            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ruben M. Collazo,                  :
                 Petitioner        :
                                   : No. 581 C.D. 2019
     v.                            : SUBMITTED: October 4, 2019
                                   :
Pennsylvania Gaming Control Board, :
                 Respondent        :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                             FILED: December 16, 2019

      Petitioner Ruben M. Collazo (Collazo) appeals pro se to our Court from a
Final Determination issued by the Pennsylvania Office of Open Records (OOR) on
April 15, 2019. Through this Final Determination, the OOR denied Collazo’s appeal
of the Pennsylvania Gaming Control Board’s (Board) February 4, 2019 disposition
of Collazo’s Right to Know Law1 (RTKL) records request, which related to an
investigation conducted by the Board regarding Mount Airy Casino Resort (Casino)
in Mount Pocono, Pennsylvania. Therein, the Board partially denied Collazo’s
request and also informed him that the remaining, sought-after records do not exist.
Upon review, we affirm the OOR.
                              Facts and Procedural History
      On December 3, 2018, David S. Tepper, Esquire, Assistant Enforcement
Counsel with the Board’s Office of Enforcement Counsel, mailed a letter to Collazo.

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
Board’s Supplemental Reproduced Record (S.R.R.) at 46a.2 In this letter, Tepper
explained that the Board’s Bureau of Investigations and Enforcement had conducted
an investigation of the Casino in response to complaints Collazo had filed with the
Board. Id.3 The Office of Enforcement Counsel reviewed the results of this
investigation and concluded that neither the Casino itself nor its employees violated
the Pennsylvania Race Horse Development and Gaming Act4 (Gaming Act) or the
Board’s regulations. Id. As a result, the Office of Enforcement Counsel did not take
action against the Casino and closed the investigation that had been sparked by
Collazo’s complaints. Id.
       On December 31, 2018, the Board received a records request from Collazo,
made pursuant to the RTKL, seeking the following:
                1. Transcript[s] of interview[s], inter[r]ogatories, videos
                conducted with [the Casino] employees [and] patrons
                named in “patron complaint” filed by . . . Collazo entitled
                “The Village People.”
                2. Specifically, employee slot attendant Anthony J.
                Scalzo[;] patron identified as “Tina the mayor of the
                village people;” patron named Kathleen Stay; patron
                identified as “Fluffy” by slot attendant Anthony J. Scalzo;
                hostess assigned to take slot machines “Out of Service” by
                [the Casino] at the request of patron further identified as
                Tina “the Mayor of the Village People.”
                3. The number and names of individuals evicted from [the
                Casino] as a result of the above mentioned complaint.


       2
          We granted Collazo in forma pauperis status on May 23, 2019, which had the additional
effect of exempting him from the standard requirement that the petitioner or appellant file a
reproduced record. See Pa. R.A.P. 2151(b). In his stead, the Board has elected to submit what it
calls the “Supplemental Reproduced Record.” S.R.R. at 1a n.1.

       3
           These complaints were not part of the record.

       4
           4 Pa. C.S. §§ 1101-1904.


                                                 2
               4. The number and names of patrons who have been
               identified by employees of [the Casino] as having a
               gambling or drinking problem pursuant to Appendix 33
               “Details of [the Casino’s] . . . Compulsive and Problem
               Gambling Plan.”
               5. The number and names of individuals or convicted
               felons, who have been evicted or excluded by the [Board]
               pursuant to [58 Pa. Code] § 511a.3(a)(4)(ix):
                      “Persons who have performed an act or have a
                      notorious or unsavory reputation that would
                      adversely affect public confidence and trust in
                      gaming, including, being identified with criminal
                      activities in published reports of various Federal
                      and State legislative and executive bodies that have
                      inquired into criminal or organized criminal
                      activities.”
S.R.R. at 1a. The Board responded to Collazo on February 4, 2019. It informed him
that parts 1 and 2 of his request were denied pursuant to the RTKL’s exemption for
records pertaining to internal, predecisional deliberations,5 as well as the exemption


