Cal. Borough v. Rothey

• Decision Date: 25 April 2018
• Docket Number: No. 496 C.D. 2017,496 C.D. 2017
• Parties: CALIFORNIA BOROUGH, Appellant v. Andrew Glenn ROTHEY
• Court: Pennsylvania Commonwealth Court

185 A.3d 456

CALIFORNIA BOROUGH, Appellant

v.Andrew Glenn ROTHEY

No. 496 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued February 5, 2018

Decided April 25, 2018

Thomas P. Agrafiotis, Charleroi, for appellant.

Andrew G. Rothey, Pittsburgh, for appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

California Borough (Borough) appeals a decision of the Court of Common Pleas of Washington County (trial court) affirming a final determination of the Office of Open Records (OOR) that a video recording of a holding cell at the Borough Police Department was disclosable. The video records a confrontation between a police officer and a detainee in the cell. The Borough contends that the OOR lacked jurisdiction to hear the requester's appeal; that the trial court erred in holding otherwise; and that OOR's final determination was legally invalid. For the following reasons, we reverse.

Background

On August 7, 2015, Andrew Glenn Rothey (Requester) submitted a written request to the Borough for the

[v]ideo recording of all interaction between Adam Logan and [ ] Borough Police Officer Justin Todd Shultz in a holding cell in the [ ] Police Department on November 9, 2013, particularly the physical altercation between Mr. Logan and Officer Shultz.

Reproduced Record at 11a (R.R. ___). The requested video was produced by a surveillance camera installed in the holding cell where Logan was awaiting arraignment on criminal charges. The video shows Shultz grabbing Logan by the throat and slamming him onto a bench. Upon viewing the video, Police Chief Rick Encapera discharged Shultz and filed criminal charges of official oppression and simple assault against him. Shultz pled guilty to one count of simple assault on May 5, 2015.

On September 14, 2015, the Borough denied Requester access to the video recording of the incident. It asserted that the video related to a criminal and noncriminal investigation of Shultz and, therefore, was exempt from disclosure under Section 708(b)(16) and (17) of the Right-to-Know Law.¹ Alternatively, the Borough asserted that the video was exempt from disclosure under Section 708(b)(1)–(3) of the Right-to-Know Law² because release of the video "would be reasonably likely to jeopardize or threaten public safety ..., and/or to endanger physical security ..., and poses [a] substantial and demonstrable risk to personal security[.]" R.R. 12a. Finally, the Borough asserted that Section 9106(c)(4) of the Criminal History Record Information Act (CHRIA)³ prohibited it from releasing the video to any person other than a criminal justice agency. The denial letter advised Requester that his appeal, if any, should be filed with the OOR.

OOR's Final Determination

Requester appealed to the OOR arguing, among other things, that the exemptions claimed by the Borough were no longer applicable because the requested video had been disclosed to the media. In response, the Borough reiterated its grounds for denial and submitted a sworn affidavit of Chief Encapera. The Borough further asserted that Section 503(d)(2) of the Right-to-Know Law⁴ invested the district attorney's appointed appeals officer, not the OOR, with jurisdiction to hear the subject appeal.

The OOR held a hearing, where Encapera, the sole witness, testified. He described the holding cell as a "square cubical" located inside the Police Department "with a locked door[,] a glass window to look in[, and] a bench seated in it with leg shackles on each side to secure prisoners." Notes of Testimony, 2/8/2016, at 17 (N.T. ___); R.R. 47a. A surveillance camera is installed in the "upper right-hand corner of the cell[, which] is designed to show the prisoner as [he's] sitting in the cell." N.T. 18; R.R. 48a. Encapera testified that the camera is recording "all the time 24/7," regardless of whether a prisoner is in the holding cell. N.T. 30; R.R. 60a.

Encapera testified about the incident of November 9, 2013. Officers who witnessed the incident reported it to Encapera, who then viewed the video recording, downloaded it and brought it to the district attorney for review. The district attorney and Encapera agreed that Shultz's "actions were criminal in nature." N.T. 38; R.R. 68a. Encapera fired Shultz and filed criminal charges against him.

Encapera acknowledged that the video recording was not created for the purpose of investigating Shultz or with an "expectation that a criminal act was about to occur in the holding cell;" rather, the camera was there to ensure "the safety of the prisoner." N.T. 39; R.R. 69a. Encapera testified that the camera also ensures the safety of the police officers because they can monitor the holding cell to ensure that prisoners are "not trying to conceal anything or attempting to produce any type of weapon that wasn't found during the normal search." N.T. 21; R.R. 51a. Encapera further testified that were the video to be distributed publicly, a future prisoner might learn where the blind spots in the holding cell are located and use that knowledge to conceal drugs or weapons not discovered by the police.

