            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Department of Labor and           :
Industry,                                      :
                       Petitioner              :
                                               :
                     v.                        :   No. 1583 C.D. 2019
                                               :   Submitted: May 11, 2020
Chester Darlington,                            :
                            Respondent         :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COHN JUBELIRER                               FILED: June 9, 2020


       The Pennsylvania Department of Labor and Industry (Department) petitions
for review of the October 16, 2019 Final Determination of the Office of Open
Records (OOR), which granted in part and denied in part Chester Darlington’s
(Requester) appeal of the Department’s denial of his Request under the Right-to-
Know Law (RTKL).1 The OOR ordered the Department to provide copies of
regular boiler inspection reports,2 but documentation relating to the Department’s
investigation of a 2016 incident would remain exempt from disclosure pursuant to
Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17), which relates to




       1
         Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
       2
         The parties describe the field inspections with various terms throughout their briefs
including: periodic, routine, and regular inspections.
noncriminal investigations.3 On appeal, the Department only argues that the OOR
erred in ordering the periodic boiler inspection reports to be produced, asserting
they are exempt from disclosure as they constitute noncriminal investigations
conducted pursuant to the Department’s authority under the Boiler and Unfired
Pressure Vessel Law4 (Boiler Law).                 Requester responds that the inspections
mandated by the Boiler Law do not constitute noncriminal investigations, and
therefore, the OOR did not err in its Final Determination. Upon review, we affirm.

I.     BACKGROUND
       On August 28, 2019, Requester submitted a Request to the Department’s
Agency Open Records Officer (AORO), seeking “any and all records and relevant
materials . . . including but not limited to correspondence, inspections,
investigation reports, citations, violations, penalties, photographs, etc. pertaining to
an incident which occurred on June 15, 2016 at Veolia Energy Plant Philadelphia .
. . .” (Reproduced Record (R.R.) at 10a.) The Department “denied [the] [R]equest

       3
         Section 708(b)(17) states, in relevant part, that “[a] record of an agency relating to a
noncriminal investigation, including . . . [i]nvestigative materials, notes, correspondence and
reports” are exempt from disclosure. 65 P.S. § 67.708(b)(17). In addition, the RTKL exempts
from disclosure:

       (vi) A record that, if disclosed, would . . .

               (A) 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.

65 P.S. § 67.708(b)(17)(vi)(A).
        4
          Act of June 18, 1998, P.L. 655, 35 P.S. §§ 1331.1-1331.18.



                                                   2
because records of the Department relating to a noncriminal investigation . . . and
records that would reveal the institution, progress or result of a Department
investigation are exempt from disclosure under the RTKL.”              (Id. at 11a.)
Furthermore, the Department noted that those records did not fall within the
exception to the noncriminal investigation exemption, specifically that the records
did not include any indication of an “imposition of a fine or civil penalty; the
suspension, modification, or revocation of a license, permit, registration,
certification, or similar authorization; or an executed settlement agreement.” (Id.)
      On September 9, 2019, Requester appealed to the OOR and stated that the
Department’s “blanket denial [was] improper. Redactions should [have] be[en]
made and the remainder produced. . . . In addition, the response is vague and non-
specific by using the words ‘among others’ and an incomplete citation to the
regulation.” (Id. at 9a.) The Department filed a position statement, wherein it
claimed that “[b]ecause the weight of the evidence establishes that the requested
records are exempt from disclosure, the Department’s denial should be affirmed.”
(Id. at 20a.) The Department specifically explained that it investigated an incident
that occurred in June 2016 at Veolia Energy Plant Philadelphia for alleged
violations of the Boiler Law, pursuant to the Department’s powers under Section 4
of the Boiler Law, 35 P.S. § 1331.4. “Therefore, the Department’s investigation
was conducted pursuant to the Department’s legislatively granted fact-finding
powers.” (R.R. at 20a.) The Department also submitted an attestation by Matthew
W. Kegg, Director of the Department’s Bureau of Occupational and Industrial
Safety (BOIS).     (Id.)   Mr. Kegg stated that BOIS conducted a thorough
examination of the records and determined the records fell under the “statutory




