PA Dept. of L & I v. C. DarlingtonPA Dept. of L & I v. C. Darlington
FILED: June 9, 2020
The Pennsylvania Department of Labor and Industry (Department) petitions for review of the October 16, 2019 Final Determination of the Office of Open Records (OOR), which granted in part and denied in part Chester Darlington’s (Requester) appeal of the Department’s denial of his Request under the Right-to-Know Law (RTKL).1 The OOR ordered the Department to provide copies of regular boiler inspection reports,2 but documentation relating to the Department’s investigation of a 2016 incident would remain exempt from disclosure pursuant to Section 708(b)(17) of the RTKL,
I. BACKGROUND
On August 28, 2019, Requester submitted a Request to the Department’s Agency Open Records Officer (AORO), seeking “any and all records and relevant materials . . . including but not limited to correspondence, inspections, investigation reports, citations, violations, penalties, photographs, etc. pertaining to an incident which occurred on June 15, 2016 at Veolia Energy Plant Philadelphia . . . .” (Reproduced Record (R.R.) at 10a.) The Department “denied [the] [R]equest because records of the Department relating to a noncriminal investigation . . . and records that would reveal the institution, progress or result of a Department investigation are exempt from disclosure under the RTKL.” (Id. at 11a.) Furthermore, the Department noted that those records did not fall within the exception to the noncriminal investigation exemption, specifically that the records did not include any indication of an “imposition of a fine or civil penalty; the suspension, modification, or revocation of a license, permit, registration, certification, or similar authorization; or an executed settlement agreement.” (Id.)
On September 9, 2019, Requester appealed to the OOR and stated that the Department’s “blanket denial [was] improper. Redactions should [have] be[en] made and the remainder produced. . . . In addition, the response is vague and non-specific by using the words ‘among others’ and an incomplete citation to the regulation.” (Id. at 9a.) The Department filed a position statement, wherein it claimed that “[b]ecause the weight of the evidence establishes that the requested records are exempt from disclosure, the Department’s denial should be affirmed.” (Id. at 20a.) The Department specifically explained that it investigated an incident that occurred in June 2016 at Veolia Energy Plant Philadelphia for alleged violations of the Boiler Law, pursuant to the Department’s powers under Section 4 of the Boiler Law,
On September 26, 2019, the OOR emailed the parties requesting that the Department provide a supplemental attestation with additional descriptions and details as to the records.5 On October 1, 2019,
[t]hese electric inspection reports provide information regarding the equipment inspected; whether it passed or failed inspection; specific location in the plant; manufacturer; and a description of any deficiencies found by the inspector. Because these inspection reports contain information relating to whether or not deficiencies were uncovered by inspectors in the course of legally[]mandated safety inspections of the equipment, they constitute records that would reveal the institution, progress or result of an agency investigation.
(Id. at 36a.) Mr. Kegg also stated that investigations and periodic inspections include specific reviews of the equipment and interviews with maintenance staff and other employees who have knowledge of the equipment’s operation. (Id.)
On October 16, 2019, the OOR issued its Final Determination, which granted in part and denied in part Requester’s appeal. The OOR noted that there were 22 inspection reports that the Department identified as responsive records. (Final Determination at 4.) In reviewing the original and supplemental attestations provided by Mr. Kegg, the OOR stated that the attestations do “not establish that the inspections at issue rise to the level of a noncriminal investigation.” (Id. at 6.) In reaching this conclusion, the OOR set forth the standard for noncriminal investigations, as established by this Court in Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010). Specifically, the OOR explained that, to constitute a noncriminal investigation, “an agency must demonstrate that ‘a systemic or searching inquiry, a detailed examination, or an official probe’ was conducted regarding a noncriminal matter,” which was “‘conducted as part of an agency’s official duties.’” (Final Determination at 4-5 (quoting Dep’t of Health, 4 A.3d at 810-11, 814).) Furthermore, the OOR explained that “the investigation must specifically involve an agency’s legislatively granted fact-finding powers.” (Id. at 5.)
