C. Diveglia v. PSP
1378 C.D. 2016
| Pa. Commw. Ct. | Sep 1, 2017Background
- On April 6, 2016 Diveglia requested the unedited dash-cam (MVR) from a Pennsylvania State Police vehicle relating to a November 16, 2014 pursuit that resulted in her arrest and criminal charges.
- The State Police denied the request, asserting the MVR was exempt as criminal investigative material under RTKL §708(b)(16) and that CHRIA prohibits dissemination to non–criminal-justice agencies.
- Diveglia appealed to the Office of Open Records (OOR). OOR asked for an indefinite extension to permit in camera review; Diveglia refused an indefinite extension and sought a specific deadline.
- OOR then issued a “Decision in Lieu of Final Determination,” deeming the appeal denied by operation of law because Diveglia would not agree to the extension. OOR stated it could not develop the evidentiary record without the MVR.
- Diveglia petitioned for Commonwealth Court review, arguing she did not refuse an extension (only sought specificity), that OOR had sufficient evidence to decide the appeal, and that the State Police had not met its burden to prove the exemption.
- The Commonwealth Court vacated OOR’s deemed denial and remanded, instructing OOR either to issue a merits determination or to explain why the existing record is inadequate to reach one.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OOR properly deemed the appeal denied for lack of a requester-granted extension | Diveglia: she never refused an extension, only asked OOR to justify an indefinite extension and proposed a date; OOR failed to explain consequences of refusal | State Police/OOR: failure to agree to an extension triggered RTKL §1101(b) — appeal is deemed denied after 30 days | Court: OOR erred — it did not show it lacked authority to decide within 30 days or that the record was insufficient; vacated deemed denial and remanded |
| Whether OOR had an adequate record to decide the merits without in camera review | Diveglia: OOR already had officer verification and case exhibits describing the MVR; no factual dispute about contents | State Police: OOR needed the MVR for in camera inspection to resolve exemption and CHRIA issues | Court: Record (affidavits/verifications/exhibits) appeared sufficient; OOR must either decide merits or explain why record is inadequate |
| Whether OOR may require a requester to grant an indefinite extension | Diveglia: requester cannot be compelled to give an indefinite extension; OOR must comply with §1101(b) unless requester agrees | OOR: routinely requests indefinite extensions when in camera review is necessary and cited pending related litigation | Court: OOR has no authority to force an indefinite extension; it may request extensions but must justify and may still decide on available record |
Key Cases Cited
- Pennsylvania State Police v. Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015) (MVRs not automatically exempt; redaction framework when records mix investigative and non-investigative content)
- Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (superseding appellate decision clarifying expectations under Wiretap Act and that MVRs are not categorically exempt)
- Office of Open Records v. Pennsylvania State Police, 146 A.3d 814 (Pa. Cmwlth. 2016) (Court enforced OOR’s ability to seek in camera review but recognized limits imposed by CHRIA and RTKL principles)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (describing RTKL appeals process as streamlined and time-sensitive)