             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State Police,                    :
                   Petitioner                 :
                                              :
                 v.                           :   No. 1646 C.D. 2014
                                              :   Submitted: March 20, 2015
Casey Grove,                                  :
                        Respondent            :


BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE MARY HANNAH LEAVITT, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                                  FILED: September 28, 2015

                 The Pennsylvania State Police petition for review of a final
adjudication of the Office of Open Records (OOR) ordering the State Police to
provide Casey Grove with a copy of a video recording of his interaction with a
State trooper during a traffic stop. The State Police argues that OOR erred in
concluding that the recording is not exempt from disclosure under both the Right-
to-Know Law, 65 P.S. §§67.101-67.3104,1 and the Criminal History Record
Information Act (CHRIA), 18 Pa. C.S. §§9101-9183. For the reasons that follow,
we affirm OOR’s decision.
                 On April 27, 2014, Grove submitted the following records request to
the State Police:


1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
            I would like to have a copy of all audio & video pertaining to
            the traffic stop made by PA state police officer #10474
            (Shrivers?) [Shivery] with Rockview barracks, against Casey J
            Grove of 103 Hidden Springs Ln, Spring Mills PA. The traffic
            stop was made at 8:53am on 4/23/14 on Commercial Blvd,
            State College PA 16801 (College Township). I specifically
            request any and all audio/video from 8:30am until conclusion of
            the traffic stop, as well as any radio audio and transcript
            between the officer, fellow officers, headquarters, and
            supervisors from 8:30am until the conclusion of the traffic stop.
            Traffic stop was for an obstruction of license plate.

Reproduced Record at 1a (R.R.__). The State Police’s Deputy Agency Open
Records Officer, Lissa Ferguson, denied Grove’s request by letter dated June 4,
2014. Ferguson explained that the requested “Mobile Video Recording (MVR)”
was exempt from disclosure as an investigative record under Section 708(b)(16) of
the Right-to-Know Law, 65 P.S. §67.708(b)(16), and Section 9106(c)(4) of
CHRIA, 18 Pa. C.S. §9106(c)(4). R.R. 2a. Because Ferguson concluded that all
responsive video recordings are exempt, she did not describe the particular
recording requested to show how, in fact, it was investigative. Ferguson further
explained that the State Police did not possess audio recordings or transcripts
responsive to Grove’s request.
            Grove appealed to OOR, arguing that the State Police’s invocation of
the investigative exemption was overbroad. In this case, it did not show that the
recording related to a criminal investigation. According to Grove, he did not
receive a citation, and the warning he received from Trooper Shivery for
“obstruction of license plate” was later determined to be unfounded by Centre
County Sheriff Dennis Nau. R.R. 12a.
            In its response to Grove’s appeal, the State Police argued that OOR’s
prior decision in Keller v. Pennsylvania State Police, Dkt. AP 2014-0241 (March

                                        2
13, 2014), was controlling.    In that case, OOR held that mobile video/audio
recordings are barred from disclosure under Section 708(b)(16) of the Right-to-
Know Law. The State Police also cited OOR’s decision in Otto v. Pennsylvania
State Police, Dkt. AP 2013-2323 (January 3, 2014), which was cited in Keller.
Finally, the State Police provided an affidavit of their Agency Open Records
Officer, William A. Rozier, J.D., confirming that there were no audio recordings
responsive to Grove’s request and stating as follows with regard to the mobile
video recording:

            11. A review of the [Mobile Video Recording] details a
            traffic stop conducted by Trooper Shivery regarding an in-
            progress vehicle code violation. Although the “on person”
            microphone was active, it did not record the encounter as
            indicated by the MVR and [Mobile Video Recording]
            download request form.

            12. In accordance to PSP Field Regulation 6-12, Troopers
            should endeavor to use the [Mobile Video Recordings] for
            incidents involving traffic and enforcement stops and in-
            progress vehicle and crimes code violations.

