSP notes the RTKL does not provide definitions for
the phrase “criminal investigation,” or what information “relates” to a criminal
investigation, and therefore cites the Commonwealth Court’s analysis in Department of
Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010), which involved the
disclosure of “noncriminal investigative materials,” pursuant to Section 708(b)(17) of the
RTKL.13 In defining what constitutes a “noncriminal investigation” as used in subsection
(b)(17) the Dep’t of Health court considered definitions of “investigation” in Blacks’ Law
Dictionary and Webster’s Third New International Dictionary. Relying on those
13
Section 708(b)(17) of the RTKL provides exceptions to Section 301’s mandate that an
agency provide public records where the “record of an agency relate[s] to a noncriminal
investigation, including: . . . (ii) investigative materials, notes, correspondence and
reports.” 65 P.S. §67.708(b)(17)(ii).
[J-93-2016] - 16
definitions, PSP submits “the term ‘investigation’ means a systematic or searching
inquiry, a detailed examination, or an official probe.” Brief of Appellant at 17, quoting
Dep’t of Health, 4 A.3d at 810-11. PSP argues that, because the statutory structure of
Section 708(b)(16), relating to criminal investigations, is similar to the structure of
Section 708(b)(17) relating to noncriminal investigations, the definition of “investigation”
articulated by the court in Dep’t of Health applies equally to Section 708(b)(16). PSP
further notes because Section 708(b)(16) expressly includes “videos” as documents
under the criminal investigation exemption, the General Assembly specifically intended
to protect MVRs. PSP concludes a “criminal” investigation occurred in this matter
because the troopers issued citations under Sections 3324 and 4581 of the Vehicle
Code based on the statements and accounts of the individuals at the accident scene.
Brief of Appellant at 18.
PSP next turns to the second element it claims must be met for an MVR to be
exempt from disclosure, i.e. whether the record is “relat[ed]” to the criminal
investigation.” Id. at 19, citing 65 P.S. §67.708(b)(16). PSP again notes the RTKL does
not define the term “relating” or “related” and relies on dictionary definitions of the term
“relate” as “to stand in some relation; to pertain; refer; to bring into association with or
connection with . . .” and the term “related” as “[s]tanding in relation; connected; allied;
akin.” Id., quoting Black’s Law Dictionary 1288 (6th ed. 1990). PSP thus concludes
both Trooper Vanorden’s and Trooper Thomas’s MVRs are related to a criminal
investigation because they were created to document the troopers’ investigation of the
accident. Id. PSP asserts it is tasked with “enforce[ing] the laws regulating the use of
the highways of this Commonwealth.” Id. at 18, quoting 71 P.S. §250(g). PSP thus
[J-93-2016] - 17
claims an investigation into whether a violation of the Vehicle Code occurred is an
official “criminal investigation,” and Trooper Thomas determined citations were
warranted based upon the statements obtained during that criminal investigation.
Accordingly, PSP argues the Commonwealth Court erred in its finding that “[t]he mere
fact that a record has some connection to a criminal proceeding does not automatically
exempt it under Section 708(b)(16) of the RTKL or CHRIA.” Id. at 20, quoting Grove,
119 A.3d at 1108 (emphasis supplied by PSP). PSP asserts the Commonwealth
Court’s conclusion the MVRs are not exempt from disclosure was erroneous because
there is no indication in the statute the exemption applies only when depicting an actual
“criminal proceeding.”14 Id. PSP argues the only analysis necessary under the statute
is whether the record is “related” to a criminal investigation. PSP concludes all that is
required for exemption under Section 708(b)(16) of the RTKL is a “connection” between
the video and the criminal investigation. Id. at 22-23.
PSP further argues MVRs are exempt from disclosure under the plain language
of Sections 9106(c)(4) and 9102 of CHRIA, which provide generally, that “[i]nvestigative
14
PSP strongly asserts the Commonwealth Court erred in changing the standard for
exemption set forth in the RTKL from relating to or resulting in a criminal investigation
to relating to a criminal proceeding. While the Commonwealth Court does at one point
state “[t]he mere fact that a record has some connection to a criminal proceeding does
not automatically exempt it under Section 708(b)(16) of the RTKL or CHRIA,” the
entirety of the court’s analysis beyond this cherry-picked quote clearly involves its
interpretation of a criminal investigation. Grove, 119 A.3d at 1108 (emphases added).
More specifically, the court examined other records held to be protected from the RTKL
and CHRIA as documents “created to report on a criminal investigation or set forth to
document evidence in a criminal investigation.” Id. (emphasis added). The court also
noted, “The MVR equipment is activated when an officer’s siren or emergency lights are
turned on, a non-investigative event.” Id. (emphasis added). We therefore reject
PSP’s argument the court altered or changed the standard for exemption under the
RTKL.
[J-93-2016] - 18
and treatment information shall not be disseminated,” and define “investigative
information” as information “assembled as a result of the performance of any inquiry,
formal or informal, into a criminal incident or an allegation of criminal wrongdoing and
may include modus operandi information.”15 PSP further claims the analysis of whether
material is protected under CHRIA requires only an examination of whether the
“information was assembled as the result of any inquiry . . . into a criminal incident or an
allegation of wrongdoing” and thus asserts MVRs are exempt from disclosure
regardless of whether they include any “investigative content.” PSP asserts the MVRs
at issue were directly connected to the initiation of a specific criminal investigation
because the responding troopers ultimately issued citations for traffic violations. Id. at
26.
Finally, PSP argues the Commonwealth Court created a per se rule that MVRs
are public records always subject to disclosure. Id. at 27, citing Grove, 119 A.3d at
1108. PSP acknowledges the court stated FR-6-12 “demonstrates that the MVRs are
created to document troopers’ performance of their duties in responding to emergencies
and in their interactions with members of the public, not merely or primarily to
document, assemble or report on evidence of a crime or possible crime.” Id. at 28-29,
quoting Grove, 119 A.3d at 1108. However, PSP argues the Commonwealth Court
failed to consider that, when a trooper is “responding to an emergenc[y]” or “interact[ing]
with members of the public,” an MVR is created “because the trooper is responding to
the scene of a potential criminal incident to investigate it or that [a] member of the
15
We note that in quoting the definition of “investigative information” under CHRIA
throughout its brief, PSP omits the second appearance of the word “criminal” modifying
the word “wrongdoing.”
