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HomeMy WebLinkAbout13-6245 Supreme Ca &116 o ennsylvania Cour of Cofnmori ` IeaS For Prothonotary Use Only: Ci1-Ccw�rb t Docket No �. County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the, f ling and sen*e of pleadings or other papers as required by laxv or rules of court. Commencement of Action: S 0 Complaint 0 Writ of Summons 0 Petition S 6-7. ' Transfer from Another Jurisdiction E] Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: kc 1 4 T` Are money damages requested? (J Yes X No Dollar Amount Requested: Owithin arbitration limits 04 : (check one) ;_r outside arbitration limits ,s d ' Is this a Class Action Suit? 0 Yes K No Is this an MDJAppeal? Yes ; No Name of Plaintiff/Appellant's Attorney: Check here if you have no attorney (are a Self - Represented [Pro Sep Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that - you consider most important. k S A TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ON s El Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment Motor Vehicle 0 Debt Collection: Other Board of Elections ? zy 0 Nuisance 0 Dept. of Transportation r M 0 Premises Liability 0 Statutory Appeal: Other Product Liability (does not include mass tort) 0 Employment Dispute: aE r 0 Slander/Libel/Defamation Discrimination a 0 Other: 0 Employment Dispute: Other 0 Zoning Board othev 0 Other: MASS TORT . 0 Asbestos 0 Tobacco 2.c 0 Toxic Tort - DES r 0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment Common Law /Statutory Arbitration B s' 0 Eminent Domain/Condemnation Declaratory Judgment !! Ground Rent Mandamus Landlord/Tenant Dispute I_� Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto Dental 0 Partition Replevin 0 0 , 0 Legal 0 Quiet Title 0 Other: 0 Medical : Other: 0 Other Professional: A Updated 1/1/2011 In the court of Common Pleas of Cumberland County, Pennsylvania Joshua A Monighan No. y J� elD l t e l� Vs. / (: Richard E Hammon n ° M- Open Records Officer c „+ CD C,D Silver Springs Township Police 5 Willow Mill Park Road, Suite 1° CD Mechanicsburg, PA 17050 CD Appeal 65 PS 67.1302 =' And Now, this October 23rd, 2013, comes the appellant, Joshua A Monighan, by his attorney, Joshua A Monighan pro se and states as follows: 1. Appellant's request under RTKL 65 P.S. §67.101 et seq. made 8 -7 -2013 2. Office of Open Records proposes, by Notice September 23rd, 2013, final determination A copy of the notice by the Office of Open Records is attached to this appeal. 3. The affidavit accepted by the Open Records Office as "adequate" lacks burden of proof is contrary to 65 Ps 67. 708 E and D I the under signed hereby state the statements made here in this appeal 65 PS 67.1302 are true and correct to the best of my knowledge, Information and belief. The under signed understands the the statements in the attached appeal are made subject to the penalties of 18 Pa, C.S. Sec. 4904 Relating to unsworn falsification to authorities Joshua A Monighan 6363 Basehore Rd Mechanicsbug PA 17050 1717 319 8014 /0.3 Cas Pr c,4 ag8 1 of 1 $iss2o Silver Spring Twp Police FI POSTAGE_ FRST-CLASS 5 Willow Mill Park Rd oa2so007990332 noso Mechanicsburg, PA 17050 Joshua A. Monighan 6363 Basehore Rd Mechanicsburg, PA 17050 X 23 Waverly Drive Law Office phone: 717.903.1268 Hummelstown, PA 17036 of fax: 717.583.2943 Steven A. Stye email: stevenstine @att.net September 4, 2013 Kyle Applegate, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4 Floor Harrisburg, PA 17120 -0225 Re: Response to Appeal, Docket # AP2013 -1536 Dear Mr. Applegate: This letter is in response to the appeal filed to the above - referenced docket, whereby the requester, Joshua Monighan appealed a denial of his request for records relating to or resulting in a criminal investigation. As stated in the enclosed Attestation of Facts and Nonexistence of Records, the records requested by Mr. Monighan are records relating to or resulting in a criminal investigation, including a complaint of potential criminal conduct and investigative materials, notes, correspondence, videos and reports arising from an investigation by the Township Police with regard to an incident at 211 Woods Drive Silver Spring Township, on February 12, 