                                          3
mandate” of the Boiler Law and that none of the records fell into an exception to
the noncriminal investigation exemption. (Id. at 20a-21a, 23a.)
       On September 26, 2019, the OOR emailed the parties requesting that the
Department provide a supplemental attestation with additional descriptions and
details as to the records.5 On October 1, 2019, the Department submitted the
supplemental attestation of Mr. Kegg in response to the OOR’s request. (Id. at
33a.) Mr. Kegg stated that some of the inspections were “regular inspections
performed on a periodic basis. Others, however, [were] the direct result of a boiler
and/or other regulated pressure vessel incident or a complaint.” (Id. at 35a.)
Additionally, Mr. Kegg noted that the inspection reports of the boiler date back to
1991. (Id. at 35a-36a.) According to Mr. Kegg,

       [t]hese electric inspection reports provide information regarding the
       equipment inspected; whether it passed or failed inspection; specific
       location in the plant; manufacturer; and a description of any
       deficiencies found by the inspector. Because these inspection reports
       contain information relating to whether or not deficiencies were
       uncovered by inspectors in the course of legally[]mandated safety
       inspections of the equipment, they constitute records that would reveal
       the institution, progress or result of an agency investigation.

(Id. at 36a.) Mr. Kegg also stated that investigations and periodic inspections
include specific reviews of the equipment and interviews with maintenance staff
and other employees who have knowledge of the equipment’s operation. (Id.)


       5
          Requester responded the same day to provide “context” for the Request. (R.R. at 27a.)
In the reply e-mail, Requester stated that he represented Flowserve, Inc. and “Veolia Energy, the
location of the subject incident[,] [was] asserting that [his] client’s product caused the incident.
Thus, [he] was seeking information about the incident and how it may have occurred.” (Id.) The
OOR then asked Requester for an extension to issue a Final Determination so that any additional
evidence provided could be considered, which Requester allowed. (Id. at 30a.)



                                                 4
       On October 16, 2019, the OOR issued its Final Determination, which
granted in part and denied in part Requester’s appeal. The OOR noted that there
were 22 inspection reports that the Department identified as responsive records.
(Final Determination at 4.) In reviewing the original and supplemental attestations
provided by Mr. Kegg, the OOR stated that the attestations do “not establish that
the inspections at issue rise to the level of a noncriminal investigation.” (Id. at 6.)
In reaching this conclusion, the OOR set forth the standard for noncriminal
investigations, as established by this Court in Department of Health v. Office of
Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010). Specifically, the OOR explained
that, to constitute a noncriminal investigation, “an agency must demonstrate that ‘a
systemic or searching inquiry, a detailed examination, or an official probe’ was
conducted regarding a noncriminal matter,” which was “‘conducted as part of an
agency’s official duties.’” (Final Determination at 4-5 (quoting Dep’t of Health, 4
A.3d at 810-11, 814).) Furthermore, the OOR explained that “the investigation
must specifically involve an agency’s legislatively granted fact-finding powers.”
(Id. at 5.)
       The OOR then examined the Boiler Law, which according to the OOR,
requires annual field inspections to be performed by an inspector either employed
by the owner of the boiler, an insurer, a contractor, or a Department inspector. The
OOR noted that reports from those inspections must be filed within 15 days and, in
the event of an accident, the Department must be immediately notified. The OOR
found the Boiler Law authorizes the Department to investigate violations and
punish violators. (Id.) With that background, the OOR turned to the regular
inspections at issue. The OOR considered the attestations submitted by Mr. Kegg
and determined the Department did not meet its burden of showing the regular



                                          5
boiler inspections rise to a level of noncriminal investigation.         The OOR
determined that this matter was distinguishable from Department of Health.
Although both cases involved physical inspections, the OOR found the regular
inspections here do not raise “the same concerns about witness confidentiality or
harm to reputation” as was present in Department of Health, which also involved
review of nursing home and patient records and interviews of patients and staff,
disclosure of which raised public policy concerns. (Id. at 6-7.)
      In addition, the OOR noted that the boiler inspections at issue were
performed regularly every 12 months regardless of the inspection’s findings, and
that the owner of a boiler may decide to have the inspection done by a private,
certified inspector. “[A]bsent evidence that any given [regular] boiler inspection
report touched off a more detailed inquiry by the Department,” the OOR stated it
could not “conclude that such reports rise to the level of a noncriminal
investigation within the meaning of the RTKL.” (Id. at 7.) The OOR concluded
that the Department was, therefore, required to provide copies of the regular boiler
field inspection reports to Requester. However, the OOR distinguished the records
related to the 2016 incident, which it found were related to a noncriminal
investigation of the Department.       Requester did not appeal this aspect of the
OOR’s Final Determination and, therefore, only the regular boiler field inspection
reports are at issue in this appeal.
      The Department filed a Petition for Review of the OOR’s Final
Determination wherein it asserted that

      [t]he OOR erred when it found that routine boiler inspections do not
      rise to the level of noncriminal investigations because every boiler
      safety inspection is conducted as part of the Department’s official
      duties, specifically involves the Department’s legislatively granted



                                           6
       fact-finding powers, and constitutes a “systematic or searching
       inquiry, a detailed examination, or an official probe.”