[J-93-2016] - 19
public, with whom the trooper is interacting, is suspected of committing a criminal
violation.” Id. at 29, citing Rozier Affidavit. According to PSP, MVRs are thus always
“related” to a criminal investigation and exempt from disclosure under Section 708
(b)(16) of the RTKL and include exempt “investigative information” under Sections 9102
and 9106(a)(4) of CHRIA. PSP asserts we should therefore reverse the
Commonwealth Court’s decision allowing disclosure of the MVRs.16
Appellee Grove argues the Commonwealth Court correctly analyzed the nature
and purpose of MVRs when it stated they “are created to document troopers’
performance of their duties in responding to emergencies and in their interactions with
members of the public, not merely or primarily to document, assemble or report on
evidence of a crime or possible crime.” Brief of Appellee at 7, quoting Grove, 119 A.3d
at 1108. Addressing the content of the MVRs in this case, Grove submits a routine
response to a traffic accident does not rise to the level of a criminal investigation such
16
The Pennsylvania State Association of Township Supervisors (PSATS) and County
Commissioners Association of Pennsylvania (CCAP) filed an amicus curiae brief in
support of PSP. Like PSP, PSATS and CCAP argue the Commonwealth Court applied
an improper standard to Grove’s records request, which conflicts with the plain
language of the RTKL, and thus erroneously determined MVRs are public records
available for dissemination. PSATS and CCAP submit Section 708(b)(16) exempts
records from disclosure if they facially relate to a criminal investigation. Amici argue the
court incorrectly altered the “criminal investigation” exemption by holding the “mere fact
that a record has some connection to a criminal proceeding does not automatically
exempt it under” the RTKL or CHRIA. Amicus Brief of PSATS and CCAP at 7-8. Amici
claim the Commonwealth Court erred in holding MVRs must contain “investigative
material” in order to be exempt from disclosure because the plain language of the RTKL
exempts records from disclosure if they simply “relate to” a criminal investigation.
PSATS and CCAP also argue the disclosure of MVRs is prohibited under CHRIA
because the recordings were made in connection with PSP’s inquiry into a criminal
incident, i.e., a traffic accident involving motor vehicle code violations. Accordingly,
PSATS and CCAP assert because PSP troopers responded to an automobile accident
and issued citations, the event was a “criminal incident” and the MVRs contain
“investigative information” as defined in CHRIA. Id. at 11, citing 18 Pa.C.S. §9102.
[J-93-2016] - 20
that the resulting recordings are always exempted from disclosure under the RTKL.
Grove first notes Trooper Vanorden’s MVR contains video only of the trooper interacting
with the drivers and directing them where to park — the same scene any passerby
would observe — and thus does not contain protected investigative information. With
respect to Trooper Thomas’s MVR, Grove notes that while the MVR may contain some
information that could potentially be useful in a summary traffic prosecution; such
potential use does not alone raise the MVR to a protected record containing information
“related to a criminal investigation.” Grove asserts the MVRs operate automatically to
record what happens to be in view of the camera, without a specific purpose. Grove
submits the MVRs are thus distinguishable from other recordings such as an accident
reconstruction or witness interview, which are specifically made for purposes of a
criminal investigation and subsequent prosecution.
Grove further warns adoption of PSP’s position would exempt any and all MVRs
automatically created when a state trooper pulls over a motorist for a traffic violation and
such broad application would diminish the public’s ability to scrutinize its public officials
in their interactions with citizens. Grove notes the routine duties of state troopers are
not per se protected as investigative, and thus the Commonwealth Court correctly
determined the video portion of these MVRs must be released upon request. Brief of
Appellee at 10, citing McGill, 83 A.3d at 479 (exemptions from disclosure must be
narrowly construed under RTKL, which is meant to promote public access to
government information).
With respect to the application of CHRIA, Grove argues in order for a record to
be exempt from disclosure under CHRIA, it must be “assembled” as a result of an
[J-93-2016] - 21
investigation into criminal wrongdoing. Id. at 11, citing 18 Pa.C.S. §9102 (defining
“investigative information”). Grove submits MVRs document police activity whenever
the lights and sirens are activated, and PSP does not “assemble” investigative
information when creating them.
The OOR filed an amicus brief in support of appellee Grove, in which it argues
the RTKL and CHRIA do not provide a general prohibition on the release of MVRs, and
such records ordinarily should be publicly accessible. The OOR acknowledges that
while there may be instances in which a MVR will contain a record of a criminal
investigation — for example, when the MVR apparatus records the actual sale of illegal
drugs — the video portion of the MVRs in this case of a routine traffic accident did not
document a criminal investigation, and thus does not qualify as an investigative record
exempt from disclosure under either the RTKL or CHRIA. The OOR argues the MVRs
were created to document police officers’ dealings with the public, and the tangential
connection to an infraction or crime does not raise the recordings to the level of
protected investigative content.17
17
The Pennsylvania Newsmedia Association (PNA) and Reporters Committee for
Freedom of the Press (RCFP) also filed amicus briefs in support of Grove. PNA and
RCFP assert MVRs by their nature and intent are documentary, non-investigatory
recordings because the dashboard camera video apparatus is activated any time an
officer activates the police vehicle’s lights and sirens and the resulting video illustrates
police performing public duties and interactions with citizens. Amici reiterate the
information captured on MVRs is the same information a bystander would observe.
Amici further argue Section 708(b)(16) of the RTKL does not, and was not intended to,
shield such factual police records from disclosure. The common meaning of the term
“investigative” as used in Section 708(b)(16) of the RTKL is “to observe or study by
close examination and systematic inquiry; to make a systematic examination; to conduct
an official inquiry.” PNA and RCFP Amicus Brief at 8-9, citing Merriam-Webster’s
Collegiate Dictionary 659 (11th ed. 2004). Amici argue MVRs do not contain such a
high level of involvement or activity and are therefore not investigatory in nature. Amici
(continued…)
[J-93-2016] - 22
B. Discussion
Whether the RTKL or CHRIA preclude disclosure of MVRs recorded in response
to an accident presents a question of statutory construction, which is a pure question of
law over which our standard of review is de novo and our scope of review is plenary.