Rozier Aff., June 25, 2014, at ¶¶11-12; R.R. 18a.
            On review, OOR affirmed in part and reversed in part. Specifically,
OOR affirmed that the State Police was under no obligation to produce audio
recordings and transcripts that do not exist. However, OOR reversed the State
Police’s decision to withhold the mobile video recording for the stated reason that
it was “investigative” in nature. OOR expressly reversed Otto and Keller, holding
that those decisions were overbroad because they created a blanket exemption for
mobile video recordings without first considering whether the recording at issue is,
in fact, investigatory in nature. OOR further explained:


                                         3
             [A Mobile Video Recording’s] purpose is to document traffic
             stops conducted by law enforcement. As such, [a Mobile Video
             Recording] is a routine and automatic function of police work
             and does not inherently relate to any specific investigation.
             Further, [a Mobile Video Recording] does not reveal whether
             an investigation has been instituted or the progress of an
             ongoing investigation. Therefore, the record itself – a video –
             is not “investigatory” in nature, even though it may be or has
             been obtained and used as evidence during an investigation.
             The video merely chronicles factual events with no indication
             of whether an investigation has commenced, is ongoing or will
             occur. The start of an investigation does not automatically
             convert a public record into an exempt one.

OOR Adjudication at 5 (emphasis added). The State Police petitioned this Court to
review OOR’s decision.
             On appeal,2 the State Police contend that the mobile video recording
of Grove’s traffic stop is exempt from disclosure under Section 708(b)(16) of the
Right-to-Know Law and CHRIA because it is investigative in nature.3 The State
Police also filed an application to supplement the record with an additional
affidavit by Rozier dated December 31, 2014, that provides more details about the
mobile video recording.
             We consider, first, the State Police’s application to supplement the
record with Rozier’s December 31, 2014, affidavit. Under our de novo standard of
review, this Court has “the authority to expand [the] record” in a Right-to-Know
Law case when doing so will help us resolve the matter. Bowling v. Office of Open
Records, 75 A.3d 453, 476 (Pa. 2013). “Consideration of additional evidence is


2
  When considering an appeal from the OOR under the Right-to-Know Law, this Court exercises
plenary, de novo review. Bowling v. Office of Open Records, 75 A.3d 453, 476 (Pa. 2013).
3
  Grove was precluded from participating in this appeal.


                                            4
particularly appropriate where the requested items involve law enforcement or
public security issues and the OOR record contains no information on their nature
and content.” Pennsylvania State Police v. Grove, ___ A.3d ___ (Pa. Cmwlth., No.
1146 C.D. 2014, filed July 7, 2015) at 4.
               The State Police argues that, in its appeal to OOR, it relied upon
OOR’s prior rulings in Otto and Keller that mobile video recordings were
inherently investigative in nature and therefore exempt. Thus, the State Police’s
record before the OOR, including Rozier’s original affidavit of June 25, 2014, was
devoid of information on the purpose of a mobile video recording, details about the
recording of Grove’s traffic stop, and the State Police’s reasoning for claiming the
recording is exempt. Rozier’s supplemental affidavit aims to fill in those gaps.
               Given this unusual circumstance, and the limited amendment to the
record, we will grant the State Police’s application to supplement the record and
not remand the matter to OOR. Rozier’s supplemental affidavit provides facts
necessary to determine whether the mobile video recording at issue is investigative
in nature. See also Grove, slip op. at 3-5 (granting State Police’s application to
supplement record with affidavit of William Rozier in factually similar case).
               In his affidavit, Rozier states that the mobile video recording system
in a police vehicle is activated when the trooper activates the emergency lights or
siren. Pursuant to the State Police’s internal field regulations, troopers “shall
endeavor” to use this technology to record, inter alia, “[t]raffic and criminal
enforcement stops,” “[i]n-progress Vehicle and Crimes Code violations,” and
“[p]olice pursuits.” Rozier Aff., December 31, 2014, at ¶14.4 Rozier confirms that

