California University of PA v. B. Schackner and Pittsburgh Post-Gazette

168 A.3d 413, 2017 WL 3595651, 2017 Pa. Commw. LEXIS 617
CourtCommonwealth Court of Pennsylvania
DecidedAugust 22, 2017
DocketCalifornia University of PA v. B. Schackner and Pittsburgh Post-Gazette - 104 C.D. 2017
StatusPublished
Cited by9 cases

This text of 168 A.3d 413 (California University of PA v. B. Schackner and Pittsburgh Post-Gazette) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
California University of PA v. B. Schackner and Pittsburgh Post-Gazette, 168 A.3d 413, 2017 WL 3595651, 2017 Pa. Commw. LEXIS 617 (Pa. Ct. App. 2017).

Opinions

OPINION BY

JUDGE HEARTHWAY

California University of Pennsylvania (University) petitions for review of that part of the January 3, 2017 final determination of the Office of Open Records (OOR), that pursuant to the Right-to-Know Law (RTKL),1 found recoverable certain records relating to the University’s investigation into the structural failure of an on-campus parking garage. We affirm in part and vacate and remand in part.

On September 14 and 19, 2016, Bill Schackner, a reporter for the Pittsburgh Post-Gazette (Requester), requested copies from the University of all correspondence from August 24, 2016 through September 19, 2016, relating to the Vulcan Parking Garage that was sent or received by "Cal U Parking and Transportation Office director Chris Johnston; Vice President for Administration and Finance Robert Thorn; Cal U President Geraldine Jones, Council of Trustees Chairman Larry Maggi and Associate Vice President for Communications and Public Relations Christine Kindl[;]” “Michael Kanalis, interim director of facilities management; Ed McSheffery, Chief of Police/Director of Public Safety and University Police; Michael Peplinski, Director, Facilities Management; David Wyne, Assistant Director Planning and Construction/Project Manager; Jeanne Singer, Work-Order Clerk; [and] Lorie Stewart, Administrative Assistant.” (OOR Requests, 9/14/16 and 9/19/16.)

On November 10, 2016, the University responded partially denying Requester’s requests. The University withheld correspondence relating to its investigation into the causes of the structure failure, its internal, predecisional deliberations, and its draft documents that related to web content and statements. The University provided Requester with other responsive items. Requester appealed to the OOR.

The University submitted a position statement to the OOR indicating that it released additional records to Requester, which it attached to its submission. The University also submitted a privilege log (Log) that identified 150 items it continued to withhold as exempt from disclosure pursuant to sections 708(b)(10)2 and 708(b)(17)3 of the RTKL and pursuant to [417]*417its attorney-client privilege.4 In support of the exemptions, the University submitted an affirmation made under penalty of perjury from Robert Thorn, the University’s Open Records Officer and Vice President for Administration and Finance (Thorn Affirmation).5

On January 3, 2017, the OOR issued its final determination. The OOR determined that all responsive records that the University claimed were exempt under the noncriminal investigation exception to the RTKL, 65 P.S. § 67.708(b)(17), are not exempt because the University did:

not cite to any legal authority demonstrating that it possesses] legislatively granted fact-finding and investigative powers in this matter. Instead, the University provided facts as to the steps it took after the structural failure in the parking garage. This, alone, does not establish that the University has the authority to conduct noncriminal investigations as contemplated by Section 708(b)(17) [of] the RTKL.

(OOR Determination, at 6-7.)

Next, the OOR determined that of the 23 responsive records that the University claimed were exempt under the predeci-sional deliberations exception to the RTKL, 65 P.S. § 67.708(b)(10)(i)(A), only eleven were exempt, record numbers 134, 135, 146-154. The remaining 12 were not exempt pursuant to section 708(b)(10)(i)(A) of the RTKL.

Finally, the OOR determined that the 9 responsive records6 that the University claimed as exempt under the attorney-client privilege were not exempt because the University’s Log and the Thorn Affirmation were conclusory and did not provide enough detail to establish the privilege.

The OOR ordered the University to provide all of the responsive records except numbers 134,135, and 146-154. The University petitioned this Court for review.7

Under the RTKL, records in the possession of an agency are presumed to be public; however, that presumption does not apply if the record is privileged or exempt under section 708 of the RTKL, 65 P.S. § 67.708.8 “Exemptions from disclosure must be narrowly construed due to the RTKL’s remedial nature....” Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). “An agency bears the burden of proving, by a preponderance of the evidence, that a record is exempt from disclosure under one of the enumerated exceptions.” Brown v. Pennsylvania Department of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015). “A preponderance of the evidence standard, the lowest evidentiary standard, is tantamount to a more likely than not inquiry,” Delaware County v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).

[418]*418Initially, the University contends that the OOR erred in determining that certain records were not exempt as the product of a non-criminal investigation, pursuant to section 708(b)(17) of’ the RTKL, 65 P.S. § 67.708(b)(Í7).9 Section 708(b)(17)(ii) and (vi)(A) of the RTKL provide for the exemption from access by a requester of an agency’s record “relating to a noncriminal 'investigation, including , . [ijnvestigative materials, notes, correspondence and reports [and] ... [a] record that, if disclosed, would ... [r]eveal the institution, progress or result of an agency investigation.,,. ” 65 P.S. § 67.708(b)(17)(ii) and (vi)(A).

In construing the noncriminal investigation exemption in the context of section 708 of the RTKL, this Court .has determined that the agency needs to show that it conducted an “investigation,” which is defined as a “systematic or searching inquiry, a .detailed examination, or an official probe.” Department of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Cmwlth. 2010). “[T]he agency asserting the [exemption] must show that a searching inquiry or detailed examination was undertaken as part of an agency’s official duties. Stating that an investigation, occurred ,.. does not suffice.” Pennsylvania Department of Education v. Bagwell, 131 A.3d 638, 659-60 (Pa. Cmwlth. 2015) (citations omitted). Additionally, when submitting affidavits to establish that a record is exempt, this Court has stated that the “affidavits must be detailed, nonconclusory and submitted in good faith.... Absent evidence of bad faith, the veracity of an agency’s submissions explaining reasons for nondisclosure should not be questioned.” Scolforo, 65 A.3d at 1103 (citation omitted).

The University presented the Thorn Affirmation and the Log in support of its contention that it is exempt pursuant to section 708(b)(17) of the RTKL.

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168 A.3d 413, 2017 WL 3595651, 2017 Pa. Commw. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/california-university-of-pa-v-b-schackner-and-pittsburgh-post-gazette-pacommwct-2017.