       5
          This exemption is found in Section 708(b)(10)(i) of the RTKL and, with some caveats
that are not relevant here, exempts from disclosure:
               A record that reflects:
                      (A) The internal, predecisional deliberations of an agency,
                      its members, employees or officials or predecisional
                      deliberations between agency members, employees or
                      officials and members, employees or officials of another
                      agency, including predecisional deliberations relating to a
                      budget recommendation, legislative proposal, legislative
                      amendment, contemplated or proposed policy or course of
                      action or any research, memos or other documents used in
                      the predecisional deliberations.
                      (B) The strategy to be used to develop or achieve the
                      successful adoption of a budget, legislative proposal or
                      regulation.
65 P.S. § 67.708(b)(10)(i).



                                               3
covering noncriminal investigations.6 Id. at 2a-3a. With regard to parts 3 through 5
of Collazo’s request, the Board stated that he was improperly seeking to use the
RTKL to compel the Board “to answer questions, verify statements, or research
issues[,]” and that, in any event, the desired records did not exist. Id. at 3a-5a.
Collazo appealed the Board’s decision to the OOR on February 12, 2019.



       6
           This exemption is found in Section 708(b)(17) of the RTKL and exempts from disclosure:
                A record of an agency relating to a noncriminal 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 [43 P.S. §§ 1421-
                1428].
                (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:
                        (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.
                        (B) Deprive a person of the right to an impartial
                        adjudication.
                        (C) Constitute an unwarranted invasion of privacy.
                        (D) Hinder an agency’s ability to secure an administrative or
                        civil sanction.
                        (E) Endanger the life or physical safety of an individual.
65 P.S. § 67.708(b)(17).


                                                   4
      As part of its response to Collazo’s administrative appeal, the Board submitted
unsworn affidavits from Elizabeth Lanza, Director of the Board’s Office of
Compulsive and Problem Gambling, and Linda S. Lloyd, the Board’s Director of
Hearings and Appeals. Ms. Lanza stated that the Office of Compulsive and Problem
Gambling is required to maintain a list of individuals who have been involuntarily
barred from gambling establishments in Pennsylvania. Id. at 24a. This list can be
found on the Board’s website. Id. Ms. Lanza also stated that her Office “do[es] not
keep statistics, a list, or a database from which we could determine what criteria the
Board has used to place individuals on [the] Involuntary Exclusion List.” Id. In
addition, Ms. Lanza averred that, by law, such facilities are only required to notify
the Board about a patron exhibiting drinking or gambling problems where the patron
is forcibly removed due to their violation of a voluntary, self-imposed ban. Id. at
24a-25a. In other words, a casino only has to notify the Board when they forcibly
remove a patron for problem behavior and that person is on the voluntary, self-
imposed ban list. However, these gambling establishments do not otherwise provide
the Board with information about patrons identified as having trouble keeping their
drinking or gambling in check or who have been removed from a facility’s premises
as a result of such problems. Id.
      Similarly, Ms. Lloyd declared that the Board’s Office of Hearings and
Appeals also “does not keep statistics, a list, or a database from which we could
determine why the Board has placed an individual on the [Involuntary] Exclusion
List.” Id. at 35a. Ms. Lloyd believed that the only way to obtain such information
would be to review every single file for each of the individuals on the Involuntary




                                          5
Exclusion List and then manually create the desired records. Id.7 Echoing Ms. Lanza,
Ms. Lloyd stated that the Board publishes the Involuntary Exclusion List on its
website, which “can be searched by name or photo index and contains a brief
description of why [each] individual was placed on the . . . List.” Id. at 35a-36a.
       On April 15, 2019, the OOR affirmed the Board’s denial of Collazo’s RTKL
request. The OOR found that the records sought by Collazo through parts 1 and 2 of
the request fell within the RTKL’s noncriminal investigation exemption. The OOR
also found Ms. Lanza’s and Ms. Lloyd’s affidavits credible and determined that the
records sought by Collazo in parts 3 through 5 do not exist. Id. at 159a-61a. For these
reasons, the OOR denied Collazo’s appeal and instructed the Board that it need not
take any additional action. Id. at 161a. This appeal followed.
                                            Discussion
       Collazo’s claims on appeal are difficult to discern.8 He asserts in his Petition
for Review that
               [t]he OOR[’s] [F]inal [D]etermination dated April 15,
               2019 was rendered without benefit of relevant or probative
               evidence that an actual investigation was ever conducted
               by the [Bureau of Investigations and Enforcement] or the
               Pennsylvania State Police Bureau of Gaming Enforcement
               concerning [Collazo’s] long[-]ignored 2015 original
               complaint.
Petition for Review, ¶4. Collazo then asks our Court “to establish that a diligent and
thorough investigation was conducted by both [the Bureau of Investigations and
Enforcement] and the Pennsylvania State Police Bureau of Gaming Enforcement as