The OOR then examined the Boiler Law, which according to the OOR, requires annual field inspections to be performed by an inspector either employed by the owner of the boiler, an insurer, a contractor, or a Department inspector. The OOR noted that reports from those inspections must be filed within 15 days and, in the event of an accident, the Department must be immediately notified. The OOR found the Boiler Law authorizes the Department to investigate violations and punish violators. (Id.) With that background, the OOR turned to the regular inspections at issue. The OOR considered the attestations submitted by Mr. Kegg and determined the Department did not meet its burden of showing the regular boiler inspections rise to a level of noncriminal investigation. The OOR determined that this matter was distinguishable from Department of Health. Although both cases involved physical inspections, the OOR found the regular inspections here do not
In addition, the OOR noted that the boiler inspections at issue were performed regularly every 12 months regardless of the inspection’s findings, and that the owner of a boiler may decide to have the inspection done by a private, certified inspector. “[A]bsent evidence that any given [regular] boiler inspection report touched off a more detailed inquiry by the Department,” the OOR stated it could not “conclude that such reports rise to the level of a noncriminal investigation within the meaning of the RTKL.” (Id. at 7.) The OOR concluded that the Department was, therefore, required to provide copies of the regular boiler field inspection reports to Requester. However, the OOR distinguished the records related to the 2016 incident, which it found were related to a noncriminal investigation of the Department. Requester did not appeal this aspect of the OOR’s Final Determination and, therefore, only the regular boiler field inspection reports are at issue in this appeal.
The Department filed a Petition for Review of the OOR’s Final Determination wherein it asserted that
[t]he OOR erred when it found that routine boiler inspections do not rise to the level of noncriminal investigations because every boiler safety inspection is conducted as part of the Department’s official duties, specifically involves the Department’s legislatively granted fact-finding powers, and constitutes a “systematic or searching inquiry, a detailed examination, or an official probe.”
(Petition ¶ 18 (quoting Dep’t of Health, 4 A.3d at 811).) The Department asserted that even if the Court would consider a boiler safety inspection not to be a noncriminal investigation, the Request, on its face, sought information related to an incident, which warranted a noncriminal investigation, and those investigations are exempt under Section 708(b)(17) of the RTKL.
II. PARTIES’ ARGUMENTS
On appeal,6 the Department argues that the OOR erred by concluding that the regular inspection records did not relate to a noncriminal investigation. The Department asserts that the Boiler Law grants the Department authority to conduct a boiler safety inspection to determine compliance with the Boiler Law, whether or not the inspections are linked to a reported incident. Further, the Department argues that there does not need to be an incident or “triggering event” for an investigation to be considered a noncriminal investigation. (Department’s Brief (Br.) at 14.) The Department asserts that the OOR precedent does not support the OOR’s determination that drew a distinction between regular inspections and investigations into alleged incidents. Furthermore, the Department argues that the case law supports an interpretation that the Department’s regular safety inspections qualify as noncriminal investigations under the RTKL. The Department cites to Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012), Department of Environmental Protection v. Delaware Riverkeeper Network, 113 A.3d 869 (Pa. Cmwlth. 2015), and Michak v. Department of Public Welfare, 56 A.3d 925 (Pa. Cmwlth. 2012), arguing that these cases demonstrate that the word used in classifying the actions of the government agency is not important and instead it is whether the agency has conducted “a systematic or searching inquiry, a detailed examination, or an official probe” as established in Department of Health.
Additionally, the Department argues that the Request specifically asked for all records pertaining to the 2016 incident. The Department asserts that because the OOR ordered the release of regular investigations “unrelated to the Department’s investigation,” “such documents fall outside the scope of Requester’s [R]equest.” (Department’s Br. at 19.) Thus, any documents related to regular inspections, the Department asserts, fall outside the Request.
Requester argues that the OOR’s Final Determination was correct. Requester asserts that there is a clear difference in the Boiler Law regarding “inspection” and “investigation” activities, which are specifically delineated and separated within the Boiler Law’s sections, noting that Section 9,
In its reply brief, the Department argues that Department of Health applies because interviews about noncompliance with the Boiler Law also warrant protection to promote truthful answers without “fear of retaliation or embarrassment” and without condemnation from unsubstantiated statements or allegations if released to the public. (Department’s Reply Br. at 5-6.) Furthermore, the Department argues that an “expectation of privacy” “is not relevant to an analysis of whether the documents [Requester] requested are subject to disclosure under the RTKL.” (Id. at 6.) In addition, the Department asserts that the Boiler Law does not allow the owner of the boiler to decide who performs the inspections, and instead that authority still lies with the Department as the inspections must be performed by “the Department or by a Department-Commissioned inspector.” (Id. at 7.) Finally, the Department
III. DISCUSSION
A Commonwealth agency’s records are presumed public, unless they fall within an exemption under the RTKL. An agency is permitted to withhold “[a] record of an agency relating to a noncriminal investigation,” which includes “investigative materials, notes, correspondence[,] and reports,” and records that would “[r]eveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency” or “[c]onstitute an unwarranted invasion of privacy.”
