Pa. State Police v. Grove

• Decision Date: 20 June 2017
• Docket Number: No. 25 MAP 2016,25 MAP 2016
• Citation: 161 A.3d 877
• Parties: PENNSYLVANIA STATE POLICE, Appellant v. Michelle GROVE, Appellee
• Court: Pennsylvania Supreme Court

161 A.3d 877

PENNSYLVANIA STATE POLICE, Appellant

v.Michelle GROVE, Appellee

No. 25 MAP 2016

Supreme Court of Pennsylvania.

ARGUED: September 14, 2016

DECIDED: June 20, 2017

Melissa Bevan Melewsky, Esq., Pennsylvania NewsMedia Association, for PA NewsMedia Association and Reporters Committee for Freedom of the Press, Amicus Curiae.

J. Chadwick Schnee, Esq., Office of Open Records, for Office of Open Records, Amicus Curiae.

Nolan B. Meeks, Esq., Andrew Michael Rongaus, Esq., Denise Joy Smyler, Esq., for Pennsylvania State Police, Appellant.

Scott Everett Coburn, Esq., PA State Assoc. of Twp. Supervisors & County Commissioners Assoc. of PA, for Appellant Amicus Curiae.

Helen A. Stolinas, Esq., Bradford County Public Defender's Office, for Grove, Michelle, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to consider whether video components of motor vehicle recordings (MVRs) created by appellant Pennsylvania State Police (PSP) are exempt from disclosure to the public as criminal investigative records under the Right-to-Know Law, 65 P.S. § 67.101 –67.3104 (RTKL) or the Criminal History Record Information Act, 18 Pa.C.S. §§ 9101 –9183 (CHRIA). We also consider whether these recordings implicate provisions of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S. §§ 5701 –5782 (Wiretap Act). The Commonwealth Court held MVRs generally are public records subject to disclosure, and affirmed in part the decision of the Office of Open Records (OOR) directing PSP to provide MVRs to appellee Michelle Grove (Grove). The Commonwealth Court also reversed in part, remanding the matter to the OOR with instructions for redaction of the audio portions of the MVRs before disclosure. We now affirm in part and reverse in part.

I. Background

Section 301 of the RTKL provides Commonwealth agencies like PSP must provide copies of all public records upon request. 65 P.S. § 67.301. On March 24, 2014, Grove made a request to PSP pursuant to Section 301 for "a copy of the police report, and any video/audio recordings taken by the officers" at the scene of a two-vehicle accident in Potter Township, Centre County, Pennsylvania.¹ Grove v. Pa. State Police , 2014 WL 2801575, at *1 (Pa. Off. Open Rec., June 2014). The recordings at issue are two MVRs that were generated when two PSP troopers, Trooper Vanorden and Trooper Thomas, responded to the scene of the accident. Affidavit of William Rozier at ¶¶ 10–11.

On May 1, 2014, PSP, by its Deputy Open Records Officer, Lissa Ferguson, sent a letter response to Grove's request. The response provided Grove with a Public Information Release Report, which revealed one driver in the accident received a citation for failing to yield the right-of-way when entering or crossing a roadway (75 Pa.C.S. § 3324 ), and the other driver received a citation for failure to use seatbelt (75 Pa.C.S. § 4581 ). Public Information Release Report; and Rozier Affidavit at ¶ 20. PSP's letter response also informed Grove her request for the MVRs was denied on the basis the recordings were exempt from any public disclosure as: (1) "criminal investigative records" under Section 708(b)(16) of the RTKL,² and "investigative information" under Section 9106(c)(4) of CHRIA;³ and (2) records "pertaining to audio recordings, telephone or radio transmissions received by dispatch personnel, including 911 recordings," under Section 708(b)(18)(i) of the RTKL.⁴ PSP included a verification with its letter response, also executed by Lissa Ferguson (the Ferguson Verification). The Ferguson Verification did not include a description of the MVRs or the nature or purpose of the recordings. In addressing the request for release of the MVRs, the Ferguson Verification concluded the MVRs fell under the exemption for "audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings" in Section 708(b)(18)(i) of the RTKL. Ferguson Verification at ¶ 6. The Ferguson Verification did not reference any other section of the RTKL or CHRIA with respect to the MVRs.⁵

On May 24, 2014, Grove filed an appeal to the OOR from PSP's letter response denying the release of the MVRs. The OOR invited the parties to supplement the record. On May 30, 2014, PSP provided an unsworn position statement from PSP's counsel, Jordan G. Spahr, Esquire, which incorporated the Ferguson Verification by reference. The PSP alleged in its position statement the MVRs are criminal investigative records, and thus exempt from disclosure under Section 708(b)(16) of the RTKL. Grove , 2014 WL 2801575 at *1 ; see also PSP Position Statement at 1–2.⁶ Accordingly, PSP's position statement and incorporated Ferguson Verification collectively provided two bases for refusal to release the MVRs to Grove: (1) Section 708(b)(16) of the RTKL as criminal investigative records; and (2) Section 708 (b)(18)(i) of the RTKL as a record received by emergency dispatch.

