Gutman v. Pennsylvania State Police

• Decision Date: 22 June 1992
• Citation: 148 Pa.Cmwlth. 567,612 A.2d 553
• Parties: , 20 Media L. Rep. 1447 Richard GUTMAN, Petitioner, v. PENNSYLVANIA STATE POLICE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 553

612 A.2d 553

148 Pa.Cmwlth. 567, 20 Media L. Rep. 1447

Richard GUTMAN, Petitioner, v. PENNSYLVANIA STATE POLICE, Respondent.

Commonwealth Court of Pennsylvania.

Argued Sept. 11, 1991.

Decided June 22, 1992.

Richard Gutman, petitioner, pro se.

Joanna Reynolds, for respondent.

Before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, McGINLEY, SMITH and PELLEGRINI, JJ.

DOYLE, Judge.

Richard Gutman appeals a decision of the Pennsylvania State Police denying his request for documents ¹ made pursuant to the Pennsylvania Right to Know Act (Act). ²

By letter dated January 23, 1991, Gutman requested the State Police to disclose all departmental regulations, directives, general orders and special orders concerning:

1. Statements of the responsibilities of the various bureaus and divisions.

2. Use of deadly force.

3. Sobriety checkpoints, drug checkpoints and interdiction programs.

4. Intelligence-gathering and file-keeping regarding political activity, subversive activity and terrorism.

On January 28, 1991, the State Police denied this request on the the grounds it had asserted in previous correspondence denying two prior document requests Gutman had made on October 2, 1990 and October 26, 1990. In a letter dated October 23, 1990, the State Police had rejected Gutman's first request on the grounds that the requested documents were not public records as defined by the Act. In a letter dated January 11, 1991, the State Police denied Gutman's second request for the following reasons:

Unfortunately, we must deny your request, unless we have the benefit of knowing the context in which your request is made. While some of this Department's records may constitute "public records" under the Act, we feel entitled to know that the records do not fall within any of the Act's exceptions, prior to authorizing disclosure. Your request does not provide sufficient information upon which to base our decision.

On February 7, 1991, Gutman appealed to this Court the State Police's January 28, 1991 denial of his January 23, 1991 document request.

Gutman contends first that he has a right under the Act to access the documents requested in his January 23, 1991 letter, and second, that the State Police improperly considered his motive for requesting disclosure when it denied access to the documents in question.

Section 2 of the Act, 65 P.S. § 66.2, provides that "[e]very public record of an agency shall ... be open for examination and inspection by any citizen of the Commonwealth...." The legislature intended this Act to allow citizens of the Commonwealth access to public records regardless of their interest in seeking the disclosure; a citizen may not be denied access to public records because of lack of interest or for a lack of a "legitimate" purpose. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958). Section 1(2) of the Act, 65 P.S. § 66.1, defines the term "public record" as follows:

Any account, voucher or contract dealing with receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records" shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or any paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State municipal authorities Federal funds, excepting therefrom however the record of any conviction for any criminal act.

Section 1(2) of the Act states, inter alia, that "any minute, order or decision by an agency fixing the personal property rights, privileges, immunities, duties or obligations of any person or group of persons," falls within the definition of public record. (Emphasis added.) Section 1(2) has been broadly construed to require only some form of action by an agency that has an effect on someone. Pastore v. Insurance Department, 125 Pa.Commonwealth Ct. 611, 558 A.2d 909 (1989). In Lamolinara v. Barger, 30 Pa.Commonwealth Ct. 307, 311, 373 A.2d 788, 790 (1977), we wrote:

[W]e do not read the term "fixing" to require the affirmative establishment or creation of rights, privileges, immunities, duties or obligations. Although such a narrow construction would be quite possible, we believe it in keeping with the spirit and intent of the Right-To-Know Law to construe "public record" to include decisions which establish, alter, abolish, or deny rights, privileges, immunities, duties or obligations; in short, decisions which affect them.

Gutman contends that he should be given access to all the records requested in his January 23, 1991 letter. In that letter, Gutman sought access to four classes of State Police regulations, directives, general orders and special orders: (1) statements of the responsibilities of the various bureaus and divisions; (2) the use of deadly force; (3) sobriety and drug checkpoints and drug interdiction programs; and (4) intelligence gathering and file keeping regarding political activity, subversive activity, and terrorism. Gutman argues that the documents he seeks constitute "orders" or "decisions" and are, thus, discoverable public records.

Here, the regulations and policy statements sought by Gutman affect the State Police by establishing the duties and obligations of its personnel. In our view, therefore, the regulations and policy statements which are promulgated by the State Police are decisions of that agency fixing the duties and obligations of that police force. Thus, we conclude that all the documents requested by Gutman are public records within the definition in Section 1(2) of the Act.

Because the documents requested by Gutman are public records, we must now determine whether those documents must be excluded from discovery under the exceptions under Section 1(2) of the Act. Pastore. Gutman's request for regulations concerning the responsibilities of the various State Police bureaus and divisions and for regulations concerning the use of deadly force, are not within the scope of any of the exceptions to the Act; hence, we hold that the State Police erred in denying him access to these documents. ³

On the other hand, Gutman may not have access to any documents concerning sobriety and drug checkpoints and drug interdiction, or documents concerning intelligence gathering regarding political activity, subversive activity and terrorism. We hold that these documents are within the scope of the exception excluding from discovery "communications ... which would disclose the institution, progress or result of an investigation undertaken by an agency [the State Police] in the performance of its official duties...." See Sullivan v. City of Pittsburgh, 127 Pa.Commonwealth Ct. 339, 561 A.2d 863 (1989), petition for allowance of appeal denied, 525 Pa. 591, 575 A.2d 120 (1990). Further, allowing individuals to discover such procedures and anticipate or discern drug and alcohol checkpoints could lead to tip-offs, thus endangering police personnel. Accordingly, discovery would also be precluded by exception three. And, similar risk also exists with regard to police activities geared toward preventing terrorism and other related law enforcement problems.

Accordingly, the order of the State Police is reversed insofar as it denied Gutman access to regulations concerning the duties of the State Police bureaus and divisions, and general regulations concerning the use of deadly force. The order is affirmed insofar as it denied Gutman access to information concerning alcohol and drug checkpoints and interdiction programs, and intelligence reports on political activity, subversive activity, and terrorism.

ORDER

NOW, June 22, 1992, the order of the Pennsylvania State Police in the above-captioned matter is reversed insofar as it denied Gutman access to regulations concerning the duties of the State Police bureaus and divisions, and general regulations concerning the use of deadly force. The order is affirmed insofar as it denied Gutman access to information concerning alcohol and drug checkpoints and interdiction programs, and intelligence reports on political activity, subversive activity and terrorism.

SMITH, Judge, concurring and dissenting.

I concur in the result reached by the Majority that Richard Gutman may not gain access to State Police departmental regulations, directives, and general and special orders concerning sobriety and drug checkpoints and interdiction programs, and intelligence gathering related to political and subversive activity and terrorism for the reason that Gutman has failed to demonstrate that these documents are subject to disclosure under the Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4, commonly referred to as the Pennsylvania Right-to-Know Act (Act). I dissent, however, from the Majority's determination that all other records requested by Gutman concerning statements of the responsibilities of various bureaus and divisions within the State Police and use of deadly force constitute public records subject to disclosure.

A document must pass a two-part analysis to constitute a public record subject to disclosure. The Majority opinion, however, totally avoids this analysis in leaping to its generalization that the...