Lynnebrook & Woodbrook Assocs., L.P. v. Borough of Millersville, 963 A.2d 1261, 1262
n.2 (Pa. 2008). Under the Statutory Construction Act, our objective “is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. §1921(a).
i. The RTKL
The RTKL requires Commonwealth agencies to provide access to public records
upon request. 65 P.S. §67.301 (“A Commonwealth agency shall provide public records
(…continued)
assert MVRs contain purely factual information, and thus are non-exempt public records
under the RTKL.
Amici further argue CHRIA does not apply to protect MVRs from disclosure
because they are not “investigative information.” Amici argue Section 9106(c)(4) of
CHRIA does not cover every electronic record created by PSP. Id. at 18. Amici note
Section 9106(b)(3) of CHRIA limits access to investigative information “contained in files
of any criminal justice agency” and affirmatively requires PSP to collect investigative
information, separate from law enforcement files, and place them within the electronic
system of CHRIA. Id. at 19, citing 18 Pa.C.S. §9106(b)(3). Amici claim MVRs are not
subject to Section 9106(b)(3) of CHRIA, and do not per se meet the definition of
“investigative information” in Section 9102 of CHRIA. Thus, in order to give CHRIA its
full meaning, Amici note Section 9106(c)(4), which prohibits disclosure of “investigative
information,” must be read together with Section 9106(b)(3), which provides restrictions
for dissemination of investigative information contained in the files of a criminal justice
agency. Amici assert the protections of Section 9106(b)(3) are limited to “investigative
information” gathered from law enforcement and placed by PSP into an “automated or
electronic criminal justice information system.” PNA and RCFP Amicus Brief at 21.
Amici argue MVRs do not fall into this category because they are purely factual,
documentary records, unrelated to CHRIA information gathered and stored by PSP. Id.
at 22.
[J-93-2016] - 23
in accordance with this act.”). Section 102 of the RTKL defines a “public record” as: “A
record, including a financial record, of a Commonwealth or local agency that: (1) is not
exempt under section 708; (2) is not exempt from being disclosed under any other
Federal or State law or regulation or judicial order or decree; or (3) is not protected by a
privilege.” 65 P.S. §67.102. A “record” is further defined under the RTKL as:
Information, regardless of physical form or characteristics, that
documents a transaction or activity of an agency and that is
created, received or retained pursuant to law or in connection with
a transaction, business or activity of the agency. The term includes
a document, paper, letter, map, book, tape, photograph, film or
sound recording, information stored or maintained electronically
and a data-processed or image-processed document.
Id. There is no dispute that MVRs are public records of an agency as defined in the
RTKL and thus subject to public disclosure unless some exemption applies. We
consider whether MVRs generally, and the video portions of Trooper Vanorden and
Trooper Thomas’s MVRs in this matter specifically, qualify under an enumerated
exemption to disclosure described in Section 708(b)(16) of the RTKL regarding “criminal
investigative records.”
The RTKL provides, “[t]he 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 the preponderance of the evidence.” 65 P.S. §67.708(a)(1).
The RTKL specifically exempts from disclosure to a requester such as Grove any
agency record “relating to or resulting in a criminal investigation,” including
“[i]nvestigative materials, notes, correspondence, videos and reports.” 65 P.S.
§67.708(b)(16)(ii). We interpret these exemptions in a manner that comports with the
statute’s objective, “which is to empower citizens by affording them access to
[J-93-2016] - 24
information concerning the activities of their government.” SWB Yankees LLC v.
Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012).
Moreover, when the General Assembly replaced the Right to Know Act in 2009
with the current RTKL, it “significantly expanded public access to governmental records
. . . with the goal of promoting government transparency.” Levy 65 A.3d at 368
“Consistent 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),
citing McGill, 83 A.3d at 479.
Under the Statutory Construction Act, where the words or phrases at issue are
undefined by the statute itself, we must construe the words and phrases according to
their plain meaning and common usage. 1 Pa.C.S. §1903(a). The RTKL does not
define the central phrase “criminal investigation” as used in Section 708(16)(b)(ii). The
plain meaning of a “criminal investigation” clearly and obviously refers to an official
inquiry into a possible crime. See, e.g., https://www.merriam-
webster.com/dictionary/criminal (last visited Jan. 17, 2017) (“relating to crime or to the
prosecution of suspects in a crime”); https://www.merriam-
webster.com/dictionary/investigation (last visited Jan. 17, 2017) (“to investigate” is “to
observe or study by close examination and systematic inquiry,” “to make a systematic
examination;” or “to conduct an official inquiry”).
The Commonwealth Court has previously opined that material exempt from
disclosure as “criminal investigative information” under the RTKL includes: statements
compiled by district attorneys, forensic reports, and reports of police, including notes of
[J-93-2016] - 25
interviews with victims, suspects and witnesses assembled for the specific purpose of
investigation. See, e.g., Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth. 2014)
(criminal complaint file, forensic lab reports, polygraph reports and witness statements
rise to level of criminal investigative information exempt from disclosure); Coley, 77 A.3d
at 697 (witness statements compiled by District Attorney’s office are criminal
investigative records exempt from disclosure); Pennsylvania State Police v. Office of
Open Records, 5 A.3d 473, 478-79 (Pa. Cmwlth. 2010) (incident report prepared by
police with notes of interviews of alleged victims and perpetrators assembled during
investigation exempt as criminal investigative information); Mitchell v. Office of Open
Records, 997 A.2d 1262, 1265-66 (Pa. Cmwlth. 2010) (record pertaining to PSP’s
execution of search warrant was criminal investigation exempt from disclosure under
Section 708 of the RTKL). With regard to the MVRs requested by Grove in this case,
we must determine whether the video aspects generally depict a systematic inquiry or
examination into a potential crime.
