Issued 06082009 - Investigative, complaint

							                             FINAL DETERMINATION

IN THE MATTER OF                             :
                                             :
ANTHONY ASCHMAN                              :
Complainant                                  :
                                             :       Docket No.: AP 2009-0378
v.                                           :
                                             :
                                             :
PENNSYLVANIA DEPARTMENT OF                   :
HEALTH                                       :
Respondent                                   :
                                             :

                                   INTRODUCTION

       Anthony Aschman (the “Citizen”) filed a right-to-know request (the “Request”)

with the Department of Health (the “DOH”) pursuant to the Right-to-Know Law, 65 P.S.

§ 67.101, et. seq. (the “RTKL”), seeking a copy of a complaint regarding smoking at a

maintenance shed along the Pennsylvania Turnpike. The DOH denied the request stating

that the reports are exempted from public release as part of a noncriminal investigation.

The Citizen filed a timely appeal with the Office of Open Records (the “OOR”).

       For the reasons set forth in this Final Determination, Citizen’s appeal is denied

and the DOH is not required to provide the records requested.




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                              FACTUAL BACKGROUND

       On April 16, 2009, the Citizen filed the Request with the DOH. Specifically, he

sought a copy of a complaint that had been filed with the DOH regarding smoking at the

Slatington Maintenance Shed of the Pennsylvania Turnpike.

       Patty Sheaffer, the DOH’s Open Records Officer, responded within the required

five (5) business days on April 21, 2009 and denied the request finding that the record is

exempt from public access under the RTKL. The DOH stated that the complaints are

exempted as part of a noncriminal investigation pursuant to 65 P.S. § 67.708(b)(17)(i).

Ms. Sheaffer properly advised the Citizen of his right to appeal. The Citizen filed a

timely appeal to the OOR on May 8, 2009.

                                  LEGAL ANALYSIS

       The OOR is authorized to hear appeals for all Commonwealth and local agencies.

See 65 P.S. §67.503(a). The DOH is a Commonwealth agency subject to the RTKL. See

65 P.S. § 67.301.

   Section 102 of the RTKL, defines the term “record” as:

       “Information, regardless of physical form or characteristics, that documents a
       transaction or activity of an agency and that is created, received or retained
       pursuant to law or in connection with a transaction, business or activity of the
       agency. The term includes a document, paper, letter, map, book, tape, photograph,
       film or sound recording, information stored or maintained electronically and a
       data-processed or image- processed document.”

The RTKL provides further clarity in defining a “public record” as:

       “A record, including a financial record, of a Commonwealth or local agency that:
       (1) is not exempt under section 708; (2) is not exempt from being disclosed under
       any other Federal or State law or regulation or judicial order or decree; or (3) is
       not protected by a privilege.”

   65 P.S. §67.102.




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   The RTKL is clear that agencies bear the burden of proving the applicability of any

exceptions and it is not the role of the OOR to identify potential areas of exemption.

Specifically, § 708 in pertinent part states:

       (a) Burden of proof. —

               (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.

Preponderance of the evidence has been defined as "evidence which as a whole shows

that the fact sought to be proved is more probable than not." Black's Law Dictionary 1064

(8th ed. West 2004). See also Commonwealth v. Williams, 615 A.2d 716 (PA. 1992).

       The DOH states that that the complaint is part of a noncriminal investigation and

exempted from public release under the plain language § 708(b)(17). Section 708(b)(17)

states that a local or Commonwealth agency can withhold the following records:

         “A record of an agency relating to a non-criminal investigation,
         including

               (i) Complaints submitted to an agency.
               (ii) Investigative materials, notes, correspondence and reports.
               (iii) A record that includes the identity of a confidential source,
                     including individuals subject to the act of December 12,
                     1986 (P.L.1559, No.169), known as the Whistleblower Law.
               (iv) A record that includes information made confidential by law.
               (v) Work papers underlying an audit.
               (vi) A record that, if disclosed, would do any of the following:
                        Reveal the institution, progress or result of an agency
                        investigation, except the imposition of a fine or civil
                        penalty, the suspension, modification or revocation of a
                        license, permit, registration, certification or similar
                        authorization issued by an agency or an executed
                        settlement agreement unless the agreement is determined
                        to be confidential by a court.




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See 65 P.S. §67.708 (emphasis added).

       The plain language of § 708 unambiguously exempts complaints submitted to an

agency. Thus, the complaint that was submitted to the DOH can be withheld. The OOR

notes that the RTKL does not require an investigation to be a formal proceeding for the

exemption to apply. Complaints are investigative by nature, and an investigation by its

nature involves examining, considering, and probing complaints. Because the facts

establish that the record requested is a complaint, the DOH met its burden by showing

that § 708(b)(17)(i) applies.

                                    CONCLUSION

       For the foregoing reasons, this appeal is denied, and the DOH is not required to

take any further action. The parties are advised that this is a Final Determination and is

binding on the parties. Within thirty (30) days of the mailing date of this determination,

either party may appeal to the Commonwealth Court. All parties must be served with

notice of the appeal. The Office of Open Records also shall be served notice and have an

opportunity to respond according to court rules. 65 P.S. §67.1302.



FINAL DETERMINATION ISSUED: June 8, 2009




__________________________________
APPEALS OFFICER
NATHANAEL J. BYERLY, Esq.




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