(Petition ¶ 18 (quoting Dep’t of Health, 4 A.3d at 811).) The Department asserted
that even if the Court would consider a boiler safety inspection not to be a
noncriminal investigation, the Request, on its face, sought information related to an
incident, which warranted a noncriminal investigation, and those investigations are
exempt under Section 708(b)(17) of the RTKL.

II.    PARTIES’ ARGUMENTS
       On appeal,6 the Department argues that the OOR erred by concluding that
the regular inspection records did not relate to a noncriminal investigation. The
Department asserts that the Boiler Law grants the Department authority to conduct
a boiler safety inspection to determine compliance with the Boiler Law, whether or
not the inspections are linked to a reported incident. Further, the Department
argues that there does not need to be an incident or “triggering event” for an
investigation to be considered a noncriminal investigation. (Department’s Brief
(Br.) at 14.) The Department asserts that the OOR precedent does not support the
OOR’s determination that drew a distinction between regular inspections and
investigations into alleged incidents. Furthermore, the Department argues that the
case law supports an interpretation that the Department’s regular safety inspections
qualify as noncriminal investigations under the RTKL. The Department cites to

       6
          Our scope of review of the RTKL is plenary. Pa. Pub. Util. Comm’n v. Gilbert, 40
A.3d 755, 758 n.5 (Pa. Cmwlth. 2012). Our standard of review in open records cases is an
independent review of the OOR’s order and we may substitute the OOR’s findings of fact for our
own. Id. “A court reviewing an appeal from an OOR hearing officer is entitled to the broadest
scope of review, a review of the entire record on appeal along with other material, such as a
stipulation of the parties, or an in camera review of the documents at issue, and we may further
supplement the record through hearing or remand.” Id.



                                               7
Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755 (Pa. Cmwlth.
2012), Department of Environmental Protection v. Delaware Riverkeeper Network,
113 A.3d 869 (Pa. Cmwlth. 2015), and Michak v. Department of Public Welfare,
56 A.3d 925 (Pa. Cmwlth. 2012), arguing that these cases demonstrate that the
word used in classifying the actions of the government agency is not important and
instead it is whether the agency has conducted “a systematic or searching inquiry, a
detailed examination, or an official probe” as established in Department of Health.
      Additionally, the Department argues that the Request specifically asked for
all records pertaining to the 2016 incident. The Department asserts that because
the OOR ordered the release of regular investigations “unrelated to the
Department’s investigation,” “such documents fall outside the scope of
Requester’s [R]equest.” (Department’s Br. at 19.) Thus, any documents related to
regular inspections, the Department asserts, fall outside the Request.
      Requester argues that the OOR’s Final Determination was correct.
Requester asserts that there is a clear difference in the Boiler Law regarding
“inspection” and “investigation” activities, which are specifically delineated and
separated within the Boiler Law’s sections, noting that Section 9, 35 P.S. § 1331.9,
provides for inspections, and Sections 14 and 15, 35 P.S. §§ 1331.14-1331.15,
provide for investigations. (Requester’s Br. at 8.)      Requester asserts that the
Department ignores these distinctions to erroneously conclude that inspections fall
under the RTKL’s noncriminal investigation exemption. Requester further argues
that the cases cited by the Department do not apply in the case before us because,
under the Boiler Law, inspections and investigations are not “identical conduct and
should not be treated as being the same under the RTKL.” (Id. at 14.) Also,
Requester argues that Department of Health is distinguishable from the instant