Grove also submitted additional materials in support of her request, including her own position statement and two photographs of the accident scene, depicting the site plus skid marks from the collision and the damage to one of the vehicles. Grove , 2014 WL 2801575 at *1. In her position statement, Grove noted she arrived at the scene of the accident before the troopers and remained there until after the officers left. She recounts her observations at the scene of the accident, including her own description of the conversations that occurred between the officers and the drivers and bystanders. Position Statement of Michelle Grove, dated May 30, 2014. Grove's photographs show the accident scene as a public street in front of residential homes. Id.

On June 17, 2014, the OOR issued its Final Determination, directing PSP to provide complete copies of the MVRs to Grove. Grove , 2014 WL 2801575 at *3. The OOR determined the Ferguson Verification contained conclusory statements denying disclosure and was thus insufficient to show the recordings included transmissions received by emergency dispatch personnel as required for exemption under Section 708(b)(18)(i) of the RTKL. Id. , citing Office of the Governor v. Scolforo , 65 A.3d 1095, 1103 (Pa. Cmwlth 2013) ("[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records."). The OOR further noted, to the extent PSP argued in its unsworn position statement submitted by PSP's counsel that the MVRs are exempt as criminal investigative records under Section 708(b)(16) of the RTKL, the unsworn statement was not a competent basis for exemption. Id. , citing Housing Authority of the City of Pittsburgh v. Van Osdol , 40 A.3d 209 (Pa. Cmwlth. 2012) (holding statements of counsel not competent evidence). The OOR concluded PSP failed to submit any evidence the MVRs were investigative records and thus failed to meet its burden they were exempt from disclosure under either Section 708(b)(16) or Section 708(b)(18)(i) of the RTKL.

PSP appealed to the Commonwealth Court, arguing the MVRs qualify as "criminal investigative records" and are therefore exempt from disclosure under Section 708(b)(16) of the RTKL, and also renewing its argument from the May 1, 2014 letter response that the records are exempt as "investigative records" under Section 9106(c)(4) of CHRIA.⁷ PSP further argued, for the first time, disclosure of the MVRs under the RTKL would violate the Wiretap Act. Additionally, in light of the OOR's final determination that PSP failed to meet its burden to prove the MVRs were exempt as criminal investigative records under Section 708(b)(16) of the RTKL, PSP sought leave to supplement the record with a sworn affidavit of its Open Records Officer, William Rozier (the Rozier Affidavit), in further support of that argument.

The Commonwealth Court first considered PSP's request to supplement the record with the Rozier Affidavit. The court recognized it exercises plenary, de novo review of OOR decisions involving Commonwealth agencies, such as PSP. Pennsylvania State Police v. Grove , 119 A.3d 1102, 1105 (Pa. Cmwlth. 2015), citing Bowling v. Office of Open Records, 621 Pa. 133, 75 A.3d 453, 477 (2013) (standard of review of appeals from determinations made by appeals officers under the RTKL is de novo and the scope of review is broad or plenary) (additional citations omitted). Considering its de novo standard of review, the court noted "[w]here the record before OOR is inadequate to determine whether requested material is exempt from disclosure, this Court has discretion to permit a party to enlarge the record on appeal and to consider additional evidence." Id. , citing Bowling , 75 A.3d at 476 ; Carey v. Pa. Dep't of Corrs . , 61 A.3d 367, 371 n.3, 377 (Pa. Cmwlth. 2013) (additional evidence may be taken to ensure sufficient record for adequate appellate review). The court noted the record as presented before the OOR did not contain any information regarding the MVRs, including their content or the circumstances under which they are created, and the PSP's supplemental Rozier Affidavit did contain such details.

Considering whether supplementing the record was proper, the court first acknowledged PSP was not permitted to ignore its burden before the OOR to present evidence to support its position. Id. at 1106, citing Pennsylvania Tpk. Comm'n v. Murphy , 25 A.3d 1294, 1297–98 (Pa. Cmwlth. 2011) (denying supplementation of record on an appeal as an attempt to obtain "a proverbial second bite of the apple" where there was no apparent reason for the failure to submit the additional affidavits to OOR). However, the court acknowledged PSP had relied on prior decisions of the OOR in responding to Grove's records request, and those prior decisions held MVRs were exempt from disclosure under Section 708(b)(16) of the RTKL as criminal investigative records.⁸ Id. The court noted PSP's reliance on these prior decisions was not misplaced, as those cases had not...