Pennsylvania State Police v. Muller

124 A.3d 761, 2015 Pa. Commw. LEXIS 408
CourtCommonwealth Court of Pennsylvania
DecidedJune 30, 2015
StatusPublished
Cited by20 cases

This text of 124 A.3d 761 (Pennsylvania State Police v. Muller) 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
Pennsylvania State Police v. Muller, 124 A.3d 761, 2015 Pa. Commw. LEXIS 408 (Pa. Ct. App. 2015).

Opinion

OPINION BY

Senior Judge JAMES GARDNER COLINS.

Pennsylvania State Police (PSP) petitions for review of a final determination of the Office of Open Records (OOR) granting John Muller’s (Requester) request for records related to a telephone call to PSP on the grounds that PSP has not met its bhrden to demonstrate that the records sought were exempt from public disclosure under Section. 708(b)(18)(i) of the Right to Know Law1 (RTKL), which exempts “[rjecords or parts of 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). For the following reasons, we affirm.2

On June 19, 20Í4, Requester filed a RTKL request with the PSP seeking “.all records pertaining to a phone call about Northern Chester County Sportsman’s Club meeting April 28th 5pm-10pm 2014.” (OOR Record Item (R. Item) 1, RTKL Request, Reproduced Record (R.R.) at la.) On July 28, 2014, PSP denied the request. (R. Item 1, RTKL Denial, R.R. at 2a.) The letter denying the request states that “[p]er our June 23, 2014 telephone conversation, you indicated Paul Barr or Dean Barr would have made the requested phone call to Troop J, Embreeville Station.” (Id.) The letter further states that “[biased on the information provided, your request is denied because the responsive record you seek is not accessible to the public,” and that “the PSP incident Memo No. J03-1437031' is exempt from public [764]*764disclosure under RTKL section [708(b)(18) ].” (Id.)

’ The denial was accompanied by a Verification 3 signed by Lissa-M. Ferguson, PSP Deputy Agency Open Records Officer, which stated: (1) that she was familiar with the.request; (2) that based on the request itself and a telephone conversation with Requester, she searched all PSP databases to which she had access and found one responsive record — PSP Incident Memo No. J03-1437031; and (3) that she determined the responsive record was exempt from public disclosure under RTKL section 708(b)(18)(i). (R. Item 1, Verifica-; tion, R.R. at 4a.)

On August 11, 2015, Requester appealed the denial to OOR. (R. Item 1, RTKL Appeal from Denial, R.R. at 5a.) Requester stated in his appeal that he asked for the phone log of who called, when they called, the reason for the call, if troopers were dispatched, and any other incident reports pertaining to the call. (Id.) Requester argued in his appeal that the records were not exempt from public disclosure and that “[a]ll police calls are logged. There is not an ongoing investigation, therefore records and incident' reports should be available.” (Id.) PSP responded to the appeal by letter brief on August 25, 2014. (R. Item 3, PSP Letter Brief, R.R. at 10a-12a.) PSP argued that the responsive record was exempt from public disclosure because it was a record pertaining to a telephone call received by emergency dispatch personnel and requested that OOR hold a hearing if OOR was unable to affirm PSP’s denial of the request based on the record currently before OOR. (Id.) PSP did not offer any evidence to supplement the record before OOR.

On September 15, 2014, OOR issued a final determination granting Requester’s appeal and requiring PSP to provide the Incident Memo to Requester. (R. Item 4, OOR Determination.) OOR concluded that PSP had offered only conclusory statements in the form of the Verification signed by Ms. Ferguson and the letter brief to support its position that the Incident Memo was exempt from disclosure under the RTKL. (Id. at 4.) OOR held that these conclusory statements failed to satisfy PSP’s burden of proof and; therefore, OOR was constrained to grant Requester access to the Incident Memo. (Id. at 4-5.). PSP timely petitioned this Court for review of OOR’s final determination.

Before this Court, PSP argues: (i) that OOR erred as a matter of law in concluding that the Incident Memo was not exempt from public disclosure because the plain language of Section 708(b)(18)(i) of the RTKL exempts all records related to telephone transmissions received by emergency dispatch personnel; (ii) that OOR erred in concluding that PSP did not demonstrate that the Incident Memo is exempt from disclosure under the RTKL; and (iii) that if this Court determines that PSP failed to meet its burden of proof, as the ultimate finder of fact, this Court should expand the record to include an affidavit submitted by PSP Agency Open Records Officer William A. Rozier, in support of PSP’s denial of the RTKL request.

As the Commonwealth agency in possession of a responsive record, the RTKL places the burden on PSP to show by a preponderance of evidence that the responsive record is exempt from public access. 65 P.S. § 67.708(b)(1). A preponderance of the evidence is such evidence as would lead a fact-finder to find that the [765]*765existence of a contested fact is more probable than the nonexistence of the contested fact. Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435, 438-439 (Pa.Cmwlth.2011). A Commonwealth agency may provide affidavits to detail the search it conducted for documents responsive to a RTKL request and the justification, if applicable, for any exemption from public disclosure relied upon for nondisclosure of responsive documents. Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa.Cmwlth.2013). Relevant and credible testimonial affidavits may provide sufficient evidence in support of a claimed exemption. Heavens v. Pennsylvania Department of Environmental Protection, 65 A.3d 1069, 1074 (Pa.Cmwlth.2013). The affidavit must be detailed, nonconclusory, and submitted in good faith; an affidavit which merely tracks the language of the exception it presupposes is insufficient to demonstrate that the responsive records are exempt from disclosure. Office of the Governor v. Scolforo, 65 A.3d at 1103-1104.

Section 708(b)(18) of the RTKL provides an exemption from public disclosure for:

(18)(i) Records or parts of records, except time response logs, pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings.
(ii) This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure.

65 P.S. § 67.708(b)(18). The plain language of the statute requires the rejection of PSP’s first contention: the RTKL does not exempt all records relating to telephone transmissions received by emergency dispatch personnel. Instead, the text of the statute clearly requires “time response logs” to be disclosed without exception.

Next, we agree that the Verification is insufficient to carry PSP’s burden. PSP concluded that Incident Memo No. J03-1437031 was responsive to Requester’s RTKL request. PSP provided the Verification from Ms. Ferguson in support of its nondisclosure, but offered no other evidence to justify the application of the exemption. The Verification states that Ms.

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Bluebook (online)
124 A.3d 761, 2015 Pa. Commw. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-state-police-v-muller-pacommwct-2015.