       7
          By law, “an agency is not required to create a record if the requested record does not exist.
Nor is it required to compile the record in a new or novel format. [Section 705 of the RTKL,] 65
P.S. § 67.705.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011).

       8
       We exercise de novo, plenary review when considering RTKL appeals stemming from
OOR determinations. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).


                                                  6
the original 2015 complaint involved both criminal and non-criminal allegations.”
Id., ¶5. In his appellate brief, Collazo offers a short and confusing argument as to
why we should grant his appeal. He alleges, without offering supporting evidence,
that the Board may not have properly investigated the complaint he submitted to it
in 2015 and uses “outsourced firms to conduct investigations” in order to dodge the
RTKL’s disclosure requirements. Collazo’s Br. at 2-3. He then argues that our Court,
as well as the Pennsylvania Attorney General, has the power “to make demand [sic]
upon the [Board] and make available to the [C]ourt all investigation documents
relating to [Collazo’s 2015] complaint.” Id. at 3. Collazo closes by declaring, in
essence, that the Board has shirked its duty to thoroughly investigate his complaints
and that a ruling from our Court in his favor regarding his RTKL request is
necessary, so that “the [allegedly] secret and unconstitutional relationship” between
the Board and the Casino can be exposed to the general public. Id. at 3-4.
      This is problematic for two reasons. First, Collazo seeks to transform his
initial RTKL request from one pertaining to the specific, aforementioned records to
a far broader, judicially directed inquiry into the Board’s exercise of its investigatory
duties and its relationship with the Casino. This is impermissible. See McKelvey v.
Office of Attorney Gen., 172 A.3d 122, 125 (Pa. Cmwlth. 2017) (“Once a RTKL
request is submitted, the requester may not expand or modify the request on
appeal.”). Second, in attempting this transformation, Collazo has simultaneously
neglected to pursue his original argument that he should be given the precise records
enumerated in his initial, five-part request. Therefore, he has failed to properly
preserve or raise any issues for our consideration. Pa. R.A.P. 1513, 1551, 2116,
2117; see Glunk v. Dep’t of State, 102 A.3d 605, 611 (Pa. Cmwlth. 2014).




                                           7
      Furthermore, even on the merits of his initial RTKL request, Collazo would
not be entitled to a decision in his favor. “[T]he objective of the RTKL ‘is to
empower citizens by affording them access to information concerning the activities
of their government.’” Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013) (quoting
SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012)).
             Under the RTKL, records in the possession of an agency
             are presumed to be public unless they are: (1) exempted
             by Section 708 of the RTKL; (2) protected by privilege; or
             (3) exempted “under any other Federal or state law or
             regulation or judicial order or decree.” Section 305 of the
             RTKL, 65 P.S. § 67.305. The Commonwealth agency
             bears the burden of proving a record is exempt from
             disclosure.
Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 371-72 (Pa. Cmwlth. 2013); see 65 P.S.
§ 67.708(a) (an agency must prove by a preponderance of the evidence that a
disclosure exemption applies).
      With regard to parts 1 and 2 of Collazo’s request, the Board again asserts that
the sought-after records are exempted from disclosure by the RTKL’s noncriminal
investigation exemption. Board’s Br. at 13-15. We agree. This exemption applies to
records generated through “a systematic or searching inquiry, a detailed
examination, or an official probe” regarding alleged (or actual) noncriminal, legal or
regulatory violations. Dep’t of Health v. Office of Open Records, 4 A.3d 803, 811
(Pa. Cmwlth. 2010). Here, it is undisputed that Collazo submitted complaints to the
Board. Tepper subsequently informed Collazo that Board apparatuses had both
investigated his allegations against the Casino and concluded that no legal or
regulatory violations had occurred. S.R.R. at 46a. Collazo then requested records
from the Board, such as interview transcripts and videos, the creation of which had
been prompted by his complaints. Id. at 1a. Given that, by law, the Board’s Office
of Enforcement Counsel and Bureau of Investigations and Enforcement may only


