            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Peterson,                             :
                                               : No. 1786 C.D. 2015
                              Petitioner       : Submitted: April 15, 2016
                                               :
                       v.                      :
                                               :
Pennsylvania Department of                     :
Corrections,                                   :
                                               :
                              Respondent       :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                   FILED: July 28, 2016

               Lawrence Peterson (Requester), pro se, petitions for review from a
final determination of the Office of Open Records (OOR) that denied his appeal
from the Pennsylvania Department of Corrections’ (Department) response to his
request under the Right-to-Know Law (RTKL).1 Requester argues OOR erred or
abused its authority in finding the entire record exempt from disclosure without
determining whether the redaction of any non-disclosable information was
possible. Upon review, we affirm.
               Requester, who is an inmate at the State Correctional Institution (SCI)
at Smithfield, filed a request for records regarding the Department’s transportation
of inmate William Keitel (Keitel) to the hospital in August 2013, including the

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
names of the corrections officers who transported Keitel or stood guard at the
hospital. He also requested all incident reports completed by those officers.2
               The Department denied the request on the basis the records are
exempt from disclosure under Section 708 of the RTKL, 65 P.S. §67.708.
Specifically, the Department asserted the release of records would threaten
personal security and public safety and were exempt under Sections 708(b)(1)(ii)
and 708(b)(2) of the RTKL, 65 P.S. §§67.708(b)(1)(ii), (b)(2). The Department
also claimed the records related to both criminal and noncriminal investigations
and were exempt under Sections 708(b)(16) and 708(b)(17) of the RTKL, 65
P.S. §§67.708(b)(16), (17).
               Requester appealed to OOR challenging the denial and asserting
grounds for disclosure. OOR invited the parties to supplement the record, and it
directed the Department to notify third parties of their ability to participate in the
appeal pursuant to Section 1101(c) of the RTKL, 65 P.S. §67.1101(c).                          The
Department submitted a position statement, along with declarations made under
penalty of perjury of James C. Barnacle, Director of the Department’s Office of
Special Investigations and Intelligence (Director Barnacle), and Major Victor
Mirarchi, the Department’s Chief of Security (Major Mirarchi).3

       2
          Specifically, he requested:
                I’m writing in regards to the following information regarding to be
                in receipt of all the names of the correctional officers that was [sic]
                involved with the transport to the UPMC – Altoona Hospital and
                guard duty at the hospital for the inmate William Keitel DU-3644
                on date 8-8-13 to 8-9-13 and all their incident reports while on
                duty at the Hospital.
Certified Record (C.R.), Item No. 1 (RTKL Request).
        3
          Requester also made a submission reasserting his position that the records are subject to
disclosure. However, because it was received after the record closed, OOR did not consider it.
OOR’s Final Determination, 9/3/2015, at 2 n.1.


                                                2
             In a response to an OOR clarification request, the Department made
an additional submission confirming that an “Extraordinary Occurrence Report”
(Report) is the only record responsive to the request. The Report contains the
names of the corrections officers, who transported Keitel and held guard at the
hospital, and their incident reports while on duty at the hospital. Additionally, it
describes the extraordinary occurrence of Keitel’s death, and contains reports by
each staff member involved in the extraordinary occurrence, as well as the
appropriate investigation or response to the occurrence, including any disciplinary
action.
             Major Mirarchi affirmed the Report at issue details the events
surrounding the extraordinary occurrence of Keitel’s death. Requester assaulted
Keitel, who was his cellmate. Keitel died as a result of the assault. Requester was
charged with and pled guilty to first degree murder, and he is now serving a life
sentence as a result.      Requester is seeking information about the events
surrounding his crime. Major Mirarchi attested that releasing the Report and the
names of the corrections officers would place those corrections officers at risk for
retribution for their involvement in a matter, which led to Requester receiving a
life sentence in prison.
             Director Barnacle described the nature of extraordinary occurrence
reports as important investigatory tools used to identify security risks in the prison.
He attested public disclosure of the contents of the Report would threaten the
personal security of individuals named in the Report.
             OOR determined the Report is the only record responsive to the
request. Further, OOR concluded that if the Report was released, it would produce
a substantial and demonstrable risk of retaliation to the individuals involved in the


