234 A.3d 865
Pa. Commw. Ct.2020Background
- Requester Chester Darlington sought all records (correspondence, inspections, investigation reports, citations, photos, etc.) relating to a June 15, 2016 incident at Veolia Energy Plant Philadelphia under the RTKL.
- Pennsylvania Department of Labor & Industry (Department) denied the request in whole, invoking the RTKL exemption for records "relating to a noncriminal investigation" (65 P.S. § 67.708(b)(17)).
- Department submitted attestations (Matthew Kegg, BOIS Director) saying responsive records included both periodic/regular field inspection reports and investigation records; some inspections dated back to 1991.
- The OOR requested a supplemental attestation, then issued a Final Determination: it ordered production of 22 regular periodic boiler field inspection reports but upheld withholding of records related to the 2016 incident as noncriminal-investigation material.
- Department appealed only the OOR’s ruling that routine inspection reports are not exempt; Commonwealth Court affirmed the OOR, holding routine inspections do not meet the "noncriminal investigation" standard and that the Department’s attestations were insufficient.
Issues
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (Darlington) | Held |
|---|---|---|---|
| Whether routine/periodic boiler inspection reports are exempt as records of a "noncriminal investigation" under RTKL §708(b)(17) | Routine inspections are performed pursuant to the Boiler Law, involve the Department’s legislatively granted fact-finding powers and constitute systematic, searching inquiries (no triggering event required). | Boiler Law distinguishes "inspections" from "investigations"; regular inspections are scheduled, may be performed by private/third-party commissioned inspectors, and thus are not noncriminal investigations. | Court affirmed OOR: routine inspection reports are not exempt; they do not demonstrate the requisite systematic/searching inquiry by the Department. |
| Whether the Department’s attestations met its burden to show the exemption applies | The Kegg attestations describe testing, interviews, and report contents sufficient to show these records reveal the institution/progress/result of investigations. | The attestations are conclusory and do not distinguish routine inspections from formal investigations or show Department-led probing. | Held: Attestations were insufficient—largely track exemption language and fail to show inspections met the investigation standard. |
| Whether documents unrelated to the Department’s investigation fall outside the scope of the Request (procedural/scope defense) | Many regular inspection records were unrelated to the 2016 incident and thus outside Request scope. | Request was broad and the OOR already found the records responsive; Department waived any scope objection by not raising it before the OOR. | Held: Department’s scope objection was waived because it was not raised before the OOR; court deferred to OOR. |
Key Cases Cited
- Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010) (defines "investigation" as a "systematic or searching inquiry, a detailed examination, or an official probe" under RTKL)
- Pa. Pub. Util. Comm'n v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012) (utility safety inspections can qualify as noncriminal investigations)
- Michak v. Dep't of Public Welfare, 56 A.3d 925 (Pa. Cmwlth. 2012) (license inspection summaries exempt as noncriminal investigative records)
- Pa. State Police v. Muller, 124 A.3d 761 (Pa. Cmwlth. 2015) (affidavits that merely mirror exemption language are insufficient)
- Pa. Dep't of Education v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (RTKL exemptions construed narrowly; burden on agency to prove exemption)