In arguing such video recordings generally should be exempt from public
disclosure as “criminal investigative records,” PSP relies on its duty to “enforce the laws
regulating the use of the highways of this Commonwealth.” Brief of Appellant at 18,
quoting 71 P.S. §250(g). PSP concludes its inquiry into whether a violation of the
Vehicle Code occurred is an investigation, and any MVR capturing such investigation is
a “criminal investigative record” exempt from disclosure under Section 708 of the RTKL.
Id.
The Rozier Affidavit presented by PSP explains the use of MVRs is widespread,
noting “MVRs are typically activated when a trooper activates his or her emergency
[J-93-2016] - 26
lights or siren.” Rozier Affidavit at ¶ 14. There are situations when a trooper will
activate lights and sirens in non-investigative situations, including: “directions to
motorists in a traffic stop or at an accident scene, police pursuits and prisoner
transports.” Grove, 119 A.3d at 1108, citing the Rozier Affidavit at ¶¶ 10, 16.
Furthermore, in describing the reasons for retaining MVR files PSP acknowledges it
anticipates using its MVRs in various situations, including civil, criminal, quasi-criminal,
administrative enforcement or disciplinary proceedings. Rozier Affidavit at ¶ 17.
Moreover, the Rozier Affidavit specifically provides an MVR will be retained when a
person captured on the recording notifies PSP of her intent to use it in civil proceedings.
Id. This latter point supports a conclusion that MVRs do not always “relate to” or “result
in” criminal investigations such that they should be per se exempt from disclosure under
Section 708 of the RTKL. The Commonwealth Court therefore correctly determined the
MVRs are not exempt from disclosure as a general rule. See Grove, 119 A.3d at 1108
(“MVRs themselves are therefore not investigative material or videos, investigative
information, or records relating or resulting in a criminal investigation exempt from
disclosure under Section 708 of the RTKL. . . .”).
We recognize MVRs will likely also capture criminal investigations, such as “In-
progress Vehicle and Crimes Code violations;” “Field interviews, interrogations, and
intoxication testing;” and “Searches of vehicles and/or persons.” Rozier Affidavit at ¶
16. However, the RTKL specifically places the burden on PSP as the agency seeking
an exemption to demonstrate a record falls within such exemption. 65 P.S.
§67.708(a)(1). PSP’s position that MVRs are generally exempt and always contain
criminal investigative material essentially ignores that burden. Accordingly, we hold
[J-93-2016] - 27
whether an MVR contains criminal investigative material must be determined on a case-
by-case basis.
We now consider the more specific question of whether Trooper Vanorden’s
MVR and the video aspects of Trooper Thomas’s MVR relate to or result in a criminal
investigation and are thus protected from disclosure.18 It is clear from PSP’s own
evidence the “MVRs at issue do not depict the accident itself,” and instead show the
18
As we have noted, the issues upon which this Court granted review are limited to the
video aspects of the MVRs; although the Commonwealth Court found exempt material
in the audio aspects of Trooper Thomas’s MVR, and consequently redacted it, the
propriety of that finding and subsequent redaction has not been raised in this appeal.
Grove, 119 A.3d at 1109-10. Chief Justice Saylor concludes that Trooper Thomas’s
MVR, which was found to include investigative material in its audio aspect, is therefore
not a “public record” as defined in Section 102. See Concurring and Dissenting
Opinion, slip op. at 2-3 (Saylor, C.J.), citing 65 P.S. §67.102. Respectfully, this
conclusion is not supported by the plain language of the RTKL. Section 706 allowing
redaction specifically applies to “public” records which may contain some information
that is subject to disclosure and other information that is exempt from disclosure. See
65 P.S. § 67.706 (providing when public record contains information subject to access
and information not subject to access, the agency shall redact information not subject
to access and grant access to unredacted information) (emphasis added); see also
Department of Corrections v. St. Hilaire, 128 A.3d 859, 866 (Pa.Cmwlth. 2015) (fact that
public records contained some exempt medical information did not transform records
into non-public records; records can be redacted to exclude exempt information under
Section 706). Holding that exemption of even a minor portion of a public record would
re-categorize it into a non-public record in its entirety would eliminate the need to allow
redaction at all and render Section 706 meaningless with respect to public records. Our
interpretation endeavors to give effect to all the provisions of a statute, as we must.
See 1 Pa.C.S. § 1921(a); see also Holland v. Marcy, 883 A.2d 449, 455-56 (Pa. 2005)
(“In construing a statute, the courts must attempt to give meaning to every word in a
statute as we cannot assume that the legislature intended any words to be mere
surplusage.”). Moreover, our interpretation is not at odds with distinguishable
Commonwealth Court case law which has held some records found to be entirely
exempt under Section 708 do not constitute public records. See e.g., Saunders v. Dep’t
of Corrections, 48 A.3d 540 (Pa. Cmwlth. 2012) (requester sought records from the
Department of Corrections which were subject to five different exemptions, and as such,
were entirely exempt from disclosure under Section 708; records were not “public
records” due to the applicable exemptions). Id. at 543.
[J-93-2016] - 28
troopers observing the crash scene and engaging with the drivers and bystanders.
Rozier Affidavit at ¶¶ 10-11, 19. The video depiction presents nothing more than what a
bystander would observe. PSP describes the depiction as a criminal investigation
because it resulted in the issuance of citations for failure to wear a seatbelt and failure
to yield the right of way when entering or crossing a roadway. But PSP acknowledges
the citations were based upon the “statements and accounts of the individuals
involved in, or witness to the accident.” Brief of Appellant at 18 (emphasis added); see
also Rozier Affidavit at ¶¶ 9, 13, 19-20 (Trooper Thomas spoke to operators and
bystanders before issuing citations). It is thus clear Trooper Thomas acquired the
information necessary to issue the citations through his conversations with witnesses
and drivers, and the fact and nature of the Vehicle Code violations could not have been
garnered from the video-only aspect of the MVRs.
