174 A.3d 1167
Pa. Commw. Ct.2017Background
- Requester sought all bus camera video from a specific Port Authority bus route/ride on April 14, 2016; Port Authority denied under the RTKL noncriminal-investigation exemption (Section 708(b)(17)).
- Requester had filed a property-damage claim and later litigation against the Authority arising from the same incident; the claim was investigated by the Authority’s claims department and ultimately settled.
- Authority affidavits explained that bus footage is not routinely downloaded or reviewed; it is preserved and accessed primarily when an incident/claim prompts an investigation and access is limited to claims staff and Authority police.
- OOR ordered disclosure, reasoning that the videos are created before and independent of any investigation and thus cannot be said to exist "merely or primarily" for investigative use.
- This Court reviewed whether the recordings constituted "investigative materials" under the RTKL’s noncriminal-investigation exemption and reversed the OOR, holding the videos were exempt as they related to the Authority’s noncriminal investigation of the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bus surveillance recordings are exempt as records "relating to a noncriminal investigation" under RTKL §708(b)(17) | Towne: recordings were created independently of any investigation and thus not "merely or primarily" investigative; OOR should order disclosure | Port Authority: recordings were accessed, preserved, and used only in response to claims/accidents as part of a statutory self‑insurance investigatory function and therefore are investigative materials | Held: recordings are related to and part of the Authority’s noncriminal investigation and are exempt from disclosure under §708(b)(17) |
| Whether pre‑existing records can be "investigative materials" when retained/used for investigations | Towne: preexistence means records are not inherently investigative | Port Authority: retention/use practice shows the sole purpose is investigatory, so preexisting status does not defeat exemption | Held: preexistence alone does not preclude exemption; records used only for investigations can be investigative materials |
| Applicability of Grove (PSP MVRs) to bus videos | Towne/OOR: Grove shows videos generally are not investigative simply because created before an investigation | Port Authority: Grove is consistent where agency practices and affidavit show exclusive investigatory use; distinction exists between video-only content and recordings used as part of claims investigations | Held: Grove does not preclude exemption here; factual distinctions (exclusive investigatory use) justify exemption |
| Burden of proof on exemption | Towne: disclosures favored; OOR emphasized narrow construction of exemptions | Port Authority: must prove exemption by preponderance with affidavits showing investigatory purpose/use | Held: Authority met its burden by preponderance via affidavits demonstrating the videos were obtained, preserved, and used in the claims investigation |
Key Cases Cited
- Dep’t of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth.) (definition of "investigation" for RTKL exemption)
- Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (MVRs not per se exempt; investigative portions assessed case‑by‑case)
- Fennell v. Pa. Game Comm’n, 149 A.3d 101 (Pa. Cmwlth. 2016) (materials used in agency investigation fall within noncriminal-investigation exemption)
- Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435 (Pa. Cmwlth. 2011) (definition of preponderance standard under RTKL)