             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Department of State,                           :
                                               : No. 130 C.D. 2015
                              Petitioner       : Submitted: August 7, 2015
                                               :
                       v.                      :
                                               :
Alton Brown,                                   :
                                               :
                              Respondent       :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                          FILED: October 7, 2015


               The Department of State (Department) petitions for review of the
January 7, 2015, final determination of the Office of Open Records (OOR), which
granted Alton Brown’s request for records pursuant to the Right-to-Know Law
(RTKL).1 We affirm.


               On October 20, 2014, the Department’s open records officer (Records
Officer) received Brown’s request, dated October 14, 2014, which stated: “Please
provide access to ALL reportings filed by [a specific named physician (Physician)


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
licensed by the State Board of Medicine (Board)] pursuant to 40 P.S. §1303.903(1).”2
(Brown’s Req., 10/14/14, at 1.) In a response dated October 27, 2014, the Records
Officer denied Brown’s request on the ground that the letters were exempt from
disclosure pursuant to section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17),3
because they were records related to an agency’s noncriminal investigation.



       2
        Section 903(1) of the Medical Care Availability and Reduction of Error (MCARE) Act,
Act of March 20, 2002, P.L. 154, as amended. Section 903(1) of the MCARE Act provides:

               A physician shall report to the State Board of Medicine or the State Board of
       Osteopathic Medicine, as appropriate, within 60 days of the occurrence of . . .
       [n]otice of a complaint in a medical professional liability action that is filed against
       the physician. The physician shall provide the docket number of the case, where the
       case is filed and a description of the allegations in the complaint.

40 P.S. §1303.903(1).

       3
           Section 708(b)(17) of the RTKL exempts in relevant part:

                (17) A record of an agency relating to a noncriminal investigation, including:

                        (i) Complaints submitted to an agency.

                        (ii) Investigative materials, notes, correspondence and reports.
                                                       ***
                        (iv) A record that includes information made confidential by law.
                                                       ***
                        (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.

65 P.S. §67.708(b)(17).


                                                   2
             On November 18, 2014, Brown appealed the Records Officer’s denial to
the OOR, and the OOR invited Brown and the Department to supplement the record.
The Department submitted a position statement and the sworn affidavit of Bernadette
Paul, the deputy chief counsel of the Department’s prosecution division. In her
affidavit, Paul stated that “[t]he Department’s Bureau of Enforcement and
Investigation (BEI) conducts investigations on behalf of the Department’s Bureau of
Professional and Occupational Affairs (BPOA) and its 29 professional licensing
boards,” including the Board. (Paul Aff., 11/21/14, at 1.) Paul further stated:


                     [T]he Department receives reports from physicians
             under section 903 of the [MCARE] Act . . . . These
             MCARE reports are processed as the complaint that
             initiates an investigation. This information . . . is used
             exclusively by BEI and the prosecution division as part of
             an investigation to determine whether to file formal legal
             action against the physician before the respective [b]oard to
             take disciplinary action . . . .


(Id.) Paul also stated that Physician is a medical doctor licensed by the Board, and
that “the Board has taken no disciplinary action against [Physician].” (Id.)


             On November 18, 2014, the OOR issued an order directing Brown to
provide a copy of his request within seven days of the order. On December 1, 2014,
the OOR dismissed Brown’s appeal for failure to comply with its November 18,
2014, order.    On December 2, 2014, the OOR received Brown’s letter dated
November 24, 2014, stating that he included the request when he filed his appeal with
the OOR. On December 16, 2014, the OOR issued an order stating that it had



                                           3
discovered a copy of the request in Brown’s file and would treat Brown’s November
24, 2014, letter as a petition for reconsideration, which the OOR granted.


              On January 7, 2015, the OOR granted Brown’s appeal and directed the
Department to provide all responsive records within 30 days. The OOR determined
that the Department failed to prove that the requested records were exempt under the
noncriminal investigation exemption of the RTKL because the Department had not
established that it possessed the records or that an investigation had actually been
conducted. The Department now petitions this court for review.4

              Commonwealth agencies must “provide public records” to requestors.
Section 301(a) of the RTKL, 65 P.S. § 67.301(a). Section 102 of the RTKL defines a
“record” as “[i]nformation . . . 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.” 65 P.S. §67.102. Although records
in the possession of a Commonwealth agency are presumed to be public records,
“[t]he presumption shall not apply if: (1) the record is exempt under section 708 [of
the RTKL]; (2) the record is protected by a privilege; or (3) the record is exempt from
disclosure under any other Federal or State law or regulation or judicial order or
decree.” Section 305(a) of the RTKL, 65 P.S. §67.305(a). An agency bears the
burden of proving, by a preponderance of the evidence, that a record is exempt from


       4
         Our standard of review under the RTKL is de novo, and we may adopt the agency’s
findings or substitute them with our own. Bowling v. Office of Open Records, 75 A.3d 453, 474
(Pa. 2013). Our scope of review under the RTKL is plenary, and we may expand the record through
additional hearings or remand. Id. at 475-76.