2013 on or about 1930 hours. The incident involved a large bonfire in violation of the Township burning ordinance and other actions by the requester, Mr. Monighan. As a result Mr. Monighan was arrested for disorderly conduct. Specifically, Mr. Monighan requested all video and audio recordings to include any third party video or audio recordings, reports and notes generated while acting in a public capacity in response to a dispatch to 211 Woods Drive, Silver Spring Township by Officers Craven, Stambaugh, Weikert and Sgt. Sadler of the Silver Spring Township Police Department on or about 1930 hours on February 12, 2013. Section 708(b)(16) of the Right -to -Know Law, 65 P.S. §67.708(b)(16), provides, in pertinent part, that the following are exempt from access by a requester under this act: (16) A record of an agency relating to or resulting in a criminal Investigation, including: (i) Complaints of potential criminal conduct other than a private criminal complaint. s (ii) Investigative materials, notes, correspondence, videos and reports. (iv) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. Section 708(b)(16) specifically exempts from access the exact records requested by Mr. Monighan. In addition, to the extent that Mr. Monighan's request covers notes and working papers, Section 708(b)(12) of the Right -to -Know Law, 65 P.S. §67.708(b)(12), exempts notes and working papers prepared by or for a public official or agency employee used solely for that official's or employee's own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose. As set forth in the enclosed Attestation of Facts and Nonexistence of Records, the video and audio recordings requested by Mr. Monighan do not exist. Furthermore, the Township Police Department has no knowledge that there were any third party video or audio recordings made, and if there were, they are not in possession of the Department. In accordance with Section 705 of the Right -to -Know Law, 65 P.S. §67.705, an agency is not required to produce a record that does not exist. For the reasons set forth above, the appeal must be denied. Lastly, it appears that the Office of Open Records does not have jurisdiction to consider this appeal, since Section 503(d)(2) of the Right -to -Know Law, 65 P.S. §503(d)(2), provides that the district attorney of the county, in this case, Cumberland County, has exclusive jurisdiction to hear appeals relating to access to criminal investigative records in possession of a local agency of that county. The appeal, therefore, is required to be dismissed for lack of jurisdiction. If you have any questions or need further information, please contact me. Since A, J .. ev enclosure s' POLICE DEPARTMENT ., �c%at� 00cnmon 8'V't&&'d.f of �olice ATTESTATION OF FACTS AND NONEXISTENCE OF RECORDS Date: September 4, 2013 Agency: Silver Spring Township Police Department Requester: Joshua A. Monighan Records Requested: All video and audio recordings to include any third party video or audio recordings, reports and notes generated while acting in a public capacity in response to a dispatch to 211 Woods Drive, Silver Spring Township by Officers Craven, Stambaugh, Weikert and Sgt. Sadler of the Silver Spring Township Police Department on or about 1930 hours on February 12, 2013. OOR Docket # AP- 2013 -1536 1, Richard E. Hammon, am the Silver Spring Township Superintendent of Police and the Police Right to Know Officer and I make this statement under penalty of perjury as more fully set forth in 18 Pa.C.S. §4904. I attest that I have searched the Township Police Department files to the best of my ability and that the requested video and audio recordings do not exist. In addition, I attest that I have no knowledge that there were any third party video or audio recordings made, and if there were, they are not in possession of the Township Police Department. Furthermore, all of the records requested are records relating to or resulting in a criminal investigation, including a complaint of potential criminal conduct and investigative materials, notes, correspondence, videos and reports arising from an investigation by the Township Police z a� F with regard to an incident at 211 Woods Drive Silver Spring Township, on