PSP simply does not explain how the video portion of the MVRs captured any
criminal investigation. In fact, PSP concedes the only potentially investigative
information consisted of the verbal statements captured on Trooper Thomas’s MVR,
which the Commonwealth Court expressly ordered should be redacted prior to release
of the MVRs. Accordingly, we find no error in the Commonwealth Court’s decision that
Trooper Vanorden’s MVR and the video aspects of Trooper Thomas’s MVR are not
exempt from release to Grove pursuant to Section 708(b)(16) of the RTKL, and affirm
that portion of the court’s order.
ii. CHRIA
We now consider whether disclosure of the MVRs, both generally and
specifically, is prohibited by CHRIA. CHRIA prevents the disclosure of “investigative
[J-93-2016] - 29
information” to the public. 18 Pa.C.S. §9106(c)(4). CHRIA defines “investigative
information” as: “Information assembled as a result of the performance of any inquiry,
formal or informal, into a criminal incident or an allegation of criminal wrongdoing and
may include modus operandi information.” 18 Pa.C.S. §9102. To determine if CHRIA
prevents disclosure, we first consider if MVRs always constitute “investigative
information” as defined by CHRIA.
PSP’s own evidence established MVRs are created when a light or siren is
activated, and capture many events, including routine traffic stops, patrol vehicle travel
and any other event a state trooper deems appropriate to record. Rozier Affidavit at ¶¶
14-16. In addition, the Rozier Affidavit clearly states MVRs are created in many
instances that plainly do not involve criminal activity, and may ultimately be used in civil
proceedings, administrative enforcement and disciplinary actions. Rozier Affidavit at ¶
17. Thus, MVRs do not, generally, constitute per se protected “investigative
information,” and therefore the question of whether information captured on a particular
MVR is to be excluded from public access under CHRIA must be determined on a case-
by case basis.19
19
Although Justice Mundy states she agrees with our conclusion the determination
must be made on a case by case basis, she nevertheless essentially concludes, as a
practical matter, that every record like the one at issue here includes information barring
disclosure under the RTKL and CHRIA. Concurring and Dissenting Opinion (Mundy, J.)
at 2, 4. Under this interpretation, Justice Mundy notes the video portions of the MVRs
“may well depict a witness’s demeanor, physical condition, and gestures, which give
context to the statements provided,” and thus “may depict ‘steps carried out in a
criminal investigation.’” Id. at 4-5 (emphasis added). This view improperly reduces the
PSP’s statutory burden under the RTKL and CHRIA, and also disregards the
Commonwealth Court’s determinations supported by the record, including its
determination the video and audio aspects in this particular case could be treated
separately. The PSP had the burden to demonstrate the video aspects of the MVRs
(continued…)
[J-93-2016] - 30
With respect to the specific MVRs at issue here, our inquiry is whether the video
portions contain investigative information under CHRIA such that they should be exempt
from disclosure. As we have determined with respect to PSP’s claims under the RTKL,
we hold the Commonwealth Court did not err in concluding the CHRIA does not
preclude disclosure either. The court correctly determined the only potential
“investigative information” on these MVRs is contained in the audio portion of witness
interviews on Trooper Thomas’s MVR. As this potentially investigative aspect of the
MVRs was ordered redacted, and neither PSP nor Grove challenged that order before
this Court, we affirm the Commonwealth Court’s decision on this issue.
III. Redacted MVR as “New Record”
We now consider whether the ordered redaction of the audio portion of Trooper
Thomas’s MVR constitutes the creation of a “new record” in violation of Section 705 of
the RTKL. Section 706 of the RTKL expressly requires an agency to redact information
(…continued)
should be exempt from public access. See 65 P.S. § 67.708(a)(1). The only evidence
supplied by the PSP in an attempt to meet this burden is the Rozier Affidavit, which
acknowledged the investigative material resided in the audio aspects only, i.e. in
recorded statements made to Trooper Thomas. Under these circumstances, we
conclude the Commonwealth Court’s holding that the video aspects do not contain
exempt investigative material is sound. See Grove, 119 A.3d at 1109 (noting the MVR
does not show “any measurements, collection of evidence, physical inspection or
analysis of what the accident scene showed”). It is also noteworthy that the Rozier
Affidavit describes the investigation not as criminal in nature, but as a “crash
investigation” and as an “investigation of [a] vehicle accident.” See Rozier Affidavit at
¶¶ 13, 19. Respectfully, the record presented by PSP in this matter does not support a
finding that any of the indicia identified by Justice Mundy as depicting a criminal
investigation actually were recorded on the video portion of the MVRs here, and we
reject the suggestion this statutory requirement is immaterial. Concurring and
Dissenting Opinion (Mundy, J.) at 5 n. 4.
[J-93-2016] - 31
not subject to public access from a public record. 65 P.S. §67.706 (“If an agency
determines that a public record, legislative record or financial record contains
information which is subject to access as well as information which is not subject to
access, the agency's response shall grant access to the information which is subject to
access and deny access to the information which is not subject to access. . . . The
agency may not deny access to the record if the information which is not subject to
access is able to be redacted.”). At the same time, Section 705 of the RTKL provides:
“an agency shall not be required to create a record which does not currently exist or to
compile, maintain, format or organize a record in a manner in which the agency does
not currently compile, maintain, format or organize the record.” 65 P.S. §67.705.
PSP first asserts the MVRs are not “public records” as described in Section 706,
and the Commonwealth Court thus erred in allowing their release after redaction. PSP
argues that, since the Commonwealth Court found the audio portion of the MVR
contained information related to a criminal investigation, it should have further
determined the entire MVR is exempt from disclosure. Brief of Appellant at 31. PSP
further claims that, in ordering the audio portions of the MVR be redacted, the
Commonwealth Court is improperly requiring it to create a “new record” in violation of
Section 705 of the RTKL. According to PSP, redacting an MVR is distinct from
redacting paper records. PSP argues redaction of the MVRs as directed here involves
cutting parts of the video or removing parts of the audio which does not simply alter an
existing record, but creates an entirely new record in violation of Section 705 of the
RTKL. PSP argues the extent of the modification ordered by the Commonwealth Court
[J-93-2016] - 32
is a factual inquiry requiring remand to determine if the modification violates Section 705
of the RTKL.20 Brief of Appellant at 33.