                                          8
case, specifically citing the special concern over the privacy of health records in
nursing home inspections and the differences between health care laws and the
Boiler Law. Requester notes that in Department of Health, the evaluation at issue
was long and detailed, consisting of interviews and records with privileged medical
information. Requester asserts that the lack of privacy is proven by the Boiler Law
permitting third parties to conduct the mandated inspection in lieu of the
Department inspecting a boiler. Regarding the scope of the Request, Requester
argues that his Request was broad and requested the inspection records relating to
the incident. Requester further asserts that the OOR determined that the records
were responsive to the Request. Requester notes that the Department did not
object to this determination and thus has waived this issue.
      In its reply brief, the Department argues that Department of Health applies
because interviews about noncompliance with the Boiler Law also warrant
protection to promote truthful answers without “fear of retaliation or
embarrassment” and without condemnation from unsubstantiated statements or
allegations if released to the public.         (Department’s Reply Br. at 5-6.)
Furthermore, the Department argues that an “expectation of privacy” “is not
relevant to an analysis of whether the documents [Requester] requested are subject
to disclosure under the RTKL.” (Id. at 6.) In addition, the Department asserts that
the Boiler Law does not allow the owner of the boiler to decide who performs the
inspections, and instead that authority still lies with the Department as the
inspections must be performed by “the Department or by a Department-
Commissioned inspector.”       (Id. at 7.)    Finally, the Department asserts that
regardless of who is performing the inspection, the Department is still the decision-
maker on “whether the boiler’s certificate of inspection should be renewed,



                                          9
suspended or revoked . . . , whether a notice of deficiencies should be issued, . . . or
whether a boiler should be sealed because it is unsafe.” (Id.)


III.   DISCUSSION
       A Commonwealth agency’s records are presumed public, unless they fall
within an exemption under the RTKL. An agency is permitted to withhold “[a]
record of an agency relating to a noncriminal investigation,” which includes
“investigative materials, notes, correspondence[,] and reports,” and records that
would “[r]eveal 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 “[c]onstitute an unwarranted invasion of privacy.” 65 P.S.
§ 67.708(b)(17)(i), (ii), (vi)(A), and (vi)(C).              However, neither the term
“noncriminal” nor “investigation” are defined in the RTKL. Therefore, this Court
has previously analyzed their ordinary usage and interpreted “noncriminal” to
mean “the exemption of investigations other than those that are criminal in nature.”
Gilbert, 40 A.3d at 759 (citing Dep’t of Health, 4 A.3d at 810). The Court has
interpreted an “investigation” as “a systematic or searching inquiry, a detailed
examination, or an official probe.” Dep’t of Health, 4 A.3d at 811. The burden is
on the Department to prove, by a preponderance of the evidence7 that an exemption
applies. See 65 P.S. § 67.708(a)(1).




       7
         “The preponderance of the evidence standard, which is ‘the lowest evidentiary standard,
is tantamount to a more likely than not inquiry.’” Smith on behalf of Smith Butz, LLC v. Pa.
Dep’t of Envtl. Prot., 161 A.3d 1049, 1059 n.10 (Pa. Cmwlth. 2017) (citation omitted).



                                              10
       We begin with a brief review of the Boiler Law, which the Department
contends provides the basis for its claim that the regular inspections constitute
noncriminal investigations under the RTKL. The Department is empowered by the
Boiler Law to enforce the Boiler Law, as well as promulgate and enforce related
regulations. Section 13(a) of the Boiler Law, 35 P.S. § 1331.13(a). The Boiler
Law mandates that a boiler or unfired pressure vessel installed in Pennsylvania
must adhere to the Boiler Law and related regulations promulgated by the
Department. Section 3 of the Boiler Law, 35 P.S. § 1331.3. A boiler or unfired
pressure vessel must follow the design, construction, and installation requirements
adopted by the Department to ensure safety. 35 P.S. § 1331.4. Additionally,
owners must register their boiler or unfired pressure vessel with the Department
and operation is not allowed until a preliminary inspection is completed. Section 6
of the Boiler Law, 35 P.S. § 1331.6.
       Once operational, boilers are also subject to required regular field
inspections, and the reports of the inspections must be given to the Department.
Section 9(f) of the Boiler Law, 35 P.S. § 1331.9(f).8 The owner may arrange for
the inspection, either by requesting an insurance company’s inspector, an
inspector employed by the owner of the boiler, or a commissioned private

       8
           Section 9(f) of the Boiler Law states:

       Each inspector shall forward to the department a report of each field inspection
       made of any boiler or unfired pressure vessel showing the exact condition of the
       boiler or unfired pressure vessel. Inspection reports shall be submitted within 15
       days of the date of inspection. Inspection reports received more than 15 days
       after the inspection was made may be considered invalid by the [D]epartment.
       The report shall be filed on the form and in the manner prescribed by the
       [D]epartment.