                                          3
incident. OOR determined the Report was exempt from disclosure under the
personal safety exception under Section 708(b)(1)(ii) of the RTKL. In light of this
disposition, OOR did not examine the Department’s alternative grounds for
denying access.
              Requester then petitioned this Court for review.4 Requester contends
OOR erred or abused its discretion when it ruled the entire Report is not a public
record subject to disclosure without determining whether the redaction of any non-
disclosable information was possible. He claims the Department has an obligation
to disclose the non-exempt portions of this Report. Primarily, he argues the names
of the corrections officers, who received payment from the Department for
overtime when they transported Keitel to the hospital and stood guard there, are
not exempt from disclosure.5 According to Requester, the Report details the abuse
corrections officers inflicted on Keitel.
              A “public record” is defined in part as “[a] record, including a
financial record, of a Commonwealth . . . agency that: (1) is not exempt under
[S]ection 708 . . . .”       Section 102 of the RTKL, 65 P.S. §67.102.                Section
708(b)(1)(ii) of the RTKL exempts records that “would be reasonably likely to
result in a substantial and demonstrable risk of physical harm to or the personal

       4
           This Court has jurisdiction over final determinations involving Commonwealth
agencies, such as the Department. Section 1301(a) of the RTKL, 65 P.S. §67.1301(a). For
appeals from determinations made by the OOR involving Commonwealth agencies, our standard
of review is de novo and our scope of review is plenary. Bowling v. Office of Open Records,
75 A.3d 453, 477 (Pa. 2013).
        5
          In his appeal to this Court, Requester now claims he is entitled to the corrections
officers’ salary information. However, Requester did not seek any financial information in his
original request. See C.R., Item No. 1 (RTKL Request). In fact, Requester did not even raise
this issue before OOR. See C.R., Item No. 1 (Appeal). Requesters cannot change their RTKL
requests on appeal. Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 516 (Pa.
Cmwlth. 2010). Consequently, we will not address this issue on appeal.


                                              4
security of an individual.” 65 P.S. §67.708(b)(1)(ii). “Personal security issues are
of particular concern in a prison setting.” Carey v. Pennsylvania Department of
Corrections, 61 A.3d 367, 374 (Pa. Cmwlth. 2013); see Commonwealth v. Dugger,
486 A.2d 382, 384 (Pa. 1985) (“A prison setting involves unique concerns and
security risks . . . .”). The personal security exception “embraces two notions: risk
of physical harm and the risk to one's personal security,” which can include
financial harm. Delaware County v. Schaefer ex rel. Philadelphia Inquirer, 45
A.3d 1149, 1154 (Pa. Cmwlth. 2012) (en banc); accord Governor's Office of
Administration v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011).
             The agency receiving the request bears the burden of proving the
record is exempt by a preponderance of the evidence. Section 708(a) of the RTKL,
65 P.S. §67.708(a). The preponderance of the evidence standard, which is “the
lowest evidentiary standard, is tantamount to a more likely than not inquiry.”
Delaware County, 45 A.3d at 1156.
             To meet the personal security exemption, an agency must show by
preponderance of the evidence: “(1) a ‘reasonable likelihood’ of (2) ‘substantial
and demonstrable risk’ to a person’s personal security.”         Delaware County,
45 A.3d at 1156 (quoting Section 708(b)(1)(ii) of RTKL). A reasonable likelihood
requires more than speculation. Id. at 1158 (a general report regarding identity
theft did not suffice). A substantial and demonstrable risk means real, apparent, or
evident. Purcell, 35 A.3d at 820.
             An agency can meet its burden of proof through affidavits. Moore v.
Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010). The Court must
consider whether the affidavit includes detailed information describing the nature
of the records requested, and specific information connecting the nature of the