Grove responds by arguing the redaction of information from a record does not
create a new record under Section 705. Grove notes Section 706 specifically permits
redaction of records, and requires agencies to redact exempt information from records
that are otherwise subject to disclosure. Grove further argues the removal of some of
the audio portions of the MVR is no more a “creation” of a record than using a marker to
eliminate text from a paper document. Brief of Appellee at 16.
The OOR also argues Section 706 of the RTKL specifically authorizes that
agency records which include both public and exempt content can properly be redacted
for release of the publicly accessible content. OOR Amicus Brief at 13. OOR further
argues, as a matter of statutory construction, such a statutorily permissible redaction of
records under Section 706 can never result in the improper “creation” of a record under
Section 705, and if it did, Section 706 would be rendered meaningless. Id. at 15-16.
See also PNA and RCFP Amicus Brief at 12 (redaction of MVRs cannot result in
improper creation of new record under Section 705 of RTKL because such
interpretation would render meaningless Section 706 of RTKL, which specifically
permits such redaction; such an interpretation would also prevent access to certain
agency records based on format in which they were created).
20
In support of PSP, amici PSATS and CCAP argue the required redaction, which may
include blurring faces or altering voices, also poses an undue burden and expense for
agencies. Amici Brief at 13. Appellee Grove responds PSATS and CCAP overstate the
potential burden upon agencies in redacting MVRs and, in any event, such argument
should not be considered as it goes beyond the scope of the issues and record
presented. Brief of Appellee at 16-17.
[J-93-2016] - 33
As indicated by the parties’ arguments, this issue involves the application and
interplay of Sections 705 and 706 of the RTKL, which simultaneously prohibit the
creation of “new records” while expressly requiring the release of redacted versions of
agency records that contain both public and non-public information. In determining
whether a court may order the redaction of certain portions of PSP’s MVRs without
improperly resulting in the creation of a new record, we consider relevant principles of
statutory construction. It is central to our analysis that “[e]very statute shall be
construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. §1921(a). Further,
in ascertaining the intent of a statute, we presume “the General Assembly does not
intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.
§1922(1). We further presume “the General Assembly intends the entire statute to be
effective and certain.” 1 Pa.C.S. §1922(2). Construing Sections 705 and 706 of the
RTKL with these principles in mind, while also giving effect to both statutes as we must,
it is without question redaction of the MVRs under Section 706 to protect exempt
material does not result in the creation of a new record in violation of Section 705.
Adoption of PSP’s argument to the contrary would render Section 706 meaningless in
derogation of the express principles of the Statutory Construction Act, as it would result
in the prohibition of redaction of otherwise publicly accessible records, and render public
information exempt from disclosure.
Under the circumstances, it is plain that redaction of the audio aspects of an
existing MVR does not constitute the creation of a new record in violation of Section
705. PSP need not, for example, gather additional information and compile it in a new
way prior to redaction in order to comply with the Commonwealth Court’s directive. Cf.
[J-93-2016] - 34
McGill, 83 A.3d at 481 (Section 705 “precludes a requester from being able to
‘shanghai’ government employees to create a record when one does not exist and take
them away from carrying out their normal responsibilities.”).21 The redaction envisioned
here is analogous to the printed copy of an existing, original agency document which is
delivered to the requester with black markings blocking exempt material. We therefore
hold the Commonwealth Court’s order does not mandate PSP to create a new record in
violation of Section 705.22
21
In McGill, the requester sought from PSP a database of all officers accredited by
Municipal Police Officers’ Education and Training Commission (MPOETC). 83 A.3d at
478. While MPOETC maintained a database of all officers, the database did not include
the duties of the officers, including which officers were involved in undercover and
covert operations — information expressly exempt from disclosure under the RTKL.
See 65 P.S. §67.708(b)(6)(iii). The OOR ordered PSP to redact the information of
officers involved in undercover and covert operations, but PSP stated there was no
database already in existence that included information as to officers’ work
assignments, including undercover and covert assignments. 83 A.3d at 481. PSP
claimed in order to comply with the OOR’s redaction order, it would have to gather and
compare information from over 1,100 municipal agencies regarding over 22,000
officers, produce a new document listing all officers, and then redact those names not
subject to disclosure. The court found such extensive reworking and compilation of
information constituted the creation of a new record in violation of Section 705 of the
RTKL and thus reversed the OOR’s order as requiring the construction of a new and
larger database prior to redaction. Id. at 481-82.
22
PSP’s additional argument that remand is necessary to determine the extent of the
redaction, and if such redaction would violate Section 705 of the RTKL, is contrary to
the precise findings of the Commonwealth Court, which clearly identified the extent of
the required redaction as the audio portion of the witness interviews on Trooper
Thomas’s MVR. 119 A.3d at 1109. In addition, the Rozier Affidavit clearly described
the protected audio portion: “The MVR depicts Trooper Thomas interviewing the
operators of the vehicles. Trooper Thomas obtained the operator’s license, registration
and insurance information. Additionally, Trooper Thomas had an extensive
conversation with the operator of the truck concerning the status of his truck
classification, with assistance from Trooper Vanorden via the telephone.” Rozier
Affidavit at ¶11. Accordingly, the directive from the Commonwealth Court, in connection
with the evidence introduced by PSP, clearly identifies what information must be
(continued…)
[J-93-2016] - 35
IV. Wiretap Act23
We now turn to the question of whether provisions of the Wiretap Act apply to the
audio component of MVRs, such that “public disclosure of MVR footage under the
RTKL” is prohibited. Brief of Appellant at 38. The Wiretap Act prohibits the intentional
interception of wire, electronic or oral communications, and also prohibits the intentional
disclosure of such intercepted communications.24 PSP focuses its argument on its
(…continued)
redacted pursuant to Section 706 of the RTKL and remand on this issue is not
warranted.
