City of Pittsburgh v. A. Murray & The Pittsburgh Post Gazette
1194 C.D. 2020
| Pa. Commw. Ct. | Apr 12, 2022Background
- On Aug. 1, 2019, reporter Ashley Murray and the Pittsburgh Post-Gazette sent RTKL requests to the City of Pittsburgh for emails among 12 named officials and an outside event planner concerning the 2019 Fourth of July fireworks and Three Rivers Regatta.
- The City denied the requests and ultimately relied solely on Section 708(b)(16) of the RTKL (criminal investigations exemption), claiming overlap with a federal grand jury subpoena.
- OOR ordered the City to produce an exemption log; the City refused, arguing the federal subpoena and grand jury secrecy made an index unnecessary or improper, and it declined to submit responsive records for in camera review.
- The City submitted an affidavit and Director Wendell Hissrich testified he knew of an ongoing federal investigation but had not reviewed the responsive records or confirmed which documents had been compiled or produced to prosecutors.
- OOR and the trial court held the City failed to meet the evidentiary burden to invoke the criminal-investigations exemption; the trial court ordered production and the Commonwealth Court affirmed.
Issues
| Issue | Plaintiff's Argument (Murray/Post-Gazette) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether the City carried its burden to withhold records under RTKL §708(b)(16) (criminal investigations exemption). | Records are public; City failed to show they relate to a criminal investigation. | Overlap between the RTKL requests and a federal subpoena shows the records relate to an ongoing criminal investigation and are exempt. | Held: City failed to meet its burden—no descriptive log, no in camera submission, and its testimony/affidavit was speculative; records must be produced. |
| Whether §708(b)(16) covers records relating to a federal criminal investigation. | Argues exemption should not apply to federal-only investigations. | City argued exemption applies (or did not press this threshold before the court). | Court declined to decide because City failed the evidentiary threshold required to invoke the exemption. |
Key Cases Cited
- Bowling v. Off. of Open Recs., 990 A.2d 813 (Pa. Cmwlth. 2010) (use of exemption logs and requirement of minimally sufficient showing)
- Carey v. Pa. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013) (affidavit must connect record nature to likelihood disclosure would violate exemption)
- Off. of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (affidavits must be detailed and nonconclusory)
- Off. of Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119 (Pa. Cmwlth. 2017) (official affidavits can support exemption but must be specific)
- McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (utility of privilege/exemption logs)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn-index principle; government cannot rely on conclusory claims)
- Easton Area Sch. Dist. v. Miller, 232 A.3d 716 (Pa. 2020) (RTKL policy favoring public access)