This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On June 9, 2020, the Commonwealth Court handed down a decision in Pennsylvania Dep’t of Labor and Industry v. Chester Darlington, No. 1583 C.D. 2019 (Pa. Commw.).  The decision upheld the OOR’s Final Determination that documents relating to periodic, routine, and regular boiler inspections conducted pursuant to the Boiler and Unfired Pressure Vessel Law (“Boiler Law”) are not exempt from disclosure under Section 708 (b)(17) of the RTKL.

Background and Facts: 

On August 28, 2019, requester Chester Darlington submitted a RTKL request to the Pennsylvania Department of Labor and Industry (“DLI”) for any and all records, including investigation reports, pertaining to a June 15, 2016 incident that took place at the Veolia Energy Plant in Philadelphia.  DLI denied the request based on RTKL’s noncriminal investigation exemption.  During the Requester’s OOR appeal, DLI produced additional documents indicating that some of the boiler inspections at Veolia were regular boiler field inspections while others were “the direct result of a boiler and/or other regulated pressure vessel incident or a complaint” and that some of the boiler inspection records dated back to 1991.

OOR granted the Requester’s request in part.  It held that the Requester was entitled to records relating to the regular annual boiler inspections at Veolia, but not to the records relating to the 2016 incident, as records relating to that incident were a “noncriminal investigation” within the meaning of the RTKL.  Requester did not appeal from the determination relating to the 2016 incident, but DLI appealed from the portion of OOR’s Final Determination that ordered production of reports of regular boiler inspections.

Requester’s position on appeal was that OOR’s Final Determination was correct, because the Boiler Law, under which the regular boiler inspections were performed, distinguishes between “inspection” and “investigation” activities, which are treated differently under the RTKL.  DLI responded that both types of activities warrant protection to help ensure that they result in truthful answers, which might not be the case if information about them was publicly available.

Analysis and Holding:

The Darlington Court began its analysis by observing that an agency’s records are presumed to be public unless they fall within an exemption under the RTKL, and the agency has the burden of proving that an exemption applies.  The exemption at issue here was the “noncriminal investigation” exemption.

OOR determined that the routine boiler inspections were not “noncriminal investigations” for four reasons:  1)  the Boiler Law itself differentiates between “inspections” and “investigations”; 2) routine boiler inspections can be performed by non-Department personnel while investigations cannot be; 3) DLI’s affidavits do not provide sufficient details to justify treating the boiler inspections as “noncriminal investigations” under existing case law; and 4) the disclosure here does not raise the same public policy concerns present in Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Commw. 2010), which it treated as controlling authority.

The Darlington Court began its review of OOR’s Final Determination with the term “noncriminal investigation.” Although the RTKL does not define the words “noncriminal” or “investigation,”  common usage defines “noncriminal” as “investigations other than those criminal in nature,” and Commonwealth Court precedent defines “investigation” as “a systematic or searching inquiry, a detailed examination, or an official probe.”  Department of Health v. Office of Open Records, 4 A.3d at 811.

In light of these definitions, the Darlington Court turned to the Boiler Law, which clearly distinguishes between an “inspection” and an “investigation.” In particular, the Boiler Law distinguishes between a routine field inspection and an investigation of a particular boiler-related incident, and provides that an investigation must be conducted by DLI while an inspection may be performed by non-DLI personnel. These distinctions indicate that it is inappropriate to equate routine “inspections” with “investigations,” and the conclusory statements in DLI’s attestations failed to provide the Court with any reason to conclude otherwise.

Finally, the requested disclosures relating to regular boiler inspections in this case do not “raise the same concerns about witness confidentiality or harm to reputation” as did the request for nursing home documents that was at issue in the Department of Health case.  In particular, the nursing home documents raise patient privacy concerns which documents about routine boiler inspections do not.  Slip op. at 20.  OOR’s Final Determination was consequently affirmed.

Bottom Line: 

Darlington reminds us that it takes a statutory definition to equate such facially different terms as “inspection” and “investigation.”  OOR correctly determined that the Boiler Law, which defines DLI’s authority and obligations, shows that “inspections” and “investigations” are different things, and a conclusory attestation by an agency official does not change that.