Office of Open Records Appeal CP 2014-0614

8/21/2019 Office of Open Records Appeal CP 2014-0614

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Austin Nolen

August 4th, 2014

Office of Oen !ecords

Co""on#e$lth %eystone &uilding400 North 'treet, 4th(loor)$rris*urg, PA 1+1200225oenrecords-$.go/

e$r 'ir or $d$"e,

Pursu$nt to the Pennsyl/$ni$ !ightto%no# $# the $#6, 75 P. '. 7+.101 7+.3104, : $"$e$ling the $d/erse decisions of the City of Phil$delhi$, !ecords e$rt"ent in reg$rds to "y re;uest

nu"*ered CP 20140714. 'ecific$lly, : $" $e$ling the #ithholding of the re;uested records ursu$nt to 75P.'. 7+.+08*61+6


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Memorandum of Law in Support of Appeal

in re CP 2014-0614

In this matter, I am challenging the application of the following exemptions to my request by

the City of Philadelphia, Records Department (City!"#

I$ %& P$'$ %)$)*+(b"(1)" noncriminal in-estigations./

II$ %& P$'$ %)$)*+(b"(%"(i"(0" personally identifying information./

III$ %& P$'$ %)$)*+(b"(1"(ii" dates of birth/ home addresses of indi-iduals.$

I am also challenging the failure of the City to follow their statutory responsibilities under#

I$ %& P$ '$ %)$2*3(1" requiring description of denied record(s".$

4urisdiction

5he 6ffice of 6pen Records is the appropriate -enue for this appeal under %& P$'$ %)$11*1(a"(1"$

Please not that I am simultaneously appealing the criminal in-estigation exemption claim to the appropriate

authority, the 6ffice of the District 0ttorney of Philadelphia$

7ac8ground to the 0ppeal

6n 4une 11th, 9*1:, I submitted a request by email to the City for 0ll police incident reports created by

the Ci-il 0ffairs ;nit for the date of inally, on 4uly 1+th, I recei-ed a denial of my request (see =xhibit C"$ 5he denial stated, in part#

?our request is denied$ ?our request is denied as see8ing records related to criminal and@or

noncriminal in-estigations$ %& P$'$ %)$)*+(b"(1%", (1)"$$$ 0dditionally, your request is denied

to the extent the records requested reflect#

Personally identifying information, including but not limited to home and@or cell phone

numbers, email addresses, social security numbers and payroll numbers$ %& P$'$


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%)$)*+(b"(%"(i"(0"$

Dates of birth$ A overnors Offie of Admin! v! Purell, 9*11 Pa$ Commw$ B=I' %12 (Pa$

Commw$ Dec$ 92, 9*11"/ see also"elaware Co! v! S#aefer, o$ 9&% C$D$ 9*119*19 Pa$

Commw$ ;npub$ B=I' 911 (Pa$ Cmwth$


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does not meet this criteria$ I am spea8ing of an incident report concerning a demonstration on federal property at

)% orth %th 'treet in downtown Philadelphia$ 5his incident report was filled out by officers of the Ci-il 0ffairs

;nit who assisted federal authorities with the demonstration$ hile the City now claims that this report is related

to a systematic inquiry into whether a regulation was being -iolated, they did not ma8e this same claim when

they released the Daily Complaint 'ummary for the Ci-il 0ffairs ;nit for the date in question, a record which

contained information such as the number of Ci-il 0ffairs 6fficers on scene of the abo-eJmentioned

demonstration and the number of demonstrators arrested (see =xhibit D"$ In fact, they specifically stated that

this type of record is generally in-estigatory and is therefore generally exempt pursuant to %& P$'$ %)$)*+(b"

(1%", (1)"$$$ In this instance, howe-er, the requested record happens to not contain in-estigatory information and

the PPD is therefore willing to release it! (see =xhibit ="$

In their response to my earlier request, the City effecti-ely ac8nowledged that the mere reports of

officers conducting crowd control do not rise to the le-el of systematic inquiries into the potential -iolation of a

statute$ Rather than using in-estigati-e methods to determine whether a -iolation of law was occurring, the Ci-il

