                           [J-93-2016][M.O. – Dougherty, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


PENNSYLVANIA STATE POLICE,                     :   No. 25 MAP 2016
                                               :
                   Appellant                   :   Appeal from the Order of the
                                               :   Commonwealth Court dated 7/7/15 at
                                               :   No. 1146 CD 2014 affirming in part,
              v.                               :   reversing in part and remanding in part
                                               :   the Final Determination of the Office of
                                               :   Open Records at No. AP 2014-0828
                                               :   dated 6/17/14
MICHELLE GROVE,                                :
                                               :
                   Appellee                    :   ARGUED: September 14, 2016




                       CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: June 20, 2017


       I agree with Justice Mundy that the majority’s approach to public access to MVRs

under the Right-to-Know Law departs from the statutory prescription that disclosure is

not required of records “relating to . . . a criminal investigation.” 65 P.S. §67.708(b)(16)

(emphasis added). While the majority stresses the policy of public access underlying

the RTKL, this Court has previously recognized that such policies are tempered,

throughout the enactment, by explicit boundaries. See Dental Benefit Providers, Inc. v.

Eiseman, 633 Pa. 205, 220, 124 A.3d 1214, 1223 (2015). Here -- presumably upon the

consideration that criminal investigations can involve sensitive personal interests of

citizens, including witnesses who are not suspected of criminal conduct 1 -- the

1
  Cf. Harvard Law Review Ass'n, Considering Police Body Cameras, 128 HARV. L. REV.
1794, 1808 (2015) (“[I]ncreasing transparency necessarily means more people will view
(continued…)
Legislature chose a broad “related to” nexus, which I believe should be given effect in

the judicial interpretative exercise.2

       There is another aspect to this case developed by the Pennsylvania State Police

but not squarely addressed by the majority. In this regard, the provision of the RTKL

requiring redaction pertains only to materials which are a “public record, legislative

record or financial record” in the first instance. 65 P.S. §67.706. Under the plain terms

of the RTKL and prevailing Commonwealth Court precedent, however, records that are

excepted from disclosure under Section 708 simply are not “public records” and,

therefore, do not meet the criteria for mandatory redaction (unless they qualify as

legislative or financial records, considerations which are not presently in issue). See id.

§67.102 (defining “public record” as records that, among other features, are “not exempt

under section 708”); Saunders v. DOC, 48 A.3d 540, 543 (Pa. Cmwlth. 2012) (“Pursuant



(…continued)
body-camera footage, which will frequently feature civilians who may not want the
recordings of themselves shared.”).

2
  As I read the State Police’s brief, it is consistent with the above, and I believe that the
majority is inaccurate in asserting that the agency seeks a bright-line rule that there can
be no mandatory disclosure of any MVR under the RTKL. Compare Majority Opinion,
slip. op. at 28 (indicating that the State Police argue that MVRs “always contain criminal
investigative material”), with Brief for the State Police at 13-14 (“[T]he uncontroverted
evidence . . . demonstrates that there is not a one-size-fits-all solution to whether a
MVR is a public record. . . . [E]ach individual MVR . . . must be evaluated on its own
merits to determine whether it is related to a criminal investigation . . ..”).

Parenthetically, I note that some other state legislatures have provided a more stringent
litmus in order for the government to meet its burden to support non-disclosure of
records. For example, the Ohio statute requires, to justify application of the corollary
criminal investigation exception, a demonstration that release would create a high
probability of disclosure of, inter alia, specific confidential or investigatory information.
See OHIO REV. CODE ANN. §149.43(A)(2). The Pennsylvania General Assembly, by
contrast, has imposed a requirement of mere relation to a criminal investigation.


                           [J-93-2016][M.O. – Dougherty, J.] - 2
to Section 706, the redaction requirement only applies to records that are determined to

be ‘public records.’”).

       From my point of view, this definitional aspect raises conceptual difficulties, since

one can imagine many records which might relate to a criminal investigation (or another

category of the Section 708 exceptions) in some fashion, but may be readily separable

from other self-contained information of a type that the Legislature designed to be

accessible. Nevertheless, I find the language of the statute to be plain. See 1 Pa.C.S.

§1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter

of it is not to be disregarded under the pretext of pursuing its spirit.”). 3 Moreover, the

status of records excepted under Section 708 as non-public records not subject to

mandatory redaction is embodied in prevailing precedent of the Commonwealth Court

that is not confronted in Appellee’s advocacy, and, indeed, in some respects appears to

be supported in her brief.   See, e.g., Brief for Appellee at 7 (referring to Section 708

exceptions as “exemptions from the definition of a public record” (emphasis added)).

Thus, I find this case to be a poor vehicle in which to consider overturning the prevailing

precedent of the intermediate court.

3
  Given the conceptual issue, it is possible that this Court might approve a test or tests
to distinguish between records that squarely fall within an exception category and those
that might merely contain collateral information of a variety implicated by the exceptions.
See, e.g., DOC v. St. Hilaire, 128 A.3d 859, 866 (Pa. Cmwlth. 2015) (explaining that,
although inmate injury reports may contain exempt medical information, such a
possibility did not transform the reports into exempt medical records and, thus, the
reports were subject to redaction in accord with Section 706). In view of the very
disparate framing of the many discrete exemptions in Section 708, however, it appears
to me that it would be very difficult to fashion a cohesive test across the various
subsections.

In any event, as developed below, I find it to be sufficiently established that the MVRs in
this case contain substantial criminal investigative material so as to meet the Section
708(b)(16) exception for such records.


                          [J-93-2016][M.O. – Dougherty, J.] - 3
       Important to the present case, the Commonwealth Court determined, adverse to

Appellee’s position, that witness interviews recorded in the MVRs comprised a criminal

investigation, such that portions of the audio recording were excepted from disclosure.

See PSP v. Grove, 119 A.3d 1102, 1110 (Pa. Cmwlth. 2015). Given that Appellee was

aggrieved by this holding but did not seek to appeal, from my point of view, the ruling is

binding.

       I conclude that this holding resolves the “relating to” question, since it is self-

evident that audio and video recordings depicting a criminal investigation relate to that

investigation.   Accord Concurring and Dissenting Opinion, slip op. at 5 (Mundy, J.)

(“Having accepted that [the troopers] engaged in a criminal investigation upon arriving

at the scene of the accident, the MVRs’ record of the steps the officers took, the

persons they spoke with, and the state of the scene they encountered became a record

related to that investigation.”). In this regard, I find the effort to detangle or decouple

audio and video representations of a criminal investigation to be unwarranted,

particularly since, as the State Police emphasize, the Legislature explicitly contemplated

that “videos” fall within the protection of the criminal-investigation exception. 65 P.S.

§67.708(b)(16)(ii).4

       I appreciate that the use of recording devices on police vehicles, and on the

persons of officers for that matter, offers a potent means for advancing transparency

and accountability.     It also raises countervailing concerns, including potential

compromises of privacy and law enforcement investigations.              In my view, the

appropriate balance among such important interests is a matter most closely suited to

determination by the political branch, which, for the present at least, has designed a


4
  I also take a similar view with respect to the application of the Criminal History Record
Information Act. See 18 Pa.C.S. §§9101-9183.


                          [J-93-2016][M.O. – Dougherty, J.] - 4
broad criminal-investigations exception to public access extending to MVRs and has not

provided for redaction of non-public records such as those exempted under Section

708.

       Given that I do not support the majority’s disclosure mandate, I respectfully

dissent relative to such holding.




                          [J-93-2016][M.O. – Dougherty, J.] - 5