                                              4
disclosure under one of the enumerated exemptions. Section 708(a)(1) of the RTKL,
65 P.S. §67.708(a)(1).


             First, the Department argues that it was not required to prove that
responsive records existed or that an investigation actually occurred because all
records responsive to Brown’s request would be exempt under the plain language of
section 708(b)(17) of the RTKL. We disagree.


             “In analyzing whether a particular [exemption] to public access under
section 708(b) [of the RTKL] applies, a first step is comparing the language of the
RTKL request with the language of the [exemption] asserted.”                Heavens v.
Pennsylvania Department of Environmental Protection, 65 A.3d 1069, 1075 (Pa.
Cmwlth. 2013). Where the plain language of an asserted exemption exempts the
requested records, the agency will have met its burden of proving that the exemption
applies. See Coulter v. Department of Public Welfare, 65 A.3d 1085, 1090 (Pa.
Cmwlth. 2013) (holding that the agency met its burden where the plain language of
section 708(b)(17) of the RTKL exempts the requested “correspondence and . . .
reports that were produced as a result of the investigations”).


             Here, Brown requested “ALL reportings filed by [Physician] pursuant to
40 P.S. §1303.903(1).” (Brown’s Req., 10/14/14, at 1.) Brown’s request does not, on
its face, describe records related to an investigation of any kind and, thus, it does not
track the language of section 708(b)(17) of the RTKL exempting “records relating to
a noncriminal investigation.” Therefore, the Department failed to prove that all




                                           5
records responsive to Brown’s request would be exempted by the plain language of
section 708(b)(17) of the RTKL.


              Next, the Department argues that it was not required to prove that
responsive records existed or that the Department actually conducted an investigation
because doing so would “[r]eveal the institution, progress or result of an agency
investigation,”      section      708(b)(17)(vi)(A)        of     the     RTKL,        65      P.S.
§67.708(b)(17)(vi)(A), thus negating the purpose of section 708(b)(17)(vi)(A) of the
RTKL. We disagree.


              Affidavits that are relevant and credible may provide sufficient evidence
to prove an asserted exemption. Heavens, 65 A.3d at 1073. “‘The affidavits must be
detailed, nonconclusory, and submitted in good faith.’” Office of the Governor v.
Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc) (citation omitted).


              Here, Brown requested all reports filed by Physician under section
903(1) of the MCARE Act. Relying solely on Paul’s affidavit, the Department
argues that a report filed by a physician under section 903(1) of the MCARE Act is
processed as a complaint that initiates an investigation and is used exclusively as part
of that investigation. Thus, the Department argues that the filing of such a report
necessarily institutes a noncriminal agency investigation. However, neither Paul’s
affidavit nor the Department’s brief cites a Board regulation5 or other authority

       5
          Section 904(a) of the MCARE Act provides: “With regard to notices of complaints
received pursuant to section 903(1) or a complaint filed with the licensure board, the [Board] shall
develop criteria and standards for review based on the frequency and severity of complaints filed
against a physician.” 40 P.S. §1303.904(a) (emphasis added).


                                                 6
establishing that the filing of a report under section 903(1) of the MCARE Act
automatically initiates a noncriminal agency investigation. Furthermore, Paul’s only
factual averments are that Physician is a licensed medical doctor and that the Board
has not taken any disciplinary action against him. Paul’s affidavit lacks sufficient
detail and, thus, does not constitute sufficient evidence in support of the Department’s
burden. Therefore, we conclude that the Department failed to meet its burden of
proving that the records that Brown requested are exempt under section
708(b)(17)(vi)(A) of the RTKL.6


              Accordingly, we affirm.




                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge




       6
         Because we conclude that the Department failed to offer sufficient evidence that the
exemption at section 708(b)(17)(vi)(A) of the RTKL applies here, we need not determine whether
this exemption is, as a general rule, inapplicable to reports filed under section 903(1) of the
MCARE Act.


                                              7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Department of State,                    :
                                        : No. 130 C.D. 2015
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Alton Brown,                            :
                                        :
                         Respondent     :



                                      ORDER


            AND NOW, this 7th day of October, 2015, we hereby affirm the January
7, 2015, final determination of the Office of Open Records.



                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge
