Uniontown Newspapers, Inc. v. Pa. Dep't of Corr.

• Decision Date: 19 December 2016
• Docket Number: No. 66 M.D. 2015,66 M.D. 2015
• Citation: 151 A.3d 1196
• Parties: UNIONTOWN NEWSPAPERS, INC., d/b/a The Herald Standard; and Christine Haines, Petitioners v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent
• Court: Pennsylvania Commonwealth Court

151 A.3d 1196

UNIONTOWN NEWSPAPERS, INC., d/b/a The Herald Standard; and Christine Haines, Petitioners

v.PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent

No. 66 M.D. 2015

Commonwealth Court of Pennsylvania.

Argued: November 15, 2016

FILED: December 19, 2016

Michael J. Joyce, Pittsburgh, for petitioners.

Maria G. Macus, Assistant Counsel, Mechanicsburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge

OPINION BY JUDGE SIMPSON

Before this Court are cross-motions for summary relief involving enforcement of a final determination the Office of Open Records (OOR) issued pursuant to the Right-to–Know Law (RTKL).¹ Christine Haines, on behalf of Uniontown Newspapers, Inc., d/b/a The Herald Standard , (Requester) appealed to OOR when the Department of Corrections (DOC) denied her request for de-identified diagnosis data of inmates at State Correctional Institution (SCI)–Fayette. OOR rejected DOC's defenses, ordering disclosure of "all responsive records." DOC did not appeal. Arguing DOC withheld responsive records, Requester asks this Court to compel their disclosure and seeks statutory sanctions, including attorney fees and penalties, for bad faith. DOC counters that sanctions are not merited because it disclosed responsive records, albeit days after the deadline in OOR's order.

Because there is a dispute as to whether DOC provided all responsive records, we grant summary relief in part to DOC as to withholding inmate medical files and as to creation of a record, and deny summary relief as to its compliance. We deny summary relief to Requester, allowing the enforcement action to proceed for further development of the record as to whether and when DOC disclosed all responsive records in accordance with OOR's mandate. As the extent of DOC's noncompliance is unclear at this stage, penalties for bad faith are premature.

I. Background

A. Facts

In September 2014, the Abolitionist Law Center published its report, "No Escape: Exposure to Toxic Coal Waste at [SCI-] Fayette," correlating ill health of SCI–Fayette inmates to nearby toxic coal waste ("No Escape" Report). Pet'rs' Br. in Support, Ex. 6. In response, DOC undertook an internal investigation into the charges (Investigation). Director of DOC's Bureau of Health Care Services, Christopher Oppman (Director Oppman), oversaw the DOC Investigation. Drs. Paul Noel and Eugene Ginchereau spearheaded the Investigation.

On December 31, 2014, DOC issued a press release regarding the records reviewed during its Investigation and the results (Press Release). DOC noted the Department of Health (DOH) was conducting its own investigation, which was not yet final. DOH prepared its own report regarding its investigation and findings (DOH Investigative Results), submitted to DOC on February 3, 2015. DOC provided information to DOH, such as by email, including inmates' health data, to assist DOH's investigation.

B. Procedural History

Before the investigations were completed, and inspired by the "No Escape" Report, Requester submitted a request to DOC on September 25, 2014, seeking (with emphasis added):

documentation of illnesses contracted by inmates and/or staff members at SCI–Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates or staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI–Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI–Fayette with the health at other state correctional facilities, that would also be helpful.

(Request). See Pet'rs' Br. in Support at Ex. 3. After invoking an extension, DOC issued a denial, citing several exceptions in the RTKL.² Requester appealed to OOR.

Before OOR, DOC limited its argument to the medical records exception in Section 708(b)(5) of the RTKL, 65 P.S. § 67.708(b)(5), and the noncriminal investigation exception in Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17). In support, DOC submitted a declaration of Director Oppman as to the investigative nature of responsive records (OOR Declaration). Requester countered that aggregated data,³ lacking any individual identifiers, is not protected.

Reasoning that DOC did not prove either exception, OOR directed disclosure of "all responsive records ... within [30] days" (Disclosure Order).⁴ See Haines & The Herald Standard v. Dep't of Corr., OOR Dkt. AP 2014–1695 (filed December 1, 2014) (Final Determination). As to Section 708(b)(17), OOR determined DOC did not show it performed an investigation attendant to its duties; rather, the investigation was ancillary and primarily performed by DOH. As to Section 708(b)(5), OOR concluded the exception did not apply. OOR noted "[DOC] has not asserted what records are being withheld pursuant to this exemption, and has not provided any evidence on appeal to explain why these records fall under this exemption." Id. at 7. Because Requester stated "she is not seeking any identifying information," id., the medical records exception did not apply on its face, and DOC did not meet its burden. OOR also explained de-identified information is not protected by the Health Insurance Portability and Accountability Act (HIPAA), which pertains only to covered entities. 45 C.F.R. § 164.502(a). Importantly, DOC did not appeal.