0ffairs officers were instead in-ol-ed in the mar8edly different tas8 of simultaneously preser-ing the rights of

some indi-iduals to lawfully exercise their >irst 0mendment rights, while also ta8ing into custody those who had

clearly committed a -iolation of federal law or regulation$ 5he incident report concerning this demonstration will

reflect this difference, and thus it is not exempt under %& P$'$ %)$)*+(b"(1)"$ 'ince the Ci-il 0ffairs ;nit is the

demonstration management unit of the Philadelphia Police, most or all of the rest of the records responsi-e to my

request should similarly fall outside of the noncriminal in-estigations exemption$

>inally, since the burden of pro-ing an exemption rests with an agency, presumably a claim of

exemption under %& P$'$ %)$)*+(b"(1)" must include some information on the suspected noncriminal law or

regulation being -iolated$ 0fter all, one opens an in-estigation because one suspects a specific -iolation has

occurred, is occurring or will occur soon$ hile I request that the City pro-ide this information as part of its

e-idence in fa-or of exemption, I must note that it strains credulity for the City to simultaneously claim both the

criminal and noncriminal records exemptions, since presumably e-en the most no-ice in-estigator can tell

whether he or she is in-estigating a criminal or ci-il -iolation$ Rather, it appears that the City is trying to claim


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all the exemptions it can, without regard to how well they actually apply to the records in question$

II$ %& P$'$ %)$)*+(b"(%"(i"(0" personally identifying information. K III$ %& P$'$ %)$)*+(b"(1"(ii"

dates of birth/ home addresses of indi-iduals.$

In regards to personally identifying information and the dates of birth as well as home addresses of

indi-iduals, I do not dispute that this information is indeed exempt$ Howe-er,!if an agency determines that a

public record$$$ contains information which is subGect to access as well as information which is not subGect to

access, the agencyLs response shall grant access to the information which is subGect to access and deny access to

the information which is not subGect to access$ ! %& P$'$ %)$)*%$ In this case, such information should clearly

be able to be redacted$ I also note that, in the letter denying my request, the City stated in regards to personally

identifying information and the dates of birth as well as home addresses of indi-iduals that such information is

commonly included on police incident reports! (see =xhibit C"$ ot only does this ignore the redaction

requirement, it is another seeming indication that the City, rather than re-iewing the responsi-e records and

determining which exemptions apply, is grasping at exemptions that commonly! apply to the requested records,

contrary to the letter and intent of the Baw$

I$ %& P$ '$ %)$2*3(1" requiring description of denied record(s".$

If an agencyLs response is a denial of a written request for access, whether in whole or in part, the denial

shall be issued in writing and shall include#$$$ 0 description of the record requested$ ! %& P$'$ %)$2*3 J %& P$'$

%)$2*3(1"$ 5he text of this part of the statute is ambiguous$ 'ince it is ambiguous, it is open to interpretation

based on legislati-e intent, per 1 Pa$C$'$ 1291$ Pursuant 1 Pa$C$'$ 1299(1", in see8ing to understand

legislati-e intent, we may assume that the Aeneral 0ssembly does not intend a result that is absurd$$$! It seems

patently absurd that the Aeneral 0ssembly would ha-e required an agency to merely parrot bac8 the words of a

request to a requester, who, ha-ing written the request, is presumably already quite familiar with its phrasing$

7eyond the absurdity of a claim that %& P$'$ %)$2*3(1" merely requires an agency to parrot the

requesterEs own language, there is a substantial reason to belie-e that the intent was to require an agency to


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pro-ide a log! or index! of denied records$ 0t the federal le-el, in court decisions about the >reedom of

Information 0ct, such logs or indexes ha-e been found to be crucial for le-eling the playing field between

requesters and agencies by allowing requesters to more fully assess the applicability of the claimed exemptions

to the documents in question, while not treading on the right of the agency to withhold exempt material$ 'ee