We begin with a brief review of the Boiler Law, which the Department contends provides the basis for its claim that the regular inspections constitute noncriminal investigations under the RTKL. The Department is empowered by the Boiler Law to enforce the Boiler Law, as well as promulgate and enforce related regulations. Section 13(a) of the Boiler Law,
Once operational, boilers are also subject to required regular field inspections, and the reports of the inspections must be given to the Department. Section 9(f) of the Boiler Law,
Should an “accident or explosion” occur, the “owner, user or operator shall immediately notify the Department.”
In the case before us, the OOR determined that investigations into violations and regular inspections were two distinct activities under the Boiler Law, and the regular inspections did not fall within the noncriminal investigation exemption of the RTKL. The OOR explained that regular boiler inspections are done on a regular basis, “regardless of the findings of the inspection.” (Final Determination at 7 (citing
In analyzing whether the “inspections” under the HCFA qualified as “investigations” under the RTKL, this Court pointed to the long list of requirements for inspections to determine whether the nursing homes were in compliance with the HCFA and other federal and state laws and regulations, including: interviews with staff; reviewing records of patients and the nursing home; inspection of the nursing home itself; and overall observation of operations. Id. at 811. The Court concluded that
Following Department of Health, this Court has examined other forms of inspections and determined they were exempt from disclosure. In Michak, a request was made for relevant License Inspection Summaries (LISs) performed by the Department of Public Welfare, Office of Child Development and Early Learning. A LIS describes “deficiencies in a licensee’s compliance with the relevant statute and regulations, and provides space for the licensee to set out a plan of correction.” 56 A.3d at 928-29. The requester in Michak argued that the LISs were not exempt because they “modif[ied] or condition[ed] day care providers’ certificates of compliance,” (id. at 928), and that the LIS information was already published on the Department of Public Welfare’s website, (id. at 929), but did not argue that inspections were not covered under the noncriminal investigation exemption. This Court determined that the OOR properly determined that LISs fell within the noncriminal investigative exemption.
In Gilbert, we also reviewed inspections, specifically gas utility safety inspections, completed for certification. We concluded those inspections “involve systematic, searching, detailed examinations of a natural gas utility’s operations and whether such operations were in compliance with the applicable federal and state pipeline safety regulations.” 40 A.3d at 760. The OOR determined that the Public Utility Commission (PUC) did not establish that the requested records under those inspections fell under the noncriminal investigation exemption. Id. at 758. We determined that the request asked for investigative materials, and statements made by the utility’s employees, and thus created the same concerns regarding disclosure as arose before this Court in Department of Health. Id. at 761. Accordingly, we concluded that the inspections qualified as noncriminal investigations and thus were exempt from public disclosure. Id. at 762.
As guided by our decision in Department of Health, we must determine whether a regular inspection under the Boiler Law qualifies as a noncriminal investigation that is exempt from public disclosure by determining whether “the Department is making a systematic and searching inquiry, a detailed examination, or an official probe” into operations and compliance with controlling laws and regulations. Dep’t of Health, 4 A.3d at 811. That the statute or regulation refers to an “inspection” is not determinative, if the inquiry otherwise meets the standards for a noncriminal investigation.
The OOR determined that the routine inspections at issue do not meet the standards of a “noncriminal investigation” as set out in our precedent for essentially
First, the Boiler Law distinguishes between a “field inspection” and an “investigation.” Section 9 provides for “inspections,” while Sections 14 and 15 provide the procedures of “investigations.” Before delving into the differences between the two functions, we note that the “polestar indication of the legislature’s intent is the plain language of the statute.” SugarHouse HSP Gaming, L.P. v. Pa. Gaming Control Bd., 162 A.3d 353, 375 (Pa. 2017). Based on the use of the different terms throughout the Boiler Law, the legislature’s intent was that they would be separate and distinct. Within Section 2 of the Boiler Law,
The distinction is more evident when reviewing the Boiler Law. Inspections must conform to an established schedule set out by the Boiler Law, unless specially altered by the Department.