35 P.S. § 1331.9(f).



                                                    11
inspector hired by the owner of the boiler to complete the inspection. 35 P.S.
§ 1331.9(a)-(c). However, if the owner does not assure that a field inspection has
been arranged, a Department inspector shall perform the inspection, and the owner
“shall be responsible to pay the [D]epartment a fee for the inspection.” 35 P.S.
§ 1331.9(d). Should the owner “fail[] to assure a field inspection is performed[,] . .
. the owner shall be subject to appropriate enforcement action as provided under
this act.” 35 P.S. § 1331.9(e). According to the Department’s regulations, an
inspector must be “an individual holding a current Pennsylvania Inspector
Commission [in order] to inspect boilers and unfired pressure vessels in this
Commonwealth.” 34 Pa. Code § 3a.111. Should an inspector find that the “boiler
is dangerous to life or property, the inspector shall immediately notify the
[D]epartment of all deficiencies.” Section 10(f) of the Boiler Law, 35 P.S. §
1331.10(f). The Department then determines whether the boiler is fit for operation.
Id. If the inspector finds that the boiler is in compliance with the codes and safe
for operation, the Department shall issue a certificate of operation. Section 11 of
the Boiler Law, 35 P.S. § 1331.11.
      Should an “accident or explosion” occur, the “owner, user or operator shall
immediately notify the Department.” 34 Pa. Code § 3a.93(a). Until a “Department
inspection” occurs, the boiler, its parts, and equipment “may not be removed or
disturbed.” 34 Pa. Code § 3a.93(b). In addition, under Section 14 of the Boiler
Law, the Department has the power to investigate any violations and may enter
any building or structure housing boilers for the purpose of enforcing the Boiler
Law. 35 P.S. § 1331.14.
      In the case before us, the OOR determined that investigations into violations
and regular inspections were two distinct activities under the Boiler Law, and the



                                         12
regular inspections did not fall within the noncriminal investigation exemption of
the RTKL. The OOR explained that regular boiler inspections are done on a
regular basis, “regardless of the findings of the inspection.” (Final Determination
at 7 (citing 35 P.S. § 1331.10).) The OOR also noted that owners of boilers could
satisfy the regular inspection requirements without any action by the Department.
(Id.) The OOR cited to Department of Health and decided that regular boiler
inspections did not raise the same concerns of “witness confidentiality or harm to
reputation” that were at issue in that case. (Final Determination at 6-7.) In
Department of Health, 4 A.3d at 806-07, the requester sought records from the
Department of Health (DOH) regarding surveys and inspections completed
pursuant to the Health Care Facilities Act9 (HCFA). The issue before this Court
was whether those inspections and surveys mandated by the HCFA fell under the
noncriminal investigation exemption of Section 708(b)(17) of the RTKL. Id. at
809.
       In analyzing whether the “inspections” under the HCFA qualified as
“investigations” under the RTKL, this Court pointed to the long list of
requirements for inspections to determine whether the nursing homes were in
compliance with the HCFA and other federal and state laws and regulations,
including: interviews with staff; reviewing records of patients and the nursing
home; inspection of the nursing home itself; and overall observation of operations.
Id. at 811.     The Court concluded that this thorough review constituted “a
systematic or searching inquiry, a detailed examination, or an official probe” and
thus was an “investigation” into whether the nursing home was in compliance with

       9
         Act of July 19, 1979, P.L. 130, as amended, added by Section 7 of the Act of July 12,
1980, P.L. 655, 35 P.S. §§ 448.807–448.808, 448.813.