February 12, 2013 on or about 1930 hours. The incident involved a large bonfire in violation of the Township burning g N Z ordinance and other actions by the requester, Joshua Monighan. As a result Monighan was W - rg arrested for disorderly conduct. o 2 E ir My contact information, including telephone number and email address is 5 Willow Mill Park Road, Suite 1, Mechanicsburg, PA 17050; (717) 697 -0607; rehanunongsilverspringtwppa .g_ov z US S By: Richard E. Hammon, Superintendent of Police/Police Right to Know Officer 5 Willow, Mill Park Rd., Suite 1, Mechanicsburg, PA 17050 www.silverspringpolice.com 717 - 697 -0607 (office) 1 717 - 766 -5984 (fax) - , tc�tt��ttt��tt;4���tttt�l�lt kk t t. �t�4tt n4s�� 05 © eona e�u wa dail: d � : '� - sn ed• s •spA ° ,� gZZ o kAmea u oN o f aaalS 100 \4 '360 +� 0 33,340 So�Q�3b t4360 ���ad � �dSfld�"� e Y r%ehnnsytvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF JOSHUA MONIGHAN, Complainant - V. Docket No.: AP 2013 -1536 SILVER SPRING TOWNSHIP POLICE DEPARTMENT, Respondent INTRODUCTION Joshua Monighan ( "Requester ") submitted four (4) requests ( "Requests ") to the Silver Spring Township Police Department ( "Department ") pursuant to the Right -to -Know Law, 65 P.S. § § 67.101 et seq., ( " RTKL "), seeking records related to an incident. The Department denied the Requests, arguing that the records are personal notes and criminal investigative records. The Requester then appealed to the Office of Open Records ( "OOR "). For the reasons set forth in this Final Determination, the appeal is denied in part and dismissed for lack of jurisdiction in part and the Department is not required to take any further action. FACTUAL BACKGROUND On August 7, 2013, the Requests were filed, seeking "all video and audio recordings..., records, reports and notes generated in response to [an incident]" by four (4) named police officers. On August 12, 2013, the Department denied the Request, arguing that the records are 1 personal notes, 65 P.S. § 67.708(b)(12), and records of a criminal investigation. 65 P.S. § 67.708(b)(16). On August 27, 2013, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record and directed the Department to notify any third parties of their ability to participate in this appeal pursuant to 65 P.S. § 67.1101(c). On September 5, 2013, the Department provided a position statement, along with the affidavit of Richard Hammon, Superintendent of Police and Open Records Officer, attesting that the Department does not possess the audio and video recordings sought in the Request. LEGAL ANALYSIS "The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government." SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open - government law is "designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required "to review all information filed relating to the request" and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non - appealable. Id.; Giurintano v. Dep't of Gen. Servs., 20 A.3d 613, 617 (Pa. 2 Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The Department is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such proof as leads the fact -finder ... to find that the existence of a contested fact is more probable than its nonexistence." Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dept of Transp. v. Agrie. Lands Condemnation Approval Bd., 5 Aid 821, 827 (Pa. Con Ct. 2010)). "The burden of proving a record does not exist ... is placed on the agency responding to the right -to -know request." Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011). 1. The requested video and audio recordings do not exist The Department argues that it does not possess any responsive video or audio recordings. On this point, Superintendent Hammon's affidavit states that a search was conducted and that no 3 responsive video or audio recordings exist in the Department's possession, custody or control. Under the RTKL, an affidavit may serve as sufficient evidentiary support of the non - existence of records. See Sherry v. Radnor Twp. Sch. Dist, 20 A.3d 515, 520 -21 (Pa. Commw. Ct. 2011); Moore v. OOR, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). Based on the Department's affidavit, the Department has met its burden of proof that it does not possess any video or audio recordings responsive to the Request. 