23
As noted above, PSP raised this defense to disclosure for the first time in
Commonwealth Court, and that court determined the issue was not waived because an
agency “cannot waive third parties’ privacy rights.” 119 A.3d at 1110. The court
apparently focused on the privacy rights of the individuals — other than the troopers —
who were recorded on the MVRs, and concluded any failure by PSP to raise and protect
those rights in the first instance should not be dispositive of the issue. As the parties did
not challenge the Commonwealth Court’s ruling on waiver, and as we granted review of
the substantive question presented regarding the Wiretap Act, we do not express an
opinion on this particular point.
24
The Act provides a “person” is guilty of a felony in the third degree if he:
1) intentionally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept any wire, electronic
or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person
the contents of any wire, electronic or oral communication, or evidence
derived therefrom, knowing or having reason to know that the
information was obtained through the interception of a wire, electronic
or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire,
electronic or oral communication, or evidence derived therefrom,
knowing or having reason to know, that the information was obtained
through the interception of a wire, electronic or oral communication.
(continued…)
[J-93-2016] - 36
claim the MVRs contain “oral communications.” An “oral communication” is defined, in
pertinent part, as: “Any oral communication uttered by a person possessing an
expectation that such communication is not subject to interception under circumstances
justifying such expectation.” 18 Pa.C.S. §5702. The Wiretap Act also provides
exceptions to the prohibition of interception and disclosure of oral communications as
follows:
It shall not be unlawful and no prior court approval shall be required
under this chapter for:
* * *
(16) A law enforcement officer, whether or not certified under
section 5724 (relating to training), acting in the performance of his
official duties to intercept and record an oral communication
between individuals in accordance with the following:
(i) At the time of the interception, the oral communication does
not occur inside the residence of any of the individuals.
(ii) At the time of the interception, the law enforcement officer:
(A) is in uniform or otherwise clearly identifiable as a law
enforcement officer;
(B) is in close proximity to the individuals' oral
communication;
(C) is using an electronic, mechanical or other device which
has been approved under section 5706(b)(4) (relating to
exceptions to prohibitions in possession, sale, distribution,
manufacture or advertisement of electronic, mechanical or
other devices) to intercept the oral communication; and
(…continued)
18 Pa.C.S. §5703. The PSP is a “person” subject to the statute’s prohibitions. 18
Pa.C.S. §5702 (“Any employee, or agent of the United States or any state or political
subdivision thereof and any individual, partnership, association, joint stock company,
trust or corporation.”).
[J-93-2016] - 37
(D) informs, as soon as reasonably practicable, the
individuals identifiably present that he has intercepted and
recorded the oral communication.
18 Pa.C.S. §5704(16).
PSP argues the provisions of the Wiretap Act prohibit disclosure of the redacted
MVRs, regardless of whether the persons whose oral communications were recorded
had notice as required by the Wiretap Act. PSP claims even if the individuals captured
on the MVRs had notice of the recording, such notice does not act to vitiate their privacy
interests and allow release of the MVRs to the public under the RTKL. PSP submits
Section 5704(16) specifically applies to MVRs to prevent the disclosure of both the
audio and video aspects of MVRs to the public. Reply Brief of Appellant at 7-8. PSP
argues the Wiretap Act protects privacy by providing limited circumstances in which
recorded oral communications can be disclosed, and disclosure to the public by an
agency under the RTKL is not included in those limited circumstances. PSP relies on
Section 5749 of the Wiretap Act to argue an MVR, as a recording under Section
5704(16) of the Wiretap Act, can be disclosed only when it is: (1) an “investigative
disclosure;” (2) an “evidentiary disclosure” or (3) “used for training purposes upon the
consent of all participants,” and that none of these exceptions apply here. Brief of
Appellant at 36, citing 18 Pa.C.S. §§5717, 5721.1, 5749 (b)(1) and (2).25
25
Section 5749(b) of the Wiretap Act provides:
(b) Disclosure.--In addition to any disclosure authorized under sections
5717 [regarding Investigative disclosures] and 5721.1 [regarding
evidentiary disclosures], any recording maintained:
(continued…)
[J-93-2016] - 38
PSP further notes the RTKL prohibits disclosure of documents if such disclosure
will violate another federal or state law. Brief of Appellant at 36, citing 65 P.S.
§67.3101.1 (“If the provisions of this act regarding access to records conflict with any
other federal or state law, the provisions of this act shall not apply.”). PSP thus
concludes the Wiretap Act protects the privacy of those recorded by preventing
disclosure of recordings, including MVRs. PSP asserts the Commonwealth Court erred
in determining, in the event the witnesses and drivers captured on the MVR did not
have notice of the recording, their privacy interests will be adequately protected if their
oral communications are redacted before release to the requester.
In response, Grove argues the Wiretap Act does not prohibit the release of the
MVRs because the witnesses and drivers could not have had any reasonable
expectation of privacy as they were being questioned at the scene, and the MVRs
therefore do not contain any protected communications. She first notes the Wiretap Act
prevents the interception of “oral communications” as defined in Section 5702, which
expressly requires that individuals have a reasonable expectation of privacy before the
communications are subject to the Wiretap Act’s prohibitions. Grove argues the video
aspects of the MVRs are not subject to the Wiretap Act as the individuals depicted could
(…continued)
(1) Under subsection (a)(4) [for use in a civil action] shall be
disclosed pursuant to an order of court or as required by the
Pennsylvania Rules of Civil Procedure or the Pennsylvania Rules of
Evidence; and
(2) Under subsection (a)(5) [for training purposes] shall be
disclosed consistent with written consent obtained from the law
enforcement officer and all participants.
18 Pa.C.S. §5749(b).
[J-93-2016] - 39
not have had an expectation of privacy in a video-only recording of their activity in a
public place; the video aspects therefore do not contain “oral communications” within
the purview of the Wiretap Act. Brief of Appellee at 12, citing Agnew v. Dupler, 717
A.2d 519 (Pa. 1998) (police officers did not have reasonable expectation of privacy in
squadroom conversations, and statements made in squadroom did not meet definition
of “oral communications” under Wiretap Act). Further, Grove notes the troopers’
communications are not protected by the Wiretap Act as they had notice of the
recordings, and had no reasonable expectation of privacy while knowingly performing
their duties in public. Grove concludes the other individuals on the scene had no
expectation of privacy in their conversations with the troopers, as there is no
expectation the conversation would remain private — especially when the conversation
occurs on a public roadway.26 Brief of Appellee at 13-14.