4
  Pursuant to the field regulation, state troopers shall also endeavor to record field interviews,
interrogations and intoxication testing; patrol vehicle travel and movements when emergency
(Footnote continued on the next page . . .)
                                                5
he “personally viewed the MVR that is the subject of this appeal and it clearly
depicts a traffic stop conducted by Trooper Shivery regarding an in-progress
vehicle code violation, resulting in a written warning being issued [to Grove].” Id.
at ¶16. Rozier describes the events recorded in the video as follows:

               The [Mobile Video Recording] begins with a maroon Nissan
               Frontier pickup truck being visible through Trooper Shivery’s
               windshield. The pickup truck then makes a right hand turn
               followed by a left hand turn before stopping. Trooper Shivery’s
               cruiser then pulls up behind the vehicle. Trooper Shivery can
               then be seen approaching the driver side of the pickup truck and
               then engaging in conversation with the driver. The driver then
               hands Trooper Shivery paperwork and Trooper Shivery returns
               to his vehicle. After some time passes, Trooper Shivery can
               then be seen again approaching the driver side of the pickup
               truck and returning paperwork to the driver, engaging in
               conversation with the driver, and then handing a written
               warning to the driver. The [Mobile Video Recording] ends
               following the end of the traffic stop.

Id. at ¶11. Rozier attests that the purpose of a written warning “is to provide
written notification of a violation of the Vehicle Code to an individual when a
Traffic Citation is not issued due to the minor nature of the violation, or due to
insufficient evidence for a prosecution.”             Id. at ¶16.      With the record now
complete, we consider the merits of the State Police’s petition for review.
               The Right-to-Know Law requires Commonwealth agencies to provide
public records upon request. Section 3.1 of the Right-to-Know Law, 65 P.S.


(continued . . .)
lights and/or siren are activated; fatal crash or major crime scenes, as necessary, to document the
scene; traffic safety and sobriety checkpoints; prisoner transports; searches of vehicles and/or
persons; and any other incident the trooper deems appropriate while acting in the performance of
his or her official duties. Rozier Aff., December 31, 2014, at ¶14.


                                                6
§67.301. A record is presumed to be a “public record” unless it is exempt from
disclosure under Section 708 of the Right-to-Know Law, 65 P.S. §67.708; exempt
from disclosure under federal or state law, regulation or judicial decree; or
protected by privilege. Section 102 of the Right-to-Know Law, 65 P.S. §67.102
(defining “public record”). A government agency claiming that a requested record
is exempt from public access must prove by a preponderance of evidence that the
claimed exemption applies. Section 708(a)(1) of the Right-to-Know Law, 65 P.S.
§67.708(a)(1). A preponderance of the evidence standard, the lowest evidentiary
standard, is tantamount to “a more likely than not” inquiry. Carey v. Department
of Corrections, 61 A.3d 367, 374 (Pa. Cmwlth. 2013).
             Exemptions from disclosure under the Right-to-Know Law are
narrowly construed. Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa.
Cmwlth. 2014). The so-called “criminal investigation” exemption states that a
requester shall not have access to “[a] record of an agency relating to or resulting
in a criminal investigation,” including “[i]nvestigative … videos.”            65 P.S.
§67.708(b)(16)(ii).5     The Right-to-Know Law does not define “criminal
investigation.”

5
  In full, Section 708(b)(16) of the Right-to-Know Law exempts the following from public
access:
        (16) A record of an agency relating to or resulting in a criminal investigation,
        including:
               (i) Complaints of potential criminal conduct other than a private
               criminal complaint.
               (ii) Investigative materials, notes, correspondence, videos and
               reports.
               (iii) A record that includes the identity of a confidential source or
               the identity of a suspect who has not been charged with an offense
               to whom confidentiality has been promised.
(Footnote continued on the next page . . .)
                                           7
               Section     9106(c)(4)      of   CHRIA        prohibits     the   disclosure    of
“investigative information” to departments, agencies, or individuals that are not
classified as criminal justice agencies. 18 Pa. C.S. §9106(c)(4).6 CHRIA defines