%aun v! 'osen, :+: >$9d +9* (D$C$ Cir$ 12)3"/ Campai&n for 'esponsi(le )ransplantation v! *"A, 912 >$

'upp$ 9d 1*%, 11% (D$D$C$ 9**9"/ +udiial ,at# .n! v! *"A, ::2 >$3d 1:1, 1:% (D$C$ Cir$ 9**%", among

others$ 'ince the 0ct shares the >reedom of Information 0ctEs presumption of openness cf$ /owlin& v! OO', 22*

0$9d +13 (Pa$ Commw$ 9*1*" to"ept of Air *ore v! 'ose, :9& ;' 3&9 (12)%"., the use of descripti-e logs to

gi-e requesters a fair playing field on which to exercise appellate remedies shares the same importance under

both laws$ 5he failure to pro-ide a log in this case thus contra-enes the intent of the 0ct$ >inally, please note that

while this is not a claim under %& P$'$ %)$11*1, I ha-e already addressed my grounds for appeal under 'ection

11*1 abo-e, and thus this portion of my appeal should be considered as well, e-en though it alone would not be

sufficient$

Prayer for Relief

In consideration of the abo-e pleading, I request that the 6ffice of 6pen Records issue a final

determination requiring the release of copies of the responsi-e records, with proper redactions where

necessary, and requiring as well that these records, both those denied in part and any still denied in

whole, be accompanied by a log! or index! describing each record, as required by %& P$'$ %)$2*3(1"$

Respectfully submitted this day of 0ugust :th, 9*1:,

0ustin olen


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=xhibit 0


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STANDARD RIGHT-TO-KNOW REQUEST FORM

DATE REQUESTED:_________________

REQUEST SUBMITTED BY: E-MAIL U.S. MAIL FAX IN-PERSON

REQUEST SUBMITTED TO (Agency name & address):__________________________________________

________________________________________________________________________________________

NAME OF REQUESTER :___________________________________________________________________

STREET ADDRESS: __________________________________________________________

CITY/STATE/COUNTY/ZIP(Required): __________________________________

TELEPHONE (Optional):_____________________ EMAIL (optional):_____________________________

RECORDS REQUESTED: *Provide as much specific detail as possible so the agency can identify the information.Please use additional sheets if necessary

DO YOU WANT COPIES? YES or NODO YOU WANT TO INSPECT THE RECORDS? YES or NODO YOU WANT CERTIFIED COPIES OF RECORDS? YES or NODO YOU WANT TO BE NOTIFIED IN ADVANCE IF THE COST EXCEEDS $100? YES or NO

** PLEASE NOTE: RETAIN A COPY OF THIS REQUEST FOR YOUR FILES **** IT IS A REQUIRED DOCUMENT IF YOU WOULD NEED TO FILE AN APPEAL **

____________________________________________________________________________FOR AGENCY USE ONLY

OPEN-RECORDS OFFICER:

I have provided notice to appropriate third parties and given them an opportunity to object to this request

DATE RECEIVED BY THE AGENCY:

AGENCY FIVE (5) BUSINESS DAY RESPONSE DUE:

**Public bodies may fill anonymous verbal or written requests. If the requestor wishes to pursue the relief and remediesprovided for in this Act, the request must be in writing. (Section 702.) Written requests need not include an explanationwhy information is sought or the intended use of the information unless otherwise required by law. (Section 703.)

June 11th, 2014

City of Philadelphia - Records Department

Joan Decker, Commissioner, Room 156 City Hall, Philadelphia, PA 19107

Austin Nolen

[email protected]

I. All police incident reports created by the Civil Affairs Unit for the date of March 10th, 2014.

Yes to copies, no to inspection, no to certified copies, yes to advance notification.


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=xhibit 7


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LAW DEPARTMENT

ONE PARKWAY BUILDING

1515ARCH STREET

PHILADELPHIA,PA19102

Shelley R. Smith

City Solicitor

Benjamin S. Mishkin

Assistant City Solicitor(215) 683-5022 (Tel.)

