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Home My WebLink About2013-6245 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. OPINION AND ORDER Before the court is an Appeal from the Final Determination of the Pennsylvania Office of Open Records (hereinafter “OOR”) that is being treated as a Petition for Review pursuant to 65 P.S. § 67.1302. (Appeal, filed Oct. 23, 2013). In this Right-to-Know Law (hereinafter “RTKL) case, Petitioner, Joshua A. Monighan (hereinafter “Monighan”), submitted four requests to Richard E. Hammon, the Open Records Officer for Silver Spring Township Police Department (hereinafter “the Department”), pursuant to the RTKL, 65 P.S. §§ 67.101 et seq. Each of the four requests mentions a different officer, but all request “all video and audio recordings (to rd include 3 party video and audio Recordings), records, report and notes generated while acting in a public capacity in response to dispatch to 211 Woods Drive Silver Spring Township…” The Department denied Monighan’s request, asserting the records requested are records relating to or resulting in a criminal investigation, 65 P.S. §708(b)(16), and personal notes. 65 P.S. §708(b)(12). Monighan appealed the denial to the OOR. As a result of the appeal, Mr. Hammon submitted an affidavit stating that the requested audio and video recordings do not exist and that the records requested relate to or resulted in a criminal investigation. The OOR issued a Final Determination that denied the appeal in part and dismissed the appeal in part. In doing so, the OOR held that the Department had met its burden of establishing that it does not possess any relevant video or audio recordings and that, regarding records purportedly relating to a criminal investigation, the Cumberland County District Attorney’s Office—not the OOR—is authorized to determine if records requested are criminal investigative records. Following the issuance of the Final Determination, Monighan filed the instant appeal. As a result, a hearing was held on November 20, 2013 that established the following: According to Monighan, on February 12, 2013, he notified the County that he was going to have a controlled burn on his property. (Notes of Testimony, In Re: Transcript of Proceedings, 10, 21, Nov. 20, 2013 (hereinafter “ N.T. __”)). A full review of the record reveals that the controlled burn amounted to a bonfire. (N.T. 16-17). While the fire was underway, a neighbor who was concerned about the fire contacted officials. (N.T. 11). After officers arrived at the scene of the fire, an incident took place involving Mr. Monighan that resulted in him being charged with Disorderly Conduct, graded as a misdemeanor of the third degree. (N.T. 11). Ultimately, the charge was reduced to a summary offense. (N.T. 11). After Mr. Monighan finished testifying, Richard Hammon took the stand. (N.T. 12). Mr. Hammon testified that he searched the Department’s records after he received Mr. Monighan’s request, but he did not find any audio or video recordings. (N.T. 14). Additionally, Hammon testified that the police department’s vehicles were not equipped with recording devices at the time of the incident. (N.T. 14). “The purpose of the RTKL is to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials 2 accountable for their actions.” Coulter v. Dep’t of Pub. Welfare, 65 A.3d 1085, 1088 (Pa. Cmwlth. 2013) (internal quotations and citations omitted). Under the RTKL, agency records are presumed to be public records and are required to be made available to a requester. 65 P.S. §§ 67.305, 67.701(a). However, a “document may be exempt from public disclosure under one of the thirty categories listed in Section 708(b) of the RTKL.” Bowling v. Office of Open Records, 75 A.3d 453, 467 (Pa. 2013). One such exemption reads: (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. (ii) Investigative materials, notes, correspondence, videos and reports. …. 65 P.S. §67.708(16). Section 708 of the RTKL also establishes that the local agency must prove that an exemption applies by a preponderance of the evidence. 65 P.S. §67.708(a)(1). If a requester takes issue with a denial, the requester may file an appeal with the OOR, 65 P.S. §67.1101(a)(1), except that appeals relating to access to criminal investigative records shall be heard by a designee of the district attorney of the applicable county. 65 P.S. 67.503(d)(2). If the requester seeks to pursue the matter further after such an appeal, he or she may file a petition for review with the court of common pleas for the county where the local agency is located. 65 P.S. §67.1302(a). While the exact focus of this “appeal” is not entirely clear, this court is satisfied that nothing has been established to support overturning the Final Determination of the OOR. Mr. Monighan’s appeal inartfully states, “[t]he affidavit accepted by the Open Records Office as 1 ‘adequate’ lacks burden of proof is contrary to 65 Ps 67. 708 E and D.” At the November 20, 1 65 PS §§67.708(e) & (d) read: 3 2013 hearing, Mr. Monighan was questioned regarding what is at issue in the instant proceeding, and he replied “[w]ell, not that part of whether or not there was a criminal investigative record, that’s correct. It is only an issue of whether or not the records actually every existed.” (N.T. 5). Thus, we understand the issue to be whether or not the Department met its burden in establishing that video and audio recordings do not exists. While departments bear the burden of demonstrating the non-existence of a record, sworn and unsworn affidavits stating a department does not possess such a record have been found sufficient to meet that burden. Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010). Here, in addition to the affidavit from Richard Hammon stating that audio and video recordings do not exists, Hammon, himself, testified at the November 20, 2013 hearing that no recordings exist and that the Department’s police vehicles, in any event, did not have recording devices at the time of the incident. The Department has clearly met its burden of establishing that no such recordings exist. The Petitioner himself seemed satisfied of this, as he stated, “given the testimony, I think it is valid in that they didn’t have the video cameras installed.” (N.T. 22). In light of the testimony of Mr. Hammon, the sufficiency of the affidavit is no longer in question, and we affirm the Final Determination of the OOR. At times during the hearing, Mr. Monighan also seems to challenge whether the records should be exempt as relating to or resulting in a criminal investigation. (“It wasn’t something that was directly a criminal investigation to begin with. It was a public matter which then was construed into an investigative circumstance.” (N.T. 6)). To this end, we also agree with the Final Determination of the OOR that they lack jurisdiction to hear this issue. Under 65 P.S. (d) Aggregated data.--The exceptions set forth in subsection (b) shall not apply to aggregated data maintained or received by an agency, except for data protected under subsection (b)(1), (2), (3), (4) or (5). (e) Construction.--In determining whether a record is exempt from access under this section, an agency shall consider and apply each exemption separately. 4 67.503(d), the district attorney is charged with the duty to designate an appeals officer to determine if the record requested is a criminal investigate record. Since this issue was not properly heard in the first instance, this court is not in a position to review it. Even were we to deal with Mr. Monighan’s argument on its merits, we would not find his position tenable. He suggests that his initial call to authorities and his neighbor’s call were not complaints of a crime. Instead, he submits that his call was made to provide notice of the intent to have a fire and his neighbor’s call was made out of concern for Monighan’s property. Thus, they were not calls made in order to give rise to a criminal investigation. The calls, however, in fact ultimately resulted in a criminal investigation and the filing of the charge of disorderly conduct. Thus, they are records “relating to or resulting in a criminal investigation” within the ambit of the act. ORDER th 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, Kevin A. Hess, P.J. 5 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 th 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, Kevin A. Hess, P.J. Joshua A. Monighan 6363Basehore Rd. Mechanicsburg, PA 17050 Petitioner Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 For the Respondent