                                         5
records to the likelihood that disclosing them would threaten personal safety in the
manner described.     See Carey, 61 A.3d at 376.       “Given the heightened risk
associated with prisons, representations regarding perceived threats to individual
[Department] personnel posed by inmates are persuasive.” Carey, 61 A.3d at 374.
However, conclusive or generalized affidavits based on mere speculation as to
possible harm are insufficient. Office of the Governor v. Scolforo, 65 A.3d 1095
(Pa. Cmwlth. 2013) (en banc); Carey, 61 A.3d at 376; see Purcell, 35 A.3d at 818-
819. Where a sworn statement is “the result of extensive experience,” it is founded
on more than speculation. Carey, 61 A.3d at 376-377.
             Here, Requester seeks records that pertain to his murder of his
cellmate.   In response, the Department presented the declarations of Director
Barnacle and Major Mirarchi.       Director Barnacle, who was appointed to the
director position in 2008, is responsible for the supervision of criminal and
noncriminal investigations pertaining to allegations of staff and inmate misconduct
within the Department. Prior to his appointment, he served as an agent and agent
supervisor with the Federal Bureau of Investigation for a combined total of 31
years. Director Barnacle described the nature of extraordinary occurrence reports
and the danger presented by releasing such reports as well as the identities of
individuals involved in the reports. He attested:

             7. Extraordinary occurrences are occurrences that have a
             significant impact, or potential for a significant impact,
             upon the public, staff, inmates, the operation of the
             Department, etc.

             8. Extraordinary occurrences range in character from
             events involving small numbers of individuals (such as
             incidents of violence or sexual assault) to matters
             affecting large scale operations, such as a lock-down of
             an institution.

                                         6
9. An Extraordinary Occurrence Report is a tool used by
the senior staff to identify and detect issues, principally
security issues, that should be addressed or which
warrant further review or attention, as well as to
determine efficacy of existing policies and practices by
capturing and reviewing specified information.

                            ***

11. The requested record contains a detailed description
of the extraordinary occurrence; a report by each staff
member involved in the extraordinary occurrence; the
appropriate investigation and/or other responses to the
occurrence, including, if any, the issuance of any
disciplinary action.

                            ***

13. Public disclosure of the Extraordinary Occurrence
Report and the information contained therein would
result in grave security issues at correctional institutions.

14. Public disclosure of the contents of investigational
records, such as the Extraordinary Occurrence Report, to
unauthorized individuals would deprive the affected
inmate or inmates, affected staff and/or the alleged
abuser of the right to an impartial review of the
underlying matter. Staff, inmates, or others who may be
adversely interested in the investigation would be aware
of its existence and the allegations and would be likely to
subject the witnesses, alleged victim/abuser or reviewing
investigator to threats, manipulation, abuse or other
pressure to obtain a particular result.

15. Public disclosure of investigational records is
reasonably likely to result in retaliation by inmates and
staff whose alleged misbehavior is described in the
investigational records. Such individuals would be
reasonably likely to identify, harass, threaten or retaliate
against the inmate or the other persons identified in the
investigational records.

                             7
             16. Moreover, such individuals would be put on notice to
             change behavior or destroy evidence related to the
             investigation, thereby jeopardizing the ability of the
             Department investigator to gather all relevant facts and
             reach an impartial or just conclusion with regard to the
             merits of the investigation.

                                         ***

             20. Public availability of investigational records would
             hinder the Department's ability to secure administrative
             or civil sanctions or pursue criminal charges in
             appropriate cases.

                                         ***

             24. Violent attacks are always a real danger in the prison
             context and violent retaliation will result in disclosure of
             investigational records which describe which individuals
             provided information related to the investigation.

             25. Inmates that are the object of the allegations (or those
             allied with such inmates and staff, by virtue of friendship,
             familial relationship, intimate relationship or gang
             membership) will retaliate against individuals that
             provide information, which they determine to be
             unfavorable, to investigators.