(215) 683-5069 (fax)

[email protected]

CITY OF PHILADELPHIA

June 18, 2014

VIA ELECTONIC MAIL

Austin Nolen

[email protected]

Re: Nolen CP 2014-0614

Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia with your request for information. A copy of yourrequest is attached.

Please note at the outset that requests for records to state and local agencies in Pennsylvania aregenerally governed by the Commonwealth's Right to Know Act ("Act"), 65 P.S. 67.101-67.3104.

Be advised that we will be asserting the City of Philadelphias right to an additional thirty (30) calendardays to review the request as provided for by the Act. This right is being asserted for the following reasons:

(a) Bona fide staffing limitations (in retrieving and reviewing the record(s) requested);(b) A legal review is necessary to determine whether the record(s) is a record(s) subject to access

under the Act;(c) To determine if the request requires the redaction of a public record(s);

(d) The extent or nature of the request precludes a response within the required time period.

We will contact you regarding this request within thirty (30) calendar days as required by law.

Respectfully,

Benjamin S. MishkinAssistant City Solicitor
mailto:[email protected]:[email protected]:[email protected]


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=xhibit C


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LAW DEPARTMENT


1515ARCH STREET


Shelley R. Smith

City Solicitor

Benjamin S. Mishkin

Assistant City Solicitor(215) 683-5022

(215) 683-5069 (fax)

[email protected]


July 18, 2014

VIA ELECTRONIC MAIL

Austin Nolen

[email protected]


Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia (City)with your request for information

pursuant to the Pennsylvania Right-To-Know Law, 65 P.S. 67.101 et seq., (the Actor RTKL).

On June 11, 2014, the City received your request for all police incident reports created by the

Civil Affairs Unit for the date of March 10, 2014.

On June 18, 2014, the City informed you that it would require up to an additional thirty (30)days to respond to your request. This constitutes the Citys response to your request.

Your request is denied.

Your request is denied as seeking records related to criminal and/or noncriminal investigations.

65 P.S. 67.708(b)(16), (17). See Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa.Commw. 2010) (finding police incident report exempt from disclosure pursuant to Section 708(b)(16)).

Additionally, your request is denied to the extent the records requested reflect:

Personally identifying information, including but not limited to home and/or cell phonenumbers, email addresses, social security numbers and payroll numbers. 65 P.S. 67.708(b)(6)(i)(A).

Dates of birth. Governors Office of Admin. v. Purcell, 2011 Pa. Commw. LEXIS 619 (Pa.Commw. Dec. 29, 2011);see alsoDelaware Co. v. Schaefer, No. 256 C.D. 20112012 Pa.Commw. Unpub. LEXIS 211 (Pa. Cmwth. March 22, 2012) (finding that the holding inPurcell


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that the dates of birth of state employees were exempt under 65 P.S. 67.708(b)(1)(ii) was

equally applicable to county employees).

The home addresses of individuals. 65 P.S. 67.708(b)(1)(ii). The City further notes that therelease of home addresses has constitutional privacy implications under both the United States

and Pennsylvania Constitutions. Pa. Const. Article I, 1 and 8; United States Constitution.

See, e.g., Pa. State Educ. Ass'n v. Dep't of Cmty. & Econ. Dev., 981 A.2d 383, 386 (Pa.Commw. 2009) (entering preliminary injunction barring release of home addresses of public

school employees finding that public disclosure of Employees home addresses would

constitute immediate and irreparable harm to Employees right to privacy), affd Pa. StateEduc. Ass'n v. Commonwealth, 2 A.3d 558, 589 (Pa. 2010);see also Pa. State Educ. Ass'n v.

Commonwealth, No. 195 MM 2010, 2010 Pa. LEXIS 2520 (Pa. Nov. 1, 2010) (staying

Commonwealth Court Order pending disposition of the appellants appeal to the

Pennsylvania Supreme Court and holding that the entry of the preliminary injunction . . . shallremain in effect.);Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (holding that case

law reflect[s] the general understandingthat home addresses are entitled to some privacy

protection, whether or not so required by statute and that sex offenders have a non-trivial

privacy interest in their home addresses).

