In re Johnson

254 A.3d 796

IN RE: Appeal of Mary JOHNSON From the Denial of Request Under the Right to Know Law

Appeal of: Mary Johnson

No. 97 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued April 12, 2021

Decided May 19, 2021

Dennis J. Shatto, New Cumberland, for Appellant.

Kerianne L. Baker, Assistant District Attorney, Carlisle, for Appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge (P), HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE LEAVITT

Mary Johnson (Requester) appeals an order of the Court of Common Pleas of Cumberland County (trial court) that denied her request for records related to a police welfare check on her mother. In so holding, the trial court affirmed the final determination of the Appeals Officer for the Police Department of East Pennsboro Township (Police Department) that the requested records were exempt from disclosure under Section 708(b)(17) of the Right-to-Know Law,¹ because they related to a noncriminal investigation. On appeal, Requester argues that the police officer's welfare check was not done in the course of his official duties, and, thus, the exemption for noncriminal investigation records did not apply to her record request. For the reasons that follow, we affirm.

On August 16, 2019, Requester submitted a Right-to-Know request to the Police Department for records related to a "[p]olice incident at home of Delphine Fake – 568 Magaro [Road,] Enola[,] on March 27, 2018[.] Also Delphine Fake at [p]olice [s]tation on March 27, 2018[.]" Reproduced Record at 5a (R.R. __). On August 20, 2019, the Chief of Police, Mark Green, denied the request for the stated reason that the records were related to a noncriminal investigation and, thus, exempt from disclosure under Section 708(b)(17) of the Right-to-Know Law.

On September 4, 2019, Requester appealed Chief Green's denial of the request to the Police Department's Right-to-Know Law Appeals Officer. Requester contended that her request did not relate to a noncriminal investigation "because there was nothing to investigate, and there was no indication that the record[s] resulted from a ‘complaint’ submitted to the police department." R.R. 7a. Requester asserted that the information in the records had been disclosed to her brother.

On September 26, 2019, the Appeals Officer, Chief Deputy District Attorney Courtney E. Hair LaRue, denied Requester's appeal. LaRue confirmed Chief Green's conclusion that the request related to "investigative material, notes, correspondence, and reports," which are exempt from disclosure under Section 708(b)(17) of the Right-to-Know Law. R.R. 8a. LaRue also explained that the requested records may "contain information that would constitute an unwarranted invasion of privacy to those parties involved." Id .

Requester appealed, and the trial court conducted a hearing on December 18, 2019. At the hearing, Requester testified that she made the request to find out who requested "the police to [go] to [her mother's] house[.]" Notes of Testimony, 12/18/2019, at 6 (N.T. __); R.R. 16a. She understood that the police had gone to the house "to do a welfare check[,]" i.e. , to see if her mother "was okay." N.T. 6-7; R.R. 16a-17a. Requester testified that the Police Department had already shared this information with her brother.

Chief Green testified that the Police Department sent an officer to the home of Requester's mother to do a welfare check and did not find "that there was anything wrong with her[.]" N.T. 11; R.R. 21a. He testified that the officer's report of the welfare check included sensitive information. Chief Green explained his interaction with Requester's brother as follows:

All I was willing to discuss was that the police department checked the welfare of his mother and that we did not find that there was anything wrong with her from the police department standpoint and that we would not do any further investigation on this[.]

N.T. 11; R.R. 21a. Chief Green testified that Requester's brother requested the officer's report, which he also denied.

The trial court concluded that the Police Department met its burden of proving that the records were exempt from disclosure because they related to a noncriminal investigation. The trial court explained that

the welfare check involved the police department taking a complaint from a confidential source, and the department officers having to meet with and interview [Requester's] mother to follow-up on or otherwise "investigate" the complaint and ultimately author a report on the results of that investigation.

Trial Court Op. at 1-2. After an in camera review of the requested records, the trial court confirmed that the request was for "an investigative report generated from the welfare check performed by the [Police D]epartment" and, therefore, protected from disclosure under Section 708(b)(17) of the Right-to-Know Law. Trial Court Op. at 2 n.2. Requester then filed the instant appeal.

On appeal,² Requester raises one issue. She argues that a report generated in the course of a police welfare check is a public record subject to disclosure under the Right-to-Know Law. It is not exempt as related to a noncriminal investigation because police are authorized to do only criminal investigations and motor vehicle stops. Requester also argues that rather than deny her request, the Police Department should have disclosed the records in redacted form after removing the portions that related to the investigation.

We begin with a review of the Right-to-Know Law. It requires local agencies to provide access to public records upon request. Section 302(a) of the Right-to-Know Law, 65 P.S. § 67.302(a). Section 102 of the Right-to-Know Law defines "public record" as a

record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708[, 65 P.S. § 67.708 ]; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.

65 P.S. § 67.102. A "record" is further defined under the Right-to-Know Law as:

Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.

Id.

Records in the possession of a local agency are presumed public and disclosable unless exempt under Section 708 of the Right-to-Know Law, 65 P.S. § 67.708. Section 305(a) of the Right-to-Know Law, 65 P.S. § 67.305(a). The local agency has the burden of proving that a record is exempt by a preponderance of the evidence. Section 708(a)(1) of the Right-to-Know Law, 65 P.S. § 67.708(a)(1).

Section 708(b)(17) of the Right-to-Know Law exempts the following records from disclosure:

A record of an agency relating to a noncriminal investigation, including :

(i) Complaints submitted to an agency.

(ii) Investigative materials, notes, correspondence and reports .

(iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), [as amended , 43 P.S. §§ 1421 - 1428,] known as the Whistleblower Law.

(iv) A record that includes information made confidential by law.

(v) Work papers underlying an audit.

(vi) A record that, if disclosed, would do any of the following:

(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.

(B) Deprive a person of the right to an impartial adjudication.

(C) Constitute an unwarranted invasion of privacy.

(D) Hinder an agency's ability to secure an administrative or civil sanction.

(E) Endanger the life or physical safety of an individual.

65 P.S. § 67.708(b)(17) (emphasis added).

The Right-to-Know Law does not define "noncriminal" or "investigation." This Court has held that a noncriminal investigation is "one not intended to consider prosecution and, in this context, ‘investigation’ means ‘a systematic or searching inquiry, a detailed examination, or an official probe.’ " California Borough v. Rothey , 185 A.3d 456, 465 (Pa. Cmwlth. 2018) (quoting Department of Health v. Office of Open Records , 4 A.3d 803, 811 (Pa. Cmwlth. 2010) ). "The inquiry, examination, or probe must be conducted as ‘part of the agency's official duties.’ " California Borough , 185 A.3d at 465 (quoting Department of Health , 4 A.3d at 814 ).

The parties agree that the Police Department is a local agency and that the request was for a public record. The only question is whether the records related to a noncriminal investigation and, as such, are exempt from disclosure.

Requester argues that welfare checks are not exempt as related to a noncriminal investigation because welfare checks are not part of a police department's official duties. California Borough , 185 A.3d at 465. She contends that police departments are not charged with performing health and social services. Requester Brief at 11. The Police Department was created under The First Class Township Code,³ and Requester argues that the statute limits the authority of a police officer to the conduct of criminal investigations that can lead to a fine or penalty. The Police Department responds that conducting a welfare check is an official duty because police are charged with the duty to protect the safety and welfare of the public.

The First Class Township Code authorizes a township's board of commissioners to "appoint ... the members of the township police force." Section 1401(...