The fact that the Department is charged with investigations, but may delegate the duties of regular inspections to be performed by independent inspectors is telling. The ability to delegate inspection authority differs from the inspections in Department of Health, where the inspections were made by DOH or one of its authorized agents under the HCFA. Dep’t of Health, 4 A.3d at 811 (citing Section 813(a) of the HCFA,
Furthermore, the attestations do not meet the burden of showing how these inspections meet the standards for noncriminal investigations as set forth in our precedent. In the attestations, Mr. Kegg stated: “The procedures that BOIS generally employs when investigating a boiler-related incident or conducting periodic safety inspections include carefully testing specified parameters of the relevant equipment and interviewing maintenance people and others with knowledge of the recent operation of the equipment.” (R.R. at 36a.) Mr. Kegg further stated that the inspection reports at issue “provide information regarding the equipment inspected; whether it passed or failed inspection; specific location in the plant; manufacturer; and a description of any deficiencies found by the inspector.” (Id.) Mr. Kegg only lists what the safety inspection reports entail and gives a very general description of what the Department does in both investigations and inspections. Importantly, Mr. Kegg also does not distinguish between what a routine field inspection involves compared to an investigation of boiler-related incidents, notwithstanding that the statute distinguishes between the two activities.
In contrast, in Department of Health, we described the required inspections as:
visiting and inspecting the building, grounds, equipment and supplies of a nursing home; reviewing records of the nursing home and patients; and observing and interviewing patients and staff of the nursing home. Moreover, these activities are conducted in order to assess a nursing home’s compliance with statutory and regulatory provisions and determine if any corrective and/or disciplinary action needs to be taken. Similarly, the Surveys performed by the Department involve a team of Surveyors who: examine medical records of residents; interview residents, staff, and family members; and make observations of a facility, which include observing medication preparation and administration and dining area and eating assistance practices. These activities are conducted in order to assess whether a nursing home is providing the quality of care mandated by law. Thus, in conducting the Inspections and Surveys, the Department is making a systematic and searching inquiry, a detailed examination, and an official probe with regard to a nursing home’s operations and whether such operations are in compliance with the Social Security Act, [
42 U.S.C. §§ 301-1397mm ,] the HCFA, and the applicable state and federal regulations.
Dep’t of Health, 4 A.3d at 811 (internal citations omitted).
This comprehensive description of the DOH investigation is much different from the general description of the inspection procedures under the Boiler Law. What the inspections entail, particularly when they are completed by inspectors hired by the owner of the boiler, remains unclear. The attestations here do not demonstrate that “the Department is making a systematic and searching inquiry, a detailed examination, or an official probe,” Department of Health, 4 A.3d at 811, into operations and compliance with the Boiler Law and controlling regulations. Furthermore, an agency must show that the inspection is within the agency’s official
Finally, the disclosure here does not raise the same public policy concerns as were present in this Court’s decision in Department of Health. There is no dispute that privacy of health care records and other concerns unique to health care are not present in the case before us as they were in that case. While Mr. Kegg’s affidavit mentions that inspections include “interviewing maintenance people and others with knowledge of the recent operation of the equipment,” (R.R. at 36a), we agree with the OOR that it is not clear how periodic interviews regarding boiler operations “raise the same concerns about witness confidentiality or harm to reputation” that were present in Department of Health. (Final Determination at 6-7.) Accordingly, we will not overturn the OOR’s determination that the inspection reports do not fall under the noncriminal investigation exemption, and thus are to be disclosed to Requester. The Department has not provided sufficient evidence as to the inspections, and the special public policy concerns of Department of Health are not present in the case before us.10
IV. CONCLUSION
The requested documents that the OOR ordered disclosed do not fall under the noncriminal investigation exemption of Section 708(b)(17) of the RTKL, and thus are public records subject to public disclosure.
RENÉE COHN JUBELIRER, Judge
O R D E R
NOW, June 9, 2020, the Final Determination of the Office of Open Records, dated October 16, 2019, is AFFIRMED.
RENÉE COHN JUBELIRER, Judge
Notes
(vi) A record that, if disclosed, would . . .
(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.
Each inspector shall forward to the department a report of each field inspection made of any boiler or unfired pressure vessel showing the exact condition of the boiler or unfired pressure vessel. Inspection reports shall be submitted within 15 days of the date of inspection. Inspection reports received more than 15 days after the inspection was made may be considered invalid by the [D]epartment. The report shall be filed on the form and in the manner prescribed by the [D]epartment.