The above information is commonly included on police incident reports.

Subject to, and without waiving the foregoing, the City exercises its discretion to release certain

redacted police incident reports outside the Right to Know Act directly from Records upon payment of

the applicable fee. More information is available at:http://www.phila.gov/records/PoliceFire/Reports.html. As a convenience attached is a Police Incident

Request Form (82-47) , which may be used to request a police incident report from Records. Request

forms for police incident reports must be submitted to:

The Department of Records

Incident Reports

Room 167, City HallPhiladelphia, PA 19107

(215) 686-2266

District Control Numbers and all applicable fees must be included with your request form. Please be

further advised that the Philadelphia Police Department will require specific locations (street

addresses) and times, in addition to a specific date, in order to provide you with District Control

Numbers.

To appeal the denial pursuant to 65 P.S. 67.708(b)(16) regarding records relating to a

criminal investigation, you may file an appeal with the Philadelphia District Attorneys Office as

provided in 65 P.S. 67.1101 and 65 P.S. 503(d)(2). You have 15 business days from the mailingdate of the Citys response to challenge the response. Please direct any appeal to DA Appeals Officer,

Attn: Priya Travassoss, Three South Penn Square, Philadelphia PA 19107-3499 and copy the

undersigned.

Should you wish to contest any part of this decision, other than the denial pursuant to 65

P.S. 67.708(b)(16) regarding records relating to a criminal investigation, you may file an
http://www.phila.gov/records/PoliceFire/Reports.htmlhttp://www.phila.gov/records/PoliceFire/Reports.htmlhttp://www.phila.gov/records/PoliceFire/Reports.html


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appeal with the Office of Open records as provided for in 65 P.S. 67.1101. You have 15

business days from the mailing date of the Citys response to challenge the response. Please

direct any appeal to the Office of Open Records, Commonwealth Keystone Building, 400 NorthStreet, 4th Floor, Harrisburg, PA 17120-0225 and copy the undersigned.

Please be advised that this correspondence will serve to close this record with our office as

permitted by law.

Respectfully submitted,

Benjamin S. Mishkin

cc: Lt. Edward Egenlauf, Open Records Officer, Philadelphia Police Department


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=xhibit D


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=xhibit =


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LAW DEPARTMENT


1515ARCH STREET


Shelley R. Smith

City Solicitor

Katharine L. Janoski

Assistant City Solicitor(215) 683-5025 (Tel.)

(215) 683-5069 (fax)

[email protected]


April 21, 2014

VIA ELECTRONIC MAIL ONLY

Austin Nolen

[email protected]


Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia (the City)Police Department (PPD) with

your request pursuant to the Pennsylvania Right-To-Know Law, 65 P.S. 67.101 et seq. (the Actor

RTKL).

On March 10, 2014, the PPD received your request for the following information:

I. Any and all records related to the training session for the Pledge of Resistance

demonstration and civil disobedience action which occurred on March 8th and March 10th,

2014 at 320 Arch Street Philadelphia, PA, including the following records:

a. Any records containing the observations, including photographs, videos, audio

recordings and notes, of Philadelphia Police Department (PPD) officers and

detectives in attendance at the above-mentioned public training or who observed theattendees;

II. Any and all records related to the Pledge of Resistance demonstration and civildisobedience action which occurred on March 10th, 2014 at the William J Green FederalBuilding, 600 Arch Street, Philadelphia, PA, including the following records:

a. Operational and staffing plans for PPDs response to the action;

b. Photographs, videos and notes taken by PPD officers and detectives which

document the action, including audio-visual records created by equipment invehicles;


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c. Intelligence product created or maintained by PPD related to the action, including

but not limited to assessments or Situation Information Reports generated by theFederal Bureau of Investigation;

d. Incident reports or criminal citations written by PPD officers related to the action;

e. Administrative reviews, major incident reports, after-action reports or any similar

document created in the aftermath of the action by PPD.