                                             13
state and federal laws and regulations. Id. at 811-12. Additionally, the Court
noted the strong public policy concerns “support interpreting Section 708(b)(17) as
being applicable to the particular [i]nspections and [s]urveys conducted by the
Department.” Id. at 811. If those HCFA inspections became public, the Court
reasoned, the release of interviews could cause a chilling effect on residents and
staff of nursing homes to provide information in the future for fear of retaliation or
embarrassment. Id. Thus, the Court noted, those inspections and surveys would be
less accurate and “no longer be an effective means of monitoring a nursing home’s
compliance.” Id. The Court also stated that there were serious concerns over
confidentiality of patient information and records. Id. at 811-12.
      Following Department of Health, this Court has examined other forms of
inspections and determined they were exempt from disclosure.           In Michak, a
request was made for relevant License Inspection Summaries (LISs) performed by
the Department of Public Welfare, Office of Child Development and Early
Learning.   A LIS describes “deficiencies in a licensee’s compliance with the
relevant statute and regulations, and provides space for the licensee to set out a
plan of correction.” 56 A.3d at 928-29. The requester in Michak argued that the
LISs were not exempt because they “modif[ied] or condition[ed] day care
providers’ certificates of compliance,” (id. at 928), and that the LIS information
was already published on the Department of Public Welfare’s website, (id. at 929),
but did not argue that inspections were not covered under the noncriminal
investigation exemption. This Court determined that the OOR properly determined
that LISs fell within the noncriminal investigative exemption.
      In Gilbert, we also reviewed inspections, specifically gas utility safety
inspections, completed for certification. We concluded those inspections “involve



                                         14
systematic, searching, detailed examinations of a natural gas utility’s operations
and whether such operations were in compliance with the applicable federal and
state pipeline safety regulations.” 40 A.3d at 760. The OOR determined that the
Public Utility Commission (PUC) did not establish that the requested records under
those inspections fell under the noncriminal investigation exemption. Id. at 758.
We determined that the request asked for investigative materials, and statements
made by the utility’s employees, and thus created the same concerns regarding
disclosure as arose before this Court in Department of Health.            Id. at 761.
Accordingly, we concluded that the inspections qualified as noncriminal
investigations and thus were exempt from public disclosure. Id. at 762.
      As guided by our decision in Department of Health, we must determine
whether a regular inspection under the Boiler Law qualifies as a noncriminal
investigation that is exempt from public disclosure by determining whether “the
Department is making a systematic and searching inquiry, a detailed examination,
or an official probe” into operations and compliance with controlling laws and
regulations. Dep’t of Health, 4 A.3d at 811. That the statute or regulation refers to
an “inspection” is not determinative, if the inquiry otherwise meets the standards
for a noncriminal investigation.
      The OOR determined that the routine inspections at issue do not meet the
standards of a “noncriminal investigation” as set out in our precedent for
essentially four reasons: 1) because the Boiler Law itself differentiates between
“inspections” and “investigations”; 2) because the inspections can be performed by
non-Department personnel while the investigations cannot be; 3) the affidavits did
not provide sufficient details to show how the inspections met the standards in our
case law; and 4) the disclosure here does not raise the same public policy concerns



                                         15
as were present in Department of Health. We agree with the OOR that these
distinctions are significant, particularly given that “[t]he purpose of the [RTKL] is
to promote access to official government information in order to prohibit secrecy,
scrutinize public officials’ actions and make them accountable for their actions,”
Dages v. Carbon County, 44 A.3d 89, 91 (Pa. Cmwlth. 2012), and that exemptions
are to be read narrowly, Pennsylvania Department of Education v. Bagwell, 131
A.3d 638, 646 (Pa. Cmwlth. 2016).
      First, the Boiler Law distinguishes between a “field inspection” and an
“investigation.” Section 9 provides for “inspections,” while Sections 14 and 15
provide the procedures of “investigations.” Before delving into the differences
between the two functions, we note that the “polestar indication of the legislature’s
intent is the plain language of the statute.” SugarHouse HSP Gaming, L.P. v. Pa.
Gaming Control Bd., 162 A.3d 353, 375 (Pa. 2017). Based on the use of the
different terms throughout the Boiler Law, the legislature’s intent was that they
would be separate and distinct. Within Section 2 of the Boiler Law, 35 P.S. §
1331.2, a “Field inspection” is defined as “[a]n internal/external inspection as
defined by the National Board Inspection Code.” In contrast, an investigation is
not defined. Our Supreme Court has repeatedly held that “when the legislature
uses two different words, we must [] presume that it must have meant for the
words to have two separate meanings.” Commonwealth v. Elliott, 50 A.3d 1284,
1290 (Pa. 2012) (internal quotation marks omitted); see also PECO Energy Co. v.
Commonwealth, 919 A.2d 188, 191 (Pa. 2007) (“[T]he Legislature is presumed to
understand that different terms mean different things.”).
      The distinction is more evident when reviewing the Boiler Law. Inspections
must conform to an established schedule set out by the Boiler Law, unless