(continued . . .)
               (iv) A record that includes information made confidential by law or
               court order.
               (v) Victim information, including any information that would
               jeopardize the safety of the victim.
               (vi) A record that, if disclosed, would do any of the following:
                       (A) Reveal the institution, progress or result of a
                       criminal investigation, except the filing of criminal
                       charges.
                       (B) Deprive a person of the right to a fair trial or an
                       impartial adjudication.
                       (C) Impair the ability to locate a defendant or
                       codefendant.
                       (D) Hinder an agency’s ability to secure an arrest,
                       prosecution or conviction.
                       (E) Endanger the life or physical safety of an
                       individual.
        This paragraph shall not apply to information contained in a police blotter as
        defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by
        the Pennsylvania State Police, local, campus, transit or port authority police
        department or other law enforcement agency or in a traffic report except as
        provided under 75 Pa. C.S. §3754(b)(relating to accident prevention
        investigations).
65 P.S. §67.708(b)(16) (emphasis added).
6
  Section 9106(c)(4) of CHRIA states:
       Investigative and treatment information shall not be disseminated to any
       department, agency or individual unless the department, agency or individual
       requesting the information is a criminal justice agency which requests the
       information in connection with its duties, and the request is based upon a name,
       fingerprint, modus operandi, genetic typing, voice print or other identifying
       characteristic.
18 Pa. C.S. §9106(c)(4).


                                                 8
“investigative information” as “[i]nformation assembled as a result of the
performance of any inquiry, formal or informal, into a criminal incident or an
allegation of criminal wrongdoing and may include modus operandi information.”
18 Pa. C.S. §9102.
                 Here, the State Police argues that OOR erred in holding that the
mobile video recording was not “investigatory” in nature and, thus, not exempt
from disclosure. The State Police contends that under Section 708(b)(16) of the
Right-to-Know Law, it need show only that the record “relates to or results in” a
criminal investigation. OOR misinterpreted Section 708(b)(16)’s broad general
exemption by importing language from the more specific example in subsection
(b)(16)(vi)(A)7 and requiring the State Police also to show that disclosure will
reveal whether an investigation has been instituted or the progress of an ongoing
investigation. The State Police further argues that it satisfied its burden of proving
an exemption under Section 708(b)(16) by a preponderance of evidence.
Specifically, the State Police asserts that the affidavit of Rozier establishes that the
mobile video recording related to a criminal investigation because it depicted a
traffic stop for an in-progress vehicle code violation. For the same reason, the
State Police argues that the recording is exempt from disclosure under “state law,”
i.e., CHRIA, and therefore not a “public” record.
                 This Court recently addressed a request for access to mobile video
recordings in Pennsylvania State Police v. Grove, ___ A.3d ___ (Pa. Cmwlth., No.
1146 C.D. 2014, filed July 7, 2015).8 In Grove, State Troopers Vanorden and
Thomas each responded to the scene of a two-vehicle accident. Both of their

7
    See n.5, supra, for the text of Section 708(b)(16)(vi)(A).
8
    Although the requesters in these cases share the same surname, the cases are unrelated.


                                                  9
vehicles generated mobile vehicle recordings. Trooper Vanorden’s recording did
not contain an audio component, but it showed the trooper speaking with the two
drivers and directing one of them to move his vehicle. Trooper Thomas’ recording
contained both video and audio of his interviews of the two drivers and bystanders
concerning the accident. The requester sought access to both recordings. The
State Police denied the request on the basis that the recordings were exempt from
disclosure under Section 708(b)(16) and CHRIA because they related to a motor
vehicle accident which resulted in traffic citations, which are summary criminal
offenses. Further, one of the troopers investigated the accident before issuing the
citations.   The requester appealed to OOR, which reversed the State Police’s
decision and, in doing so, also reversed its prior decisions in Keller and Otto
holding that mobile vehicle recordings are inherently investigative. The State
Police petitioned for this Court’s review.
               This Court affirmed OOR’s determination and ordered the State
Police to provide the requester with unredacted copies of the Vanorden recording
and the video component of the Thomas recording.9 We rejected the State Police’s
argument that the video recording documented a criminal investigation simply
because the traffic accident resulted in a citation. We stated that “[t]he mere fact
that a record has some connection to a criminal proceeding does not automatically
exempt it under [the Right-to-Know Law or CHRIA].” Grove, slip op. at 8. We
further explained that the State Police’s evidence demonstrated that