On March 17, 2014, the City informed you that it would require up to an additional thirty (30)

days to respond to your requests. However, on April 16, 17, and 18, the Law Departments office

building was closed due to flooding. The undersigned counsel did not have access to any records andcould not respond to your request or ask for an additional extension. This constitutes the Citys

response to your requests.

Your request is granted in part and denied in part, as described more fully below. At theoutset, the portions of your request seeking any and all records related to and any records

containingvarious subject matters are not sufficiently specific to enable the City to determine

specifically what records are being requested. The Act requires, among other things, that a writtenrequest identify or describe the records sought with sufficient specificity to enable the agency to

ascertain which records are being requested . . . . 65 P.S. 67.703.1 The requirement of specificity is

necessary to (1) ensure that a requestor provides enough information so that an agency candeterminewhether to grant or deny the request[;]Nanayakkara v. Casella, 681 A.2d 857, 859-60 (Pa. Commw.

1996), and (2) to prevent agencies from suffering undue interference and obstruction of their daily

functions; . . . [which] would be unavoidable if agency officials always could be subjected to broad and

unlimited requests for documents and records. Mooney v. Temple Univ. of the Commonwealth Sys. ofHigher Educ. Bd. of Trustees, 292 A.2d 395, 397 n.8 (Pa. 1972) (requests for inspection [must] be

specific and particular seeking disclosure of named documents or records rather than broad and

unlimited requests for undefined bodies of documents or records);see also, e.g.,Arduino v. Borough

of Dunmore, 720 A.2d 827, 831 (Pa. Commw. 1998) (holding that a request for all records related tothe disbursement of the funds for [certain] public projects lacked sufficient specificity), appeal

denied, 741 A.2d 195 (Pa. 1992);Hunt. v. Pa. Dept of Corr., 698 A.2d 147, 149 (Pa. Commw. 1997)

(holding that requests, including a request for all documents given by Department of Corrections toinmate and by inmate to Department, lacked sufficient specificity).

Pennsylvania courts have compared such broad, sweeping requests to discovery-type requestswhich, while potentially proper in the context of civil litigation, are improper under the Act. Berman

v. Pa. Convention Ctr. Auth., 901 A.2d 1085, 1089 (Pa. Commw. 2006) (holding that request for

[t]he most recent plans, construction, and design documents relating to the convention center

expansion was more in the nature of a discovery request than a proper request for public records);Associated Builders and Contractors, Inc. v. Pa. Dept of Gen Servs., 747 A.2d 962, 965-66 (Pa.

1This language is identical to sufficient specificity requirement in 2(c) of the prior Right-to-Know Law, 65 P.S. 66.1, et

seq. Accordingly, the case law interpreting this language in the context of the old Right-to-Know Law remains binding.

Dep't of Conservation & Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. 2010) (interpreting

language in the new Act by relying on prior precedent holding that [t]he language in the two definitions is virtually

identical. Faced with a prior judicial interpretation . . . .by . . . the Pennsylvania Supreme Court of the

account/voucher/contract language in the RTKL, even though issued in the context of the Old Law, we are not at liberty

here to ascribe a different meaning to the same language.).


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Commw. 2000) (holding that requests akin to document requests under the civil discovery rules, i.e.,

any and all documents relating to [subject matter] lack sufficient specificity); accord PSP v. OOR,

995 A.2d. 515, 517 (Pa. Commw. 2010) (The portion of the request seeking any and all records, filesor communications [concerning subject matter] is insufficiently specific for the PSP to respond to the

request.). Such broad requests have been, and will be, denied.

Moreover, both the Commonwealth Court and the Office of Open Records have held that whena request is susceptible to two different meanings . . . the necessary clarity for providing responsive

records is absent. See Rhoads v. Western Berks Water Authority, AP 2010-1184 (OOR Jan. 13,

2011); accordPa. Hous. Fin. Agency v. Ali, 43 A.3d 532, 535 (Pa. Commw. 2012). The City is notrequired to guess what records are being requested. Your requests for various records related to a

range of terms are unclear and subject to multiple interpretations. As the Office of Open Records has

explained, the City is not required to use its judgment to determine what is meant by a record of,related to, or concerning a subject. Woolson v. City of Philadelphia, AP 2012-1785 (Pa. OOR

Dec. 7, 2012) (finding requests for books, papers, photographs, machine readable materials, electronic

records, correspondence, notes, and other documentary materials concerning, related to or referencing

a property insufficiently specific). Depending on the degree of relation your request could encompassany one of a number of different subject matters or records.