                                         16
specially altered by the Department. 35 P.S. § 1331.10. The inspections need not
be performed by the Department.        35 P.S. § 1331.9.     Rather, when a field
inspection is to be performed, an owner may choose from three types of
inspectors—an inspector employed by an insurance company, an inspector
employed by the owner, or a commissioned private inspector hired by the owner to
complete the inspection – none of whom are employed by the Department. Id.
While these inspectors must hold a Commission from the Department, 34 Pa. Code
§ 3a.111, there is nothing in the Law that provides they are under the employ or
control of the Department or are agents thereof. In contrast, an investigation is
always under the purview of the Department and performed by the Department
itself.    See 35 P.S. § 1331.14(a).   The Boiler Law provides the Department
possesses the sole authority to investigate any violations of the Boiler Law, and
concomitantly, the Department also has the right of entry to perform its
enforcement duties. 35 P.S. § 1331.14.
          The fact that the Department is charged with investigations, but may
delegate the duties of regular inspections to be performed by independent
inspectors is telling. The ability to delegate inspection authority differs from the
inspections in Department of Health, where the inspections were made by DOH or
one of its authorized agents under the HCFA. Dep’t of Health, 4 A.3d at 811
(citing Section 813(a) of the HCFA, 35 P.S. § 448.813(a) (“any authorized agent of
the department . . . .”)). Similarly, in both Michak, 56 A.3d at 926 and Gilbert, 40
A.3d at 759, the respective agencies performed the inspections.          Here, the
Department does not contend that the inspectors hired by the owner of the boiler
were authorized agents of the Department. Nor does the Department contend that




                                         17
the inspections at issue were performed by a Department inspector pursuant to
Section 9(d) of the Boiler Law.
      Furthermore, the attestations do not meet the burden of showing how these
inspections meet the standards for noncriminal investigations as set forth in our
precedent.   In the attestations, Mr. Kegg stated:     “The procedures that BOIS
generally employs when investigating a boiler-related incident or conducting
periodic safety inspections include carefully testing specified parameters of the
relevant equipment and interviewing maintenance people and others with
knowledge of the recent operation of the equipment.” (R.R. at 36a.) Mr. Kegg
further stated that the inspection reports at issue “provide information regarding the
equipment inspected; whether it passed or failed inspection; specific location in the
plant; manufacturer; and a description of any deficiencies found by the inspector.”
(Id.) Mr. Kegg only lists what the safety inspection reports entail and gives a very
general description of what the Department does in both investigations and
inspections. Importantly, Mr. Kegg also does not distinguish between what a
routine field inspection involves compared to an investigation of boiler-related
incidents, notwithstanding that the statute distinguishes between the two activities.
      In contrast, in Department of Health, we described the required inspections
as:

      visiting and inspecting the building, grounds, equipment and supplies
      of a nursing home; reviewing records of the nursing home and
      patients; and observing and interviewing patients and staff of the
      nursing home. Moreover, these activities are conducted in order to
      assess a nursing home’s compliance with statutory and regulatory
      provisions and determine if any corrective and/or disciplinary action
      needs to be taken. Similarly, the Surveys performed by the
      Department involve a team of Surveyors who: examine medical
      records of residents; interview residents, staff, and family members;
      and make observations of a facility, which include observing


                                         18
      medication preparation and administration and dining area and eating
      assistance practices. These activities are conducted in order to assess
      whether a nursing home is providing the quality of care mandated by
      law.    Thus, in conducting the Inspections and Surveys, the
      Department is making a systematic and searching inquiry, a detailed
      examination, and an official probe with regard to a nursing home’s
      operations and whether such operations are in compliance with the
      Social Security Act, [42 U.S.C. §§ 301-1397mm,] the HCFA, and the
      applicable state and federal regulations.