26
In support of Grove, PNA and RCFP assert the Wiretap Act does not apply to MVRs
as a general class of records. Amici first argue (without citation) that video is not
covered by the Wiretap Act. They also reiterate Grove’s argument the audio portions of
the MVRs are not subject to the Wiretap Act because the individuals recorded had no
reasonable expectation of privacy. PNA and RCFP Brief at 22, citing 18 Pa.C.S. §5702;
Schwartz v. Dana Corp./Parish Div. 196 F.R.D. 275 (E.D. Pa. 2000) (in determining
what constitutes oral communication under Wiretap Act court must consider whether
speaker had an expectation of privacy). Moreover, Amici argue PSP’s reliance on
Section 5704(16) of the Wiretap Act is misplaced because the Wiretap Act, as a whole,
does not apply when there is no reasonable expectation of privacy in a conversation.
Amici finally claim that even if the Wiretap Act applies to some of the information on the
MVRs, the recordings cannot be withheld in their entirety because the RTKL specifically
permits non-public information to be redacted from a record and the remainder of the
record to be released. Id. at 25, citing 65 P.S. § 67.706 (agency has obligation to redact
non-public portions of records).
Amicus OOR similarly argues the plain language of the Wiretap Act only restricts
various uses of oral communications, the Commonwealth Court correctly held the
Wiretap Act does not prevent access to video portions of the MVRs, and properly
(continued…)
[J-93-2016] - 40
In considering the application of the Wiretap Act to the MVRs at issue here, we
note the Commonwealth Court focused on whether the individuals recorded “had notice
of the recording or any expectation that the interview was not subject to recording.” 119
A.3d at 1111. In doing so, the court combined two different provisions of the Wiretap
Act, i.e., the definition of protected “oral communications” which requires an
“expectation that such communication is not subject to interception under circumstances
justifying such expectation,” 18 Pa.C.S. §5702, and a statutory exception to the
prohibition of interception where an individual has notice her oral communications are
being recorded. 18 Pa.C.S. §5704(16)(ii)(D). The proper analysis, however, must
begin with a showing that “oral communications” are involved in the first instance; we
need not reach the second question regarding notice if the individuals recorded could
not have had a justifiable expectation the communications would not be intercepted.
See, e.g., Henlen, 564 A.2d 905 (no violation of Wiretap Act where state trooper could
not have had justifiable expectation conversation would not be intercepted when he
interrogated prison guard suspected of theft and prison guard secretly recorded
interrogation; recording was not oral communication subject to Wiretap Act);
Gunderman, 505 A.2d 1112 (no violation of Wiretap Act where claimant surreptitiously
recorded unemployment compensation hearing; no “legitimate expectation of privacy”
existed at such proceedings).
(…continued)
remanded the matter to the OOR for consideration of issues related to the audio
portions of the MVR. OOR Amicus Brief at 17-18.
[J-93-2016] - 41
In Agnew, this Court summarized the inquiry as follows: “whether the speaker
had a specific expectation that the contents of the discussion would not be intercepted
and whether that expectation was justifiable under the existing circumstances.” 717
A.2d at 523. The Court further noted, in “determining whether the expectation of non-
interception was justified under the circumstances of a particular case, it is necessary
for a reviewing court to examine the expectation in accordance with the principles
surrounding the right to privacy, for one cannot have an expectation of non-interception
absent a finding of a reasonable expectation of privacy.” Id. In this case, we must
decide whether: (1) the MVR contains an oral communication; (2) the individuals whose
communication is captured on the MVR had an expectation the communication would
not be intercepted; (3) the individuals’ expectation was justifiable under the
circumstances; and (4) there was an attempt to intercept or a successful interception of
the communication. See Agnew, 717 A.2d at 522 (claimant alleging Wiretap Act
violation must show: “(1) that he engaged in a communication; (2) that he possessed
an expectation that the communication would not be intercepted; (3) that his expectation
was justifiable under the circumstances; and (4) that the defendant attempted to, or
successfully intercepted the communication, or encouraged another to do so”).
Trooper Thomas’s MVR included communications between the troopers
themselves (who cannot possibly have had an expectation their conversations were not
subject to interception), and between the troopers and the witnesses and drivers. Our
review of the record demonstrates these other speakers also could not have had a
justifiable expectation their conversations would not be intercepted, and accordingly, the
MVRs do not contain any “oral communications” protected under the Wiretap Act. The
[J-93-2016] - 42
conversations occurred in broad daylight at the scene of an accident on a public
roadway, to which state police officers responded. The conversations took place within
earshot and easy view of bystanders or passersby. In fact, Grove’s position statement
submitted to the OOR includes her own observations and even her paraphrasing of the
conversations between the drivers and the troopers. Position Statement of Michelle
Grove, dated May 30, 2014 (discussing troopers’ actions and conversations at the
accident scene, including recounting Trooper Thomas’s statements to one of the
drivers, about what “he ‘thought’ happened and tried to convince [the driver] that she
was at fault.”). It is clear the individuals at the scene could have had no reasonable
expectation of privacy, or any justifiable expectation that their statements and images
were not being captured on MVRs, or by any number of cellphones for that matter.
Under the circumstances, we conclude disclosure of the MVRs pursuant to the RTKL
does not violate the Wiretap Act. Accordingly, we reverse that portion of the
Commonwealth Court’s order that suggested additional findings with respect to notice
are warranted on remand. We affirm the Commonwealth Court’s order in all other
respects.
Order affirmed in part and reversed in part. Matter remanded for further
proceedings consistent with this opinion.
Justices Baer, Todd, Donohue and Wecht join the opinion.
Justice Wecht files a concurring opinion in which Justice Todd joins.
Chief Justice Saylor files a concurring and dissenting opinion.
Justice Mundy files a concurring and dissenting opinion.
[J-93-2016] - 43