Brown v. Pennsylvania Department of State

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

: No. 2221 C.D. 2014

Petitioner : Submitted: May 29, 2015

:

v. :

:

Pennsylvania Department :

of State, :

:

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN FILED: September 2, 2015

Alton D. Brown petitions for review, pro se, of the November 7, 2014,

final determination of the Office of Open Records (OOR), which dismissed Brown’s

appeal from the Pennsylvania Department of State’s (Department) open records

officer’s (Records Officer) decision to deny Brown’s request for information under

the Right-to-Know Law (RTKL).1 We affirm.

Brown filed complaints against two medical professionals licensed by

the State Board of Medicine and the State Board of Osteopathic Medicine. On

September 25, 2014, the Records Officer received Brown’s letter requesting:

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.

The Department[’s] letters to the licensee[s] that disclose the final

outcome [of] the investigations of my complaints with the [State Board

of Medicine and the State Board of Osteopathic Medicine], complaint

Nos: 13-53-12408 and 13-49-12410. I note that this information is

allowed pursuant to [40 P.S.] §1303.907(a).[2]

(Brown’s Req., 9/25/14, at 1.) In a letter dated September 30, 2014, the Records

Officer denied Brown’s request on the ground that the letters were exempt from

disclosure pursuant to section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17),3

because they were agency records related to noncriminal investigations.

2

Section 907(a) of the Medical Care Availability and Reduction of Error (MCARE) Act,

Act of March 20, 2002, P.L. 154, as amended.

3

Section 708(b)(17) of the RTKL exempts in relevant part:

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

(i) Complaints submitted to an agency.

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

...

(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.

...

65 P.S. §67.708(b)(17) (emphasis added). “This court defined an ‘investigation’ in the context of

section 708 of the RTKL as ‘a systematic or searching inquiry, a detailed examination, or an official

probe.’” Department of Public Welfare v. Chawaga, 91 A.3d 257, 258-59 (Pa. Cmwlth. 2014)

(citation omitted).

2

On October 17, 2014, Brown appealed the Records Officer’s denial to

the OOR, and the OOR invited Brown and the Department to supplement the record.

The Department submitted a response to Brown’s appeal and two sworn affidavits

from Bernadette Paul, the deputy chief counsel of the Department’s prosecution

division. In both affidavits, Paul stated that “[t]he Department’s Bureau of

Enforcement and Investigation (BEI) conducts investigations on behalf of the

Department’s Bureau of Professional and Occupational Affairs (BPOA) and its 29

professional licensing boards,” including the State Board of Osteopathic Medicine

and the State Board of Medicine. (Paul Aff., 10/20/14, at 1.)4 Paul further stated that

the BEI had investigated a complaint against an osteopathic physician and a

complaint against a medical doctor and that:

[T]he assigned prosecuting attorney ultimately closed this

matter without filing any formal disciplinary charges. No

fine or civil penalty, suspension, modification or revocation

of a license was imposed. Providing access to the records

from this investigation would disclose the institution,

progress or result of the investigation by, among other

things, showing what avenues of investigation were pursued

or not.

(Id.)

On November 7, 2014, the OOR issued a final determination denying

Brown’s appeal. The OOR determined that the Department had proven that the

4

Both affidavits are dated October 20, 2014, and contain identical language. The affidavits

vary to the extent that one addresses the Department’s investigation of a State Board of Medicine

licensee and the other addresses the Department’s investigation of a State Board of Osteopathic

Medicine licensee.

3

letters Brown requested were exempt under section 708(b)(17)(vi)(A) of the RTKL,

65 P.S. §67.708(b)(17)(vi)(A).5 The OOR also determined that section 907(a) of the

MCARE Act, which exempts letters to a licensee that disclose the final outcome of an

investigation from the MCARE Act’s confidentiality provision, did not preclude the

records’ exemption under the RTKL. Brown now petitions this court for review.6

First, Brown argues that the Department did not meet its burden of

proving that the letters that Brown requested were exempt under section

708(b)(17)(vi)(A) of the RTKL as agency records related to a noncriminal

investigation. Specifically, Brown argues that the Department’s affidavits do not

constitute sufficient evidence because they are conclusory. We disagree.