Dep’t of Health, 4 A.3d at 811 (internal citations omitted).
      This comprehensive description of the DOH investigation is much different
from the general description of the inspection procedures under the Boiler Law.
What the inspections entail, particularly when they are completed by inspectors
hired by the owner of the boiler, remains unclear. The attestations here do not
demonstrate that “the Department is making a systematic and searching inquiry, a
detailed examination, or an official probe,” Department of Health, 4 A.3d at 811,
into operations and compliance with the Boiler Law and controlling regulations.
Furthermore, an agency must show that the inspection is within the agency’s
official duties, Bagwell, 131 A.3d at 659-60, and “surpass[es] the [Department]’s
routine performance of its duties,” Sherry v. Radnor Township School District, 20
A.3d 515, 523 (Pa. Cmwlth. 2011).             Before us, the Department has not
demonstrated that it performed the regular inspections itself or acted in a way that
surpassed its routine duties of collecting the inspection reports. The Department
cannot rely on broadly stating what investigations and inspections entail because
merely stating that an investigation occurred is not sufficient. Bagwell, 131 A.3d
at 660. Particularly where the inquiry is not referred to as an “investigation,” but
as an “inspection,” such demonstration is important, as there is a presumption that
the legislature understood the two different terms had different meanings.



                                         19
Commonwealth v. Elliott, 50 A.3d at 1290; PECO Energy Co., 919 A.2d at 191.
Mr. Kegg made conclusory statements that the inspection reports “contain
information relating to whether or not deficiencies were uncovered by inspectors”
and that “they constitute records that would reveal the institution, progress or result
of an agency investigation.” (R.R. at 36a.) This language mirrors the language
present in Section 708(b)(17)(vi)(A) of the RTKL. 65 P.S. § 67.708(b)(17)(vi)(A)
(“[r]eveal the institution, progress or result of an agency investigation”). “[A]n
affidavit which merely tracks the language of the exception it presupposes is
insufficient to demonstrate that the responsive records are exempt from
disclosure.” Pa. State Police v. Muller, 124 A.3d 761, 765 (Pa. Cmwlth. 2015).
Without further explanation of what all of the inspections entail, whether
performed by a Department inspector or an independent inspector, we cannot
conclude that the Department has met its burden. Therefore, we agree with the
OOR that the Department has “not establish[ed] that the inspections at issue rise to
the level of a noncriminal investigation.” (Final Determination at 6.)
      Finally, the disclosure here does not raise the same public policy concerns as
were present in this Court’s decision in Department of Health. There is no dispute
that privacy of health care records and other concerns unique to health care are not
present in the case before us as they were in that case. While Mr. Kegg’s affidavit
mentions that inspections include “interviewing maintenance people and others
with knowledge of the recent operation of the equipment,” (R.R. at 36a), we agree
with the OOR that it is not clear how periodic interviews regarding boiler
operations “raise the same concerns about witness confidentiality or harm to
reputation” that were present in Department of Health. (Final Determination at 6-
7.)



                                          20
       Accordingly, we will not overturn the OOR’s determination that the
inspection reports do not fall under the noncriminal investigation exemption, and
thus are to be disclosed to Requester. The Department has not provided sufficient
evidence as to the inspections, and the special public policy concerns of
Department of Health are not present in the case before us.10

IV.    CONCLUSION
       The requested documents that the OOR ordered disclosed do not fall under
the noncriminal investigation exemption of Section 708(b)(17) of the RTKL, and
thus are public records subject to public disclosure. Accordingly, we affirm the
OOR’s Final Determination.


                                              _____________________________________
                                              RENÉE COHN JUBELIRER, Judge




       10
          The Department also argues that should we determine that the inspections do not fall
within the noncriminal investigation exemption, then those inspections would be outside the
scope of the Request. Requester responds by asserting that this argument is waived because it
was not presented to the OOR. We have previously stated that “an agency must raise all its
challenges before the fact-finder closes the record.” Levy v. Senate of Pa., 94 A.3d 436, 441 (Pa.
Cmwlth. 2014). Challenges or arguments that are not raised before the fact-finder are deemed to
be waived. Id. at 442. “In the ordinary course of RTKL proceedings, this will occur at the
appeals officer stage, and a reviewing court will defer to the findings of the appeals officer.” Id.
We defer here, because this is not the “extraordinary case” in which we become the fact-finder
by accepting further evidence and holding our own review or hearing. Id. The Department did
not raise this argument before the OOR and the appeals officer. Accordingly, the Department
cannot raise the new argument before this Court, and it is waived.




                                                21
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Department of Labor and    :
Industry,                               :
                       Petitioner       :
                                        :
                  v.                    :   No. 1583 C.D. 2019
                                        :
Chester Darlington,                     :
                        Respondent      :


                                  ORDER


      NOW, June 9, 2020, the Final Determination of the Office of Open Records,
dated October 16, 2019, is AFFIRMED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
