124 A.3d 761
Pa. Commw. Ct.2015Background
- Requester sought all records related to a phone call about a club meeting on April 28, 2014, to the Pennsylvania State Police (PSP).
- PSP located one responsive document: Incident Memo No. J03-1437031, and denied access under RTKL § 708(b)(18)(i) (exemption for records pertaining to audio, telephone, or radio transmissions received by emergency dispatch personnel), supported by a Verification from its Open Records Officer.
- Requester appealed to the Office of Open Records (OOR), arguing call logs and incident reports should be public because no ongoing investigation existed.
- OOR granted the appeal, finding PSP’s Verification conclusory and insufficient to meet the agency’s burden to prove the exemption applied, and ordered disclosure of the Incident Memo.
- PSP petitioned for review in this Court and sought to supplement the record with an affidavit submitted for the first time on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RTKL § 708(b)(18)(i) exempts all records related to telephone transmissions to emergency dispatch | Requester: Records (including incident memo) not exempt; call logs/incident reports should be public | PSP: Statute exempts records pertaining to telephone/radio transmissions received by emergency dispatch personnel | Court: Statute does not exempt all records; time response logs must be disclosed and statute is not categorical exemption |
| Whether PSP met its burden to show the Incident Memo is exempt | Requester: PSP failed to show exemption with specifics | PSP: Verification and statutory language suffice given the specific request | Court: PSP’s Verification was conclusory; agency failed to provide detailed, nonconclusory evidence showing the exemption applied |
| Whether PSP had to disclose time, address, and response information | Requester: Such information is public and required to evaluate response | PSP: Claimed exemption over the record (implicitly including such details) | Court: Time response logs (time of request, address/cross-street, arrival time) are not exempt and PSP gave no justification to withhold them |
| Whether the court should allow supplementation of the record on appeal | Requester: Agency should not be allowed to add evidence on appeal | PSP: Allowed to supplement with affidavit of Open Records Officer Rozier | Court: Denied supplementation; agency must present evidence before OOR and cannot seek a second bite on appeal |
Key Cases Cited
- Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435 (Pa. Cmwlth. 2011) (defines preponderance standard and agency burden under RTKL)
- Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (affidavits must be detailed, nonconclusory, and in good faith to support exemptions)
- Heavens v. Pennsylvania Department of Environmental Protection, 65 A.3d 1069 (Pa. Cmwlth. 2013) (affidavits can provide sufficient evidence for claimed exemptions if credible and detailed)
- County of York v. Pennsylvania Office of Open Records, 13 A.3d 594 (Pa. Cmwlth. 2011) (time response logs must contain time, address/cross-street, and arrival time and are not exempt)
- Pennsylvania Turnpike Commission v. Murphy, 25 A.3d 1294 (Pa. Cmwlth. 2011) (denial of supplementation where agency could have submitted evidence below)
- Carey v. Pennsylvania Department of Corrections, 61 A.3d 367 (Pa. Cmwlth. 2013) (discusses circumstances for permitting supplementation tied to security or safety considerations)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (scope of review under RTKL is plenary and standard is de novo)