2. The appeal is dismissed to the extent that it seeks criminal investigative records The Department also denied the Request on the basis that the video and audio records were records related to a criminal investigation. 65 P.S. § 67.708(b)(16). Pursuant to 65 P.S. § 67.503(d)(2), only the Cumberland County District Attorney's Office is authorized "determine if the record requested is a criminal investigative record" of a local agency within Cumberland County. Accordingly, the OOR lacks jurisdiction to assess the merits of this aspect of the appeal, and, to the extent that the Department claims that the requested records are properly withheld records pursuant to the criminal investigative records exemption, the appeal is dismissed for lack of jurisdiction. This dismissal is'without prejudice to the Requester's ability to file an appeal of with the Cumberland County District Attorney's Office within the timeframe provided for within 65 P.S. § 67.1101(a)(1). CONCLUSION For the foregoing reasons, Requester's appeal is denied in part and dismissed for lack of jurisdiction in part and the Department is not required to take any further action. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final ' While the Department did not initially deny the Request on the basis that the records did not exist, the Department is not precluded per se from raising new grounds on appeal, Levy v. Senate of Pennsylvania, 65 A.3d 651 (Pa. 20I3), and there is no evidence from which the OOR can conclude that the Department waived its right to raise new grounds for denial on appeal. See generally, Schneller v. Plumstead Twp., OOR Dkt. AP 2013 -1470, 2013 PA O.O.R.D. LEXIS 4 Determination, any party may appeal to the Cumberland County Court of Con Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us FINAL, DETERMINATION ISSUED AND MAILED: September 23, 2013 APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to: Joshua Monighan; Steven Stine, Esq. (via e -mail only) 5 In the court of Common Pleas of Cumberland County, ?Pennsylvan(/;/'a Joshua A Monighan No.13- 6 y �� � /Cf/n Vs. 65. P. S. 67.1302 Richard E Hammon, Open Records Officer Silver Springs Township Police 5 Willow Mill Park Road, Suite 1 Mechanicsburg, PA 17050 Appeal 65 PS 67 .1302 And Now, this day of 20/3 a hearing is scheduled on the appeal of petitioner for the day of ,20/3 at 3 :00 Min Courtroom no.-of the Cumberland County Courthouse, One Courthouse Square, 4th Floor, Carlisle PA 17013, at which time Testimony will be.taken and argument heard A copy of this Order has been served on Appellant. It Shall be Appellant's Responsibility to serve a copy of this Appeal, all Attachments, and this Order on the Attorney for the Commonwealth at the following addresses: Kyle Applegate, Esq. c 400 north Street, 4th Floor Commonwealth Keystone Building MM 0 Harrisburg PA 17120-0225 ;,:� 3> �a a Steven Stine, Esq. ::4_D 23 Waverly Dr. -'Q C)~- ; Hummelstown, PA 17036 C 6 T Silver Springs Township Municipal Police Department Richard E. Hammon, Open Records Officer T� 5 Willow Mill Park Road, Suite 1 Mechanicsburg, PA 17050 It shall further be Appellant's responsibility to file a Certificate of Service with the Prothonotary stating that services was made on the Commonwealth of Pennsylvania. By the Co rt, 9 S ' 94 Judge JOSHUA A. MONIGHAN, : IN THE COURT OF COMMON PLEAS Petitioner, : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : CIVIL ACTION - LAW RICHARD E. HAMMON, • OPEN RECORDS OFFICER • SILVER SPRINGS TOWNSHIP Respondent. : No. 2013-6245 Civil Term IN RE: PETITION FOR REVIEW FROM FINAL DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS BEFORE HESS, P.J. ORDER AND NOW, this 8. day of January, 2014, upon consideration of the Petition for Review from a Final Determination of the Pennsylvania Office of Open Records, following a hearing, held November 20, 2013, the Final Determination is AFFIRMED. BY THE COURT, Key' • . Hess, P.J. /Joshua A. Monighan 6363Basehore Rd. Mechanicsburg, PA 17050 Petitioner teven A. Stine, Esquire r� 23 Waverly Drive ' Hummelstown, PA 17036 rr`-.. For the Respondent = i 1 / r t //