                                          8
conduct noncriminal investigations, 4 Pa. C.S. § 1517(a.1)-(a.2), the records sought
by Collazo through parts 1 and 2 of his request fall squarely within the RTKL’s
noncriminal investigation exemption.9
       Turning to parts 3 through 5 of Collazo’s records request, the Board still
asserts that no responsive documents exist. Board’s Br. at 15-16.
               The burden of proving a record does not exist . . . is placed
               on the agency responding to the right-to-know request. See
               65 P.S. § 67.708. . . . [The] agency may satisfy its burden
               of proof that it does not possess a requested record with
               either an unsworn attestation by the person who searched
               for the record or a sworn affidavit of nonexistence of the
               record.
Hodges, 29 A.3d at 1192.
               The affidavits must be detailed, nonconclusory, and
               submitted in good faith.[] Absent evidence of bad faith,
               the veracity of an agency’s submissions explaining
               reasons for nondisclosure should not be questioned. . . . In
               other words, a generic determination or conclusory
               statements are not sufficient to justify the exemption of
               public records.
Office of Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (internal
citation omitted). Both Ms. Lanza’s and Ms. Lloyd’s unsworn affidavits provide


       9
          As noted above, Collazo claimed in his Petition for Review that his complaints to the
Board about the Casino contained allegations of both criminal and noncriminal violations. Petition
for Review, ¶5. This is immaterial, though. While the Bureau of Investigations and Enforcement
may refer potentially criminal matters to the Pennsylvania State Police (PSP) and cooperate with
criminal investigations, only the PSP, county-level district attorneys, and the Pennsylvania
Attorney General have the statutory authority to conduct investigations regarding alleged or actual
criminal violations of our Commonwealth’s gaming laws or regulations. 4 Pa. C.S. § 1517(a.1.)(7)-
(8), (c)(3)-(4), (6), (9), (c.1), (d). Indeed, Tepper indicated as much in his December 3, 2018 letter,
when he informed Collazo that the Office of Enforcement Counsel and Bureau of Investigations
and Enforcement “solely have jurisdiction over non-criminal violations of the [Gaming] Act and
the Board’s regulations[,]” and directed Collazo to reach out to the PSP’s Bureau of Gaming
Enforcement in the event he believed either the Casino or its employees had committed crimes.
S.R.R. at 46a.


                                                  9
detailed, particularized explanations for why the Board does not have the records
Collazo seeks. Furthermore, there is no evidence that the Board proffered these
affidavits in bad faith. Therefore, we find both affidavits credible and that they
satisfied the Board’s burden of proving that such records do not exist.
                                    Conclusion
      Given that Collazo has neither properly raised nor preserved any issues for
our consideration, and would not have been entitled to relief on the merits of his
original RTKL request, we affirm the OOR’s April 15, 2019 Final Determination.




                                       __________________________________
                                       ELLEN CEISLER, Judge




                                         10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ruben M. Collazo,                  :
                 Petitioner        :
                                   : No. 581 C.D. 2019
     v.                            :
                                   :
Pennsylvania Gaming Control Board, :
                 Respondent        :


                                ORDER


     AND NOW, this 16th day of December, 2019, the Pennsylvania Office of
Open Records’ April 15, 2019 Final Determination is AFFIRMED.


                                  __________________________________
                                  ELLEN CEISLER, Judge