             26. In certain situations, the object of the allegations may
             be retaliated against because of the nature of the
             allegations (i.e. sexual abuse, threats of violence or
             physical assault).

Certified Record (C.R.), Item No. 3 (Declaration of James C. Barnacle).
             Major Mirarchi’s declaration described the specific nature of the
Report requested and the danger to the corrections officers’ personal security if the
information is released in this particular case.      As Chief of Security, Major
Mirarchi oversees security aspects of the Department. He attested:


                                          8
5. On August 2, 2013, the Requester assaulted his then
cellmate, William Keitel, which ultimately resulted in
Keitel's death.

6. The Requester ultimately plead [sic] guilty to first
degree murder and received a life sentence in prison in
addition to the 40 to 80 year robbery sentence he had
been serving.

7. Now, the Requester is seeking the names of
corrections officers who transported Keitel the day the
Requester assaulted him and who stayed with Keitel at
the hospital.

8. Providing the Requester or anyone in the public who
has ties with the Requester with the names of the
corrections officers who were with former inmate Keitel
and their reports poses a security concern.

9. The names of the corrections officers should not be
provided to the Requester as it is reasonable to conclude
that this inmate may seek retribution for their
involvement in a matter that led to the Requester
receiving a sentence to life in prison.

10. The inmate could retaliate against the corrections
officers by way of physical harm whether brought on by
the Requester himself or by his associates.

                          ***

12. The potential for a corrections officer to suffer
physical harm in the execution of his or her duties is an
inherent risk of a corrections officer's job; however, by
providing the information here would greatly increase
that threat.

13. Corrections officers' duties include, inter alia, the
enforcement of the law and prison rules and regulations;
the investigation of threats to security; and the
maintenance of order and discipline in the prison system.


                           9
             14. Also the identity of these particular corrections
             officers to this inmate will further enable inmates and/or
             others to identify the officers, their residences, and their
             families to orchestrate threats, harassment, assaults, or
             physical harm, or to file fraudulent liens or other
             financially damaging documents.             While specific
             examples of financial and physical harm exist, disclosure
             of those examples poses an inherent security risk because
             such information is reasonably likely to prompt inmates
             to repeat such activity. Suffice it to say, real damage to
             an officer's person or finances or to the person or
             finances of those individuals closest to the officer has
             been the result of disseminating information such as is
             requested here.
C.R., Item No. 3 (Declaration of Major Victor Miarchi).
             Upon review, the Department’s affidavits provided detailed
information describing the nature of the information contained in the Report as
well as the real danger posed in releasing the information, particularly the identity
of the corrections officers. The affidavits included sufficient factual details for the
OOR to determine that the release of the Report was reasonably likely to result in
substantial and demonstrable risk of physical harm to or the personal security of
the corrections officers identified in the Report. Thus, we conclude OOR properly
determined the Report is not a public record as it falls within the personal security
exemption.
             Insofar as Requester argues for redaction, Section 706 of the RTKL,
65 P.S. §67.706, provides for redaction when the record contains information that
is both subject to disclosure and exempt from disclosure. However, the redaction
provision only applies to records that are first determined to be “public records.”
65 P.S. §67.706. A record that falls squarely within one of the exceptions in
Section 708 does not constitute a “public record” and redaction is not implicated.
Heavens v. Department of Environmental Protection, 65 A.3d 1069, 1077 (Pa.

                                          10
Cmwlth. 2013); Department of Health v. Office of Open Records, 4 A.3d 803, 815
(Pa. Cmwlth. 2010). As we determined the Report is not a public record, we reject
Requester’s argument that portions of the document, particularly the officers’
names, are subject to disclosure.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                        11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Peterson,                     :
                                       : No. 1786 C.D. 2015
                       Petitioner      :
                                       :
                 v.                    :
                                       :
Pennsylvania Department of             :
Corrections,                           :
                                       :
                       Respondent      :


                                    ORDER


           AND NOW, this 28th day of July, 2016, the final determination of the
Office of Open Records, dated September 3, 2015, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