               the [Mobile Video Recordings] are created to document
               troopers’ performance of their duties in responding to
9
  We remanded the case to permit the State Police to redact the audio portions of the Thomas
recording to the extent they contained witness interviews or utterances of private individuals who
had no notice of the recording.


                                               10
             emergencies and in their interactions with members of the
             public, not merely or primarily to document, assemble or report
             on evidence of a crime or possible crime. The [Mobile Video
             Recording] equipment is activated when an officer’s sirens or
             emergency lights are turned on, a non-investigative event.
             Moreover, [the State Police use Mobile Video Recordings] to
             document the entire interaction and actions of the trooper,
             including actions which have no investigative content, such as
             directions to motorists in a traffic stop or at an accident scene,
             police pursuits, and prisoner transports.         [Mobile Video
             Recordings] themselves are therefore not investigative material
             or videos, investigative information, or records relating or
             resulting in a criminal investigation exempt from disclosure
             under Section 708(b)(16) of the [Right-to-Know Law] or
             [CHRIA].

Id. at 9-10 (internal citations omitted and emphasis added).
             In sum, Grove held that mobile video recordings are not automatically
exempt under Section 708(b)(16). Further, the State Police did not prove by a
preponderance of evidence that the video recordings were exempt as records
relating to a criminal investigation. According to Rozier’s affidavit, the Vanorden
recording depicted the trooper “speaking with the operators of the vehicles,”
“observing the crash scene and the damage to the vehicles,” and “directing the
operator of the truck … to move his vehicle.” Grove, slip op. at 11. We concluded
that these activities did not constitute “investigative content,” which we suggested
would include activities such as taking measurements, collecting evidence, or
physically inspecting or analyzing an accident scene. Similarly, we held that the
State Police offered no evidence that the video component of the Thomas
recording depicting the trooper having conversations with the drivers and
bystanders was investigative in nature.



                                          11
             The case sub judice is virtually indistinguishable from Grove.
According to Rozier’s affidavit, the recording in this case depicts an “in-progress
vehicle code violation,” i.e., obstruction of a license plate, that resulted in a
warning. In Grove, the activity recorded actually did result in a traffic citation, i.e.,
a summary criminal offense. Nevertheless, we found the connection to a criminal
investigation too tenuous to allow the State Police to claim the recording to be
exempt as investigatory in nature. Here, “the connection to a criminal proceeding”
is non-existent. Grove, slip op. at 4. Grove received only a warning. Based on the
principles established in Grove, the recording requested by Grove is not exempt
from disclosure under the Right-to-Know Law or CHRIA.
             Accordingly, we affirm the Final Determination of the Office of Open
Records.
                                                ______________________________
                                                MARY HANNAH LEAVITT, Judge




                                           12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State Police,          :
                   Petitioner       :
                                    :
            v.                      :   No. 1646 C.D. 2014
                                    :
Casey Grove,                        :
                   Respondent       :


                                  ORDER

            AND NOW, this 28th day of September, 2015, the Application of
Petitioner Pennsylvania State Police to Supplement the Record is GRANTED. The
Final Determination of the Office of Open Records dated August 18, 2014, in the
above-captioned matter is hereby AFFIRMED.
                                        ______________________________
                                        MARY HANNAH LEAVITT, Judge