Commonwealth agencies “shall provide public records in accordance

with [the RTKL].” Section 301(a) of the RTKL, 65 P.S. §67.301(a). Section 102 of

the RTKL defines a “record” as “[i]nformation . . . 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.” 65 P.S. §67.102.

A “public record” is defined as:

5

The Department’s response to Brown’s appeal asserted that the letters that Brown

requested were also exempt under section 708(b)(17)(i) and (ii) of the RTKL, 65 P.S.

§67.708(b)(17)(i) and (ii). (Dep’t Resp. at 4.) However, the OOR only addressed the exemption at

section 708(b)(17)(vi)(A) of the RTKL.

6

Our standard of review under the RTKL is de novo, and we may adopt the agency’s

findings or substitute them with our own. Bowling v. Office of Open Records, 75 A.3d 453, 474

(Pa. 2013). Our scope of review under the RTKL is plenary, and we may expand the record through

additional hearings or remand. Id. at 476.

4

A record . . . of a Commonwealth or local agency that: (1)

is not exempt under section 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.

Id.

An agency bears the burden of proving, by a preponderance of the

evidence, that a record is exempt from disclosure under one of the enumerated

exceptions. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). “Testimonial

affidavits found to be relevant and credible may provide sufficient evidence in

support of a claimed exemption.” Heavens v. Pennsylvania Department of

Environmental Protection, 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013). “‘The affidavits

must be detailed, nonconclusory, and submitted in good faith.’” Office of the

Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc) (citation

omitted).

Here, Brown requested letters disclosing the results of the Department’s

noncriminal investigations of two licensees. These records are, by the very terms of

Brown’s request, exempt from disclosure under section 708(b)(17)(vi)(A) of the

RTKL, which exempts records that would reveal the results of an agency’s

noncriminal investigation. Furthermore, Paul stated in the affidavits that the

prosecuting attorney closed the investigations without imposing civil penalties or

license restrictions on the licensees. The affidavits also explain how the requested

records are exempt under section 708(b)(17)(vi)(A) of the RTKL, rather than merely

presuppose the exemption in a conclusory statement. Therefore, the Department met

5

its burden of proving that the requested letters were exempt from disclosure under

section 708(b)(17)(vi)(A) of the RTKL.7

Next, Brown argues that the Department failed to offer evidence that

public policy supported denying his request. Section 506(c) of the RTKL provides:

An agency may exercise its discretion to make any

otherwise exempt record accessible . . . if all of the

following apply:

(1) Disclosure of the record is not prohibited under

any of the following:

(i) Federal or State law or regulation.

(ii) Judicial order or decree.

(2) The record is not protected by a privilege.

(3) The agency head determines that the public

interest favoring access outweighs any individual,

agency or public interest that may favor restriction of

access.

65 P.S. §67.506(c) (emphases added). “Although [s]ection 506(c) [of the RTKL]

grants an agency the discretion to release an otherwise exempt record under certain

circumstances, it does not require an agency to do so.” Department of Health v.

7

Brown also argues that the OOR erred in concluding that the letters were exempt from

disclosure because the letters were a routine function of the Department. However, because Brown

failed to raise this issue before the OOR, it is waived. See Fort Cherry School District v. Coppola,

37 A.3d 1259, 1261-62 (Pa. Cmwlth. 2012) (holding that the requester waived an issue by failing to

raise it before the OOR).

6

Office of Open Records, 4 A.3d 803, 815 (Pa. Cmwlth. 2010). Brown notes that in

Department of Health, this court considered “strong public policy considerations” in

addressing the scope of section 708(b)(17) of the RTKL. Id. at 811. However, we

have not held that agencies must provide evidence of public policy considerations

when denying access to a record that is exempt under state or federal law. Here, the

letters that Brown requested were exempt from disclosure under section 708(b)(17) of

the RTKL, and the Department denied Brown’s request on that basis. Therefore, the

Department was not required to offer evidence that public policy favored denying

Brown’s request.

Finally, Brown argues that the exception in section 708(b)(17)(vi)(A) of

the RTKL does not apply to the letters he requested because such letters are subject to

disclosure under section 907(a) of the MCARE Act.8 We disagree.

“The RTKL distinguishes between the public nature of records and

access to records.” Department of Labor and Industry v. Heltzel, 90 A.3d 823, 831

(Pa. Cmwlth. 2014) (en banc). Section 306 of the RTKL provides that “[n]othing in

this act shall supersede or modify the public or nonpublic nature of a record or

8

Section 907(a) of the MCARE Act provides:

All documents, materials or information utilized solely for an investigation

undertaken by the State Board of Medicine or State Board of Osteopathic Medicine

or concerning a complaint filed with the State Board of Medicine or State Board of

Osteopathic Medicine shall be confidential and privileged. . . . This subsection shall

not apply to letters to a licensee that disclose the final outcome of an investigation or

to final adjudications or orders issued by the licensure board.

40 P.S. §1303.907(a).

7

document established in Federal or State law.” 65 P.S. §67.306. In Heltzel, 90 A.3d

at 831-32, this court held that:

[T]he “nature” of a document implicates the innate or

intrinsic characteristics of a record, its essence, without

regard to surrounding circumstances.

Once “established” by [another] statute as “public,” a

record is no longer subjected to the traditional public record

analysis under the RTKL. Given this significant

consequence, a statute should be clear when it establishes

the public nature of records.

Section 3101.1 of the RTKL provides that a provision of the RTKL “regarding access

to records” will not apply where it conflicts with state or federal law. 65 P.S.

§67.3101.1. Section 701(a) of the RTKL states that “[u]nless otherwise provided by

law, a public record . . . shall be accessible . . . in accordance with [the RTKL].” 65

P.S. §67.701(a) (emphases added).

Here, section 907(a) of the MCARE Act states that materials used solely

in State Board of Medicine or State Board of Osteopathic Medicine investigations are

“confidential and privileged.” 40 P.S. §1303.907(a). It also provides that this

general rule “shall not apply to letters to a licensee that disclose the final outcome of

an investigation.” Id. Because records that are not privileged are explicitly included

in the definition of “public records” in section 102 of the RTKL, section 907(a) of the

MCARE Act establishes the public nature of the requested letters. However, the

MCARE Act does not state a means by which the public may access the requested

8

letters. As we noted in Heltzel, the public nature of a record is distinct from public

access to that record. The RTKL’s access provisions, including its exceptions to

access, apply in the absence of a conflicting MCARE Act provision. Therefore, the

access exception in section 708(b)(17)(vi)(A) of the RTKL is applicable here.9

Accordingly, we affirm.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge

9

Recently, we addressed the distinction between public nature and public access in McCord

v. Pennsylvanians for Union Reform, 100 A.3d 755 (Pa. Cmwlth. 2014). There, in ruling on

preliminary objections, we noted that a provision of The Administrative Code of 1929 “appeared”

to establish the public nature of a record exempted by section 708(b) of the RTKL. Id. at 762.

However, we stated that because the provision “does not address public access to the [record], it

may be found not to conflict with the RTKL’s access provisions and, therefore, the RTKL’s access

provisions, including its statutory exemptions, could apply.” Id.

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

: No. 2221 C.D. 2014

Petitioner :

:

v. :

:

Pennsylvania Department :

of State, :

:

Respondent :

ORDER

AND NOW, this 2nd day of September, 2015, we hereby affirm the

November 7, 2014, final determination of the Office of Open Records.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge