Borough of Pottstown v. Suber-Aponte

202 A.3d 173

BOROUGH OF POTTSTOWN

v.Shanicqua SUBER-APONTE, Appellant

No. 478 C.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 13, 2018

Decided January 8, 2019

Shanicqua Suber-Aponte, pro se.

Matthew T. Hovey, Pottstown, for appellee.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE COVEY

Shanicqua Suber-Aponte (Requester), pro se, petitions this Court for review of the Montgomery County Common Pleas Court's (trial court) November 21, 2016 order denying Requester's Right-to-Know Law (RTKL)¹ request (Request). Requester presents three issues for this Court's review: (1) whether the trial court erred by finding that the Request lacked specificity; (2) whether the trial court erred by finding that the content requested was exempt under the RTKL and the Criminal History Record Information Act (CHRIA);² and (3) whether the trial judge erred by failing to recuse himself. After review, we affirm in part, reverse in part and vacate and remand in part.

Background

On November 25, 2015, Requester submitted the Request to the Borough of Pottstown (Borough) seeking a copy of "police video footage [ (footage) ] on October 4, 2015 of herself ... from the time [she was] brought in [to the police department (Department) ] and all activity at [the Department] that day."³ Original Record (O.R.) Item 0 (Petition for Review (Petition)) Ex. A at 16. On January 4, 2016,⁴ the Borough denied the Request, stating that the footage was exempt from disclosure under Section 708(b)(1)(ii) (personal security), 708(b)(2) (public safety), 708(b)(3) (safety or physical security of a building), 708(b)(16) (criminal investigation) and 708(b)(17) (noncriminal investigation) of the RTKL,⁵ and Sections 9102 (investigative information defined) and 9106 (investigative information) of CHRIA.⁶ See O.R. Petition Ex. B at 19. The Borough also maintained that the Request "lacked specificity [required by Section 703 of the RTKL,] 65 P.S. § 67.703 [.]" O.R. Petition Ex. B at 20.

On January 13, 2016, Requester appealed to the Pennsylvania Office of Open Records (OOR), challenging the Borough's denial. See O.R. Petition Ex. C. The OOR allowed both parties to supplement the record. By January 25, 2016 letter, the Borough submitted a response with references to the RTKL and an affidavit by Borough Police Chief F. Richard Drumheller (Drumheller) (Affidavit). See O.R. Petition Ex. D. Requester did not supplement the record. The matter was stayed pending resolution of Rothey v. California Borough , OOR Docket No. AP 2015-1925, 2016 WL 3405240 (issued June 15, 2016) (relating to whether police department footage of a confrontation between police and a detainee in a holding cell was a public record),⁷ which involved a similar request.

On July 15, 2016, the OOR issued its final determination (Final Determination) granting Requester's appeal and ordering the Borough to produce the footage because the Borough "did not meet its burden" to show that the footage was investigative, or that "disclosure of the [footage] would threaten personal security, public safety, or the security of the [Department]." O.R. Petition Ex. F (Final Determination) at 58. The OOR also found the Request to be sufficiently specific. Id . at 61-62.

On August 15, 2016, the Borough appealed to the trial court. The trial court held a hearing on September 16, 2016, which neither Requester nor the Borough attended. See O.R. Item 5 (Borough Proposed Findings of Fact and Conclusions of Law (Statement)) at 106-126. On November 21, 2016, the trial court issued its Findings of Fact (FOF) and Order, holding therein that the Request was insufficiently specific, and that the Borough "established by a preponderance of the evidence that the [footage] is exempt from disclosure" under the RTKL's personal security, public safety, building safety/security and/or criminal and noncriminal investigation exceptions. O.R. Item 6 (Trial Ct. Order) at 1; see also O.R. Item 6 (Trial Ct. FOF) at 2-11. Requester filed a Notice of Appeal (Appeal) with the Pennsylvania Superior Court on December 15, 2016. The trial court issued its opinion on January 26, 2017. See Borough Br. Ex. B, Trial Ct. Op. By March 3, 2017 Order, the Superior Court transferred the Appeal to this Court.⁸

Discussion

1. Specificity

Requester first argues that the trial court erred by finding the Request insufficiently specific under the RTKL. Section 703 of the RTKL requires that "[a] written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested ...." 65 P.S. § 67.703.

"When considering a challenge to the specificity of a request under Section 703 of the RTKL, this Court employs a three-part balancing test[.]" Pa. Dep't of Educ. v. Pittsburgh Post-Gazette , 119 A.3d 1121, 1124 (Pa. Cmwlth. 2015). The test examines "the extent to which the request sets forth[:] (1) the subject matter of the request; (2) the scope of the documents sought; and (3) the timeframe for which records are sought." Id. "The subject matter of the request must identify ‘the transaction or activity’ of the agency for which the record is sought[ ]" and "should provide a context to narrow the search." Id. at 1125 (quoting Section 102 of the RTKL, 65 P.S. § 67.102 ). In terms of scope, the request "must identify ‘a discrete group of documents, either by type ... or by recipient.’ " Id. (quoting Carey v. Dep't of Corr. , 61 A.3d 367, 372 (Pa. Cmwlth. 2013)⁹ ). Lastly, "[t]he timeframe of the request should identify a finite period of time for which records are sought." Pittsburgh Post-Gazette , 119 A.3d at 1126 ; see also Office of the Dist. Attorney of Phila. v. Bagwell , 155 A.3d 1119, 1145 (Pa. Cmwlth. 2017) (A request is sufficiently specific where it enumerates a "clearly[-]defined universe of documents."); Askew v. Pa. Office of the Governor , 65 A.3d 989, 992 (Pa. Cmwlth. 2013) (A request lacks specificity where "it is open-ended in terms of a timeframe[ and] overly broad in the scope of documents sought[.]").

Here, in the trial court's two-sentence discussion at the end of its opinion, it ruled the Request insufficiently specific "because it seeks [footage] from the [Department] for the entirety of October 4, 2015 without identifying a relevant timeframe, department/area, involved police officer or staff." Trial Ct. FOF at 10. However, after review, this Court holds that the Request clearly identifies the subject matter of the request (Department activity and Requester), the scope of records sought (video surveillance footage) and a specific timeframe (October 4, 2015 - a single day). See Easton Area Sch. Dist. v. Baxter , 35 A.3d 1259 (Pa. Cmwlth. 2012) (30 days is a sufficiently-specific timeframe to request records). Moreover, the Borough's denial clearly reflects the Borough's knowledge of which footage would be responsive to the Request. See O.R. Petition Ex. D (Affidavit) ¶ 11.¹⁰ Thus, "the [R]equest was obviously sufficiently specific because the [Borough] has already identified potential records included within the [R]equest." Easton Area Sch. Dist. , 35 A.3d at 1265. Accordingly, the Request is sufficiently specific under Section 703 of the RTKL and it was error for the trial court to hold otherwise.

2. Exemptions

Requester next argues that the trial court erred in finding that the information requested was exempt under the RTKL and CHRIA. Initially, this Court acknowledges that "the [RTKL] is remedial legislation designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions[.]"

Bowling v. Office of Open Records , 990 A.2d 813, 824 (Pa. Cmwlth. 2010) (en banc), aff'd , 621 Pa. 133, 75 A.3d 453 (2013). "[T]he enactment of the RTKL ... was a dramatic expansion of the public's access to government documents." Levy v. Senate of Pa. , 619 Pa. 586, 65 A.3d 361, 381 (2013). The Borough is a local agency required to disclose public records under the RTKL. Section 302 of the RTKL, 65 P.S. § 67.302.

"Under the RTKL, records in possession of an agency are presumed public unless they are: (1) exempt under Section 708 of the RTKL; (2) protected by privilege; or, (3) exempt ‘under any other [f]ederal or [s]tate law or regulation or judicial order or decree.’ " Pa. State Police v. Kim , 150 A.3d 155, 157 (Pa. Cmwlth. 2016) (quoting Section 305 of the RTKL, 65 P.S. § 67.305 ). If "the requested information is exempt under Section 708(b) [of the RTKL], the information is not a ‘public record’ and is exempt from disclosure in its entirety." Dep't of Labor & Indus. v. Simpson , 151 A.3d 678, 684 (Pa. Cmwlth. 2016). Accordingly, exemptions must be narrowly construed, and the agency claiming the exemption bears the burden of proof by a preponderance of the evidence.¹¹ See 65 P.S. § 67.708(a) ; see also Bagwell ; Pa. Office of Inspector Gen. v. Brown , 152 A.3d 369 (Pa. Cmwlth. 2016) ; Simpson .

Here, the Borough denied the Request based on a number of enumerated RTKL exemptions and two CHRIA exemptions. This Court will address them in order.

a. Personal Security

Section 708(b)(1)(ii) of the RTKL states that records are exempt which, if disclosed, "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to[,] or the personal security of[,] an individual." 65 P.S. § 67.708(b)(1)(ii). "[U]nder this exception, the agency must demonstrate (1) a ‘reasonable likelihood’ of (2) a ‘substantial and demonstrable risk’ to a person's personal security." Del. Cty. v. Schaefer , 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012). In order to show a reasonable likelihood, "[a]n agency must offer more than speculation or conjecture to establish the security-related exceptions under the [RTKL]." California Borough v. Rothey , 185 A.3d 456, 468 (Pa. Cmwlth. 2018)....