Brown v. Pennsylvania Department of State
123 A.3d 801
| Pa. Commw. Ct. | 2015Background
- Alton D. Brown (pro se) requested letters from the Pennsylvania Department of State that disclosed final outcomes of two noncriminal investigations of licensed physicians (complaints to State Board of Medicine and State Board of Osteopathic Medicine).
- The Department’s Records Officer denied the request under RTKL §708(b)(17) as records relating to noncriminal investigations.
- Brown appealed to the Office of Open Records (OOR); the Department submitted sworn affidavits from Deputy Chief Counsel Bernadette Paul describing BEI investigations and that prosecuting attorneys closed the matters without discipline.
- The OOR affirmed the denial, finding the requested letters exempt under RTKL §708(b)(17)(vi)(A); it also held that MCARE §907(a)’s carve-out of letters to licensees did not override the RTKL access exception.
- Brown petitioned the Commonwealth Court for review; the court reviewed de novo and affirmed the OOR’s determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dept. proved requested letters are exempt under RTKL §708(b)(17)(vi)(A) | Brown: affidavits are conclusory and insufficient | Dept.: detailed affidavits show noncriminal investigations and that disclosure would reveal investigation progress/results | Held: Dept. met its burden; affidavits were detailed, nonconclusory, credible |
| Whether Dept. had to show public policy to deny discretionary release under RTKL §506(c) | Brown: Dept. failed to show public policy supporting denial | Dept.: denial rested on statutory exemption; §506(c) discretionary release not required | Held: Agency need not present public policy evidence when relying on statutory exemption |
| Whether MCARE §907(a) makes the letters public and thus not subject to RTKL exemption | Brown: MCARE §907(a) excludes letters to licensees from confidentiality, so letters must be disclosed | Dept.: Even if MCARE makes them non-privileged/public in nature, RTKL governs access and its exemptions apply unless conflicted | Held: MCARE establishes public nature but not access; RTKL access provisions (including §708(b)(17)(vi)(A)) apply and preclude disclosure |
| Procedural waiver of other arguments (routine function) | Brown raised routine-function argument on appeal | Dept.: argued primary exemptions; OOR did not address routine-function; procedural default issue | Held: Court found routine-function argument waived for failure to raise before OOR |
Key Cases Cited
- Heavens v. Pennsylvania Dep’t of Environmental Protection, 65 A.3d 1069 (Pa. Cmwlth. 2013) (affidavits can support RTKL exemptions if relevant and credible)
- Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (affidavits must be detailed, nonconclusory, and in good faith)
- Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010) (agency discretion to release otherwise exempt records under §506(c) is permissive, not mandatory)
- Department of Labor & Industry v. Heltzel, 90 A.3d 823 (Pa. Cmwlth. 2014) (distinguishing public nature of a record from access to it under the RTKL)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (standard of review under the RTKL is de novo; scope of review is plenary)
- Dep’t of Public Welfare v. Chawaga, 91 A.3d 257 (Pa. Cmwlth. 2014) (definition of "investigation" in RTKL context)
- McCord v. Pennsylvanians for Union Reform, 100 A.3d 755 (Pa. Cmwlth. 2014) (statute that establishes public nature but not access may not conflict with RTKL access provisions)