Encapera acknowledged that on December 4, 2013, he permitted a local news reporter from WPXI to view the video at the police station. He also permitted a reporter from another station, WTAE, to film a news segment in the holding cell where the incident occurred. Encapera testified that the WTAE reporter was allowed to do only "spot shots," as opposed to a "complete shot[,]" of the holding cell. N.T. 60; R.R. 90a. Both the WPXI and WTAE news segment videos were submitted into evidence to the OOR.

On June 15, 2016, the OOR issued a final determination granting Requester's appeal. It held that it had jurisdiction over the appeal because the requested video was not a "criminal investigative record" within the meaning of Section 503(d)(2) of the Right-to-Know Law, 65 P.S. § 67.503(d)(2). Crediting Encapera's testimony, the OOR found that the video was not recorded "for the purpose of furthering a criminal investigation[ ]" but rather "for the safety of the prisoner." OOR Final Determination at 6; R.R. 116a. Because the video was not created "merely or primarily" for investigative purposes, the OOR rejected the Borough's arguments that the video was exempt from disclosure under the criminal and noncriminal investigation exceptions in Section 708(b)(16) and (17) of the Right-to-Know Law, 65 P.S. § 67.708(b)(16)–(17), or Section 9106(c)(4) of CHRIA, 18 Pa. C.S. § 9106(c)(4). OOR Final Determination at 14–19; R.R. 124a–29a.

The OOR rejected Requester's argument that the Borough waived its right to assert an exemption because it had already disclosed the video to the media. The OOR reasoned that the Borough showed the news reporters the video recording "outside the parameters of a [Right-to-Know Law] request[,]" which does not " ‘belie the real security concerns’ the Borough has in releasing the video as a public record." OOR Final Determination at 7; R.R. 117a. However, the OOR found Chief Encapera offered no more than "mere speculation" that a release of the video would be "reasonably likely" to impose a substantial risk of physical harm to personal security; jeopardize public safety; or endanger the physical security of the building. OOR Final Determination at 9; R.R. 119a. The OOR held that the Borough failed to demonstrate that the video was exempt from disclosure under the security-related exceptions set forth in the Right-to-Know Law.

Trial Court Decision

On July 15, 2016, the Borough filed a petition for review with the trial court, again asserting various exceptions under the Right-to-Know Law, confidentiality under CHRIA, and the OOR's lack of jurisdiction to hear Requester's appeal. The trial court held a hearing, where Encapera again testified as the sole witness. By order of March 21, 2017, the trial court affirmed the OOR's final determination. The trial court agreed with the OOR that Encapera's testimony consisted of "conjecture and speculation[,]" which was not sufficient to show that release of the video would be "reasonably likely" to cause security problems. Trial Court op. at 6; R.R. 200a.

In so holding, the trial court relied upon Pennsylvania State Police v. Grove , 119 A.3d 1102 (Pa. Cmwlth. 2015) ( Grove I ), affirmed in part, reversed in part and remanded , 161 A.3d 877 (Pa. 2017) ( Grove II ),⁵ to conclude that the video was not a criminal investigative record. The trial court held the video was disclosable because it was not created "to report on a criminal investigation or set forth or document evidence in a criminal investigation or steps carried out in a criminal investigation." Trial Court op. at 6–7 (citing Grove I , 119 A.3d at 1108 ); R.R. 200a–01a. Likewise, the trial court rejected the Borough's claim that the video was exempt from disclosure as a noncriminal investigative record. Concluding that the video was not a criminal investigative record, the trial court held that the OOR, not the district attorney's designated appeals officer, had jurisdiction to hear Requester's appeal under Section 503 of the Right-to-Know Law. The Borough appealed to this Court.⁶

Appeal

On appeal, the Borough presents eight issues for our consideration, which we combine into three for clarity.⁷ The Borough first argues the trial court erred in ruling that the OOR had jurisdiction to hear Requester's appeal. Second, the Borough argues that the trial court erred in concluding that the video recording was not exempt from disclosure under the criminal and noncriminal investigation exceptions in Section 708(b)(16) and (17) of the Right-to-Know Law, 65 P.S. § 67.708(b)(16)–(17), or Section 9106(c)(4) of CHRIA, 18 Pa. C.S. § 9106(c)(4). Finally, the Borough argues that the trial court erred in ruling that the public safety exception, physical security exception, and personal security exception set forth in Section 708(b)(1)–(3) of the Right-to-Know Law, 65...