After the deadline in the Disclosure Order passed, on January 6 or 7, 2015, DOC disclosed the following: statistics of inmates diagnosed with pulmonary and gastrointestinal ailments from 2010–2014, including a comparison across institutions; comparisons of natural death and cancer deaths; and, a spreadsheet of SCI–Fayette cancer deaths, by type of cancer, from 2003–2013, including comparison by institution from 2010–2013. DOC also submitted a declaration that it provided all responsive records, Post–Final Determination (FD) Declaration, 1/7/15). Pet'rs' Br. in Support at Ex. 9.

Subsequently, DOC disclosed the following: the Press Release; water analysis at SCI–Fayette; Dr. Noel's investigative summary; a redacted copy of Dr. Ginchereau's medical record review; a redacted list of cancer patients at SCI–Fayette (unspecified date); statistics regarding oncology treatments from November 2014; and, the DOH Investigative Results. DOC Br. in Support at 9.

Requester filed a petition for review asking this Court to compel DOC to disclose responsive records pursuant to the Disclosure Order. Requester also seeks attorney fees and civil penalties, alleging DOC committed bad faith.

DOC filed preliminary objections, which this Court overruled. Then, Requester filed a motion for judgment on the pleadings, which this Court denied. See Uniontown Newspapers v. Dep't of Corr.(Pa. Cmwlth., No. 66 M.D. 2015, filed December 7, 2015) (single j. op.). Senior Judge Oler held judgment on the pleadings was inappropriate because there was an issue of material fact as to whether DOC's interpretation of the Request was reasonable or whether DOC narrowed its response in bad faith.

In April 2016, Requester deposed Director Oppman and Dr. Noel as to DOC's maintenance of inmate diagnosis data, and how they obtained that data during the Investigation, and provided the data to DOH for its investigation.

The parties filed cross-motions for summary relief. Although both parties submit there are no disputes of material fact, they disagree as to whether DOC produced all responsive records in compliance with the Disclosure Order. There are no stipulations identifying the records provided to date with particularity. Requester described records in Exhibit 16 to her brief in support of summary relief that remain outstanding, and which she claims are responsive to the Request.

C. Contentions

Requester seeks judgment in her favor that DOC did not comply with the Disclosure Order because DOC did not provide a complete response or perform a good faith search as required by Section 901 of the RTKL, 65 P.S. § 67.901. She asserts DOC has a duty to disclose inmate medical files in redacted form. In addition, as source material for the Investigation and DOH's Investigative Results, Requester contends disclosure of inmate medical files is in the public interest, such that DOC should have exercised its discretion to release them.

In opposition, DOC counters that it disclosed responsive records based on its interpretation of the Request. DOC refutes that inmate medical files are subject to the Request, which sought aggregated data. DOC challenges the allegations of bad faith as grounds for sanctions when it disclosed all responsive records. DOC maintains it cooperated with Requester throughout the process, providing records not comprised in the Request, like DOH's Investigative Results.

In its motion for summary relief, DOC alleges it disclosed all records responsive to the Request. DOC contends its construction of the Request as limited to illnesses inmates contracted at SCI–Fayette is reasonable. It asserts inmate medical files are not sought by the Request, and are exempt in their entirety. DOC also claims Requester did not identify any responsive records that remain undisclosed.

II. Discussion

We are asked to discern DOC's compliance with the Disclosure Order. Requester argues responsive records remain outstanding, whereas DOC counters that it complied. In this posture, we do not question OOR's resolution of the merits. Com. v. Derry Twp., 466 Pa. 31, 351 A.2d 606, 610 (1976) (failure to appeal agency order "foreclosed any attack on its content or validity in ... enforcement proceedings").

In an enforcement action, Requester invokes jurisdiction ancillary⁵ to our appellate jurisdiction under the RTKL. See Dep't of Envtl. Prot. v. Cromwell Twp., Huntingdon Cnty., 613 Pa. 1, 32 A.3d 639 (2011) ("enforcement proceedings lie in ... appellate jurisdiction; they are not appealable as of right under 42 Pa. C.S. § 723(a)"); Pa. Human Relations Comm'n v. Scranton...