The Pennsylvania Commonwealth Court recently reversed an OOR decision based on a finding that the statutory exception under RTKL Section 708(b)(17)(i) applies to exempt from disclosure a non-criminal investigation, including the complaint submitted to the agency. In Pennsylvania Liquor Control Board v. Perretta, 2019 WL 6114465 (Pa. Cmwlth Ct., Nov. 18, 2019), the court, in an opinion by Judge Fizzano Cannon, held that an employee of the Pennsylvania Control Board (PLCB) was not entitled to a copy of the complaint allegedly filed by a particular individual, whom the Requester identified by name.

Issues Addressed:

On appeal, in which review is de novo, with a plenary scope of review, the court was called upon to determine whether the non-criminal investigation exemption applied.

OOR Ruling Reversed:

The OOR issued a final determination granting the Requester’s appeal from the denial of the PLCB to provide a copy of the complaint sought by the Requester. The position of the PLCB was that complaints submitted to an agency are exempt from access pursuant to the non-criminal investigation exemption in the RTKL.  The OOR relied on two court decisions that were distinguished in the opinion.

Important RTKL Principles Articulated by the Court:

Although not new, this decision provides an important overview of the RTKL and a reminder that the objective of the RTKL 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.” Id. at *4.

This opinion also provides a refresher on basic RTKL principles such as:

(1)       A record in the possession of a Commonwealth Agency shall be presumed to be a public record under RTKL Section 305(a).

(2)       The presumption shall not apply if the requested record is exempt under the RTKL, is exempt from disclosure under any other federal or state law, or is protected by a privilege.

(3)       The agency bears the burden of proving, by a preponderance of the evidence, that the record is exempt from disclosure under an enumerated exemption.

(4)       RTKL Section 708(b)(17)(i) exempts from disclosure records of an agency relating to a non-criminal investigation, including complaints.  This exemption is designed to encourage cooperation with investigations by persons who are requested to provide information.

Court’s Reasoning:

The court relied on affidavits provided by the PLCB that any complaints made to the agency are investigated. Based on those affidavits, the court explained that the requested records fall squarely within the exemption described in RTKL Section 708(b)(17)(i).

The court also explained that the burden of proof was satisfied by the submission of affidavits by the agency, because they established that it was “more likely than not” that a non-criminal investigation was conducted.