As your request is insufficiently specific, the City is unable to assert all applicable grounds ofdenial and reserves the right to do so if your request is construed as seeking specific records after a

review of such records. Subject to, and without waiving the foregoing objections, your request could

encompass various exempt records and it is specifically denied to the extent that you seek:

Records the disclosure of which would be reasonably likely to result in a substantial anddemonstrable risk of physical harm to or the personal security of an individual pursuant

to 65 P.S. 67.708(b)(1)(ii).

Records maintained by an agency in connection with the military, homeland security,national defense, law enforcement or other public safety activity that if disclosed would

be reasonably likely to jeopardize or threaten public safety or preparedness or public

protection activity . . . under 65 P.S. 67.708(b)(2).

Records reflecting [1] internal predecisional deliberations of an agency, its members,employees or officials or [2] predecisional deliberations between agency members,

employees or officials and members, employees, or officials of another agency . . . or[3] any research, memos, or other documents used in predecisional deliberations. 65

P.S. 67.708(b)(10)(i)(A).

Notes or working papers exempt from disclosure pursuant to 65 P.S. 67.708(b)(12).

Records relating to a criminal investigation exempt from disclosure pursuant to 65 P.S. 67.708(b)(16)

2;see also Criminal History Record Information Act (CHRIA), 18 Pa.

C.S. 9101-9183 (protecting from disclosure intelligence information,investigative information and treatment information).

2To the extent the record requested relates to an investigation that is noncriminal in nature your request is further denied

pursuant to Section 708(b)(17).


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Furthermore, your request on its face asks for records exempt pursuant to the above-stated

grounds for denial.

Subject to and without waiving the forgoing, the only record responsive to the remaining

portions of your request is the attached Daily Complaint Summary from March 10, 2014. This type of

record is generally investigatory and is therefore generally exempt pursuant to 65 P.S. 67.708(b)(16), (17). In this instance, however, the requested record happens to not contain

investigatory information and the PPD is therefore willing to release it. Attached please find the

requested record. There are no other records responsive to your request. It is not a denial of accessunder the Act if the records requested do not exist. Cf.Jenkins vs. Pennsylvania Department of State,

AP 2009-0065 (Pa. OOR April 2, 2009).

Should you wish to contest any part of this decision, you may file an appeal with the Office of

Open records as provided for in 65 P.S. 67.1101. You have 15 business days from the date your

requests were deemed denied by operation of law.3 Please direct any appeal to the Office of Open

Records, Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, PA 17120-0225and copy the undersigned open records officer.

4

Please be advised that this response will close your request with our office as permitted by law.

Respectfully submitted,

Katharine L. Janoski

Assistant City Solicitor

Attachment

cc: Lt. Edward Egenlauf, Open Records Officer, Philadelphia Police Department

3Your requests were deemed denied on April 16, 2014, due to a flood in the Law Departments office. See 65 P.S.

67.506(b)(1)(i) (An agency may deny a requester access . . . when timely access is not possible due to fire, flood or other

disaster . . . .).4To appeal the reservation of denial pursuant to 65 P.S. 67.708(b)(16) regarding records relating to a criminal

investigation, you may file an appeal with the Philadelphia Dis trict Attorneys Office as provided in 65 P.S. 67.1101 and

65 P.S. 503(d)(2). You have 15 business days from the mailing date of the Citys response to challenge the response.

Please direct any appeal to DA Appeals Officer, Attn: Brad Bender, Three South Penn Square, Philadelphia PA 19107-

3499 and copy the undersigned.

Office of Open Records Appeal CP 2014-0614

Documents

Transcript of Office of Open Records Appeal CP 2014-0614