                           [J-93-2016] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


PENNSYLVANIA STATE POLICE,                     :   No. 25 MAP 2016
                                               :
                     Appellant                 :   Appeal from the Order of the
                                               :   Commonwealth Court dated July 7,
                                               :   2015 at No. 1146 CD 2014 affirming in
              v.                               :   part, reversing in part and remanding in
                                               :   part the Final Determination of the
                                               :   Office of Open Records at No. AP 2014-
MICHELLE GROVE,                                :   0828 dated June 17, 2014.
                                               :
                     Appellee                  :   ARGUED: September 14, 2016


                      CONCURRING AND DISSENTING OPINION


JUSTICE MUNDY                                            DECIDED: June 20, 2017
       The Majority provides an admirable exposition of the facts, arguments and

guiding legal principles we confront in this case, and I agree with many of its

conclusions. Specifically, I join Parts I, II-A, III and IV of the Majority Opinion. However,

I diverge from the Majority’s analysis in Part II-B where it accepts the Commonwealth

Court’s video/audio distinction in determining whether the subject mobile vehicle

recordings (MVRs) are records “relating to or resulting in a criminal investigation,” or

“investigative information” under the Right to Know Law (RTKL) and the Criminal History

Record Information Act (CHRIA), respectively. 65 P.S. § 67.708(b)(16)(ii); 18 Pa.C.S. §

9106(c)(4).

       I agree with the Majority on the following preliminary determinations. The MVRs

constitute “records” for the purpose of RTKL and CHRIA. Majority Opinion at 24. The

Pennsylvania State Police (PSP), as the party asserting an exception to the general rule

of disclosure, bears the burden to show the exception applies by a preponderance of
the evidence, and that exceptions are to be narrowly construed. Id. I accept that the

term “criminal investigation,” not being otherwise defined in the RTKL, takes on its “plain

meaning and common usage.” Id. at 25.1 I agree with the conclusion that, because

there are instances where an MVR may not relate to a criminal investigation, adoption

of a per se rule for an exception to disclosure is not appropriate.2 Id. at 27. Therefore, I

agree that the determination of whether the criminal-investigation exception applies to a

particular MVR must be made on a case-by-case basis. Id. at 28.

       The Commonwealth Court noted that it had previously held that “records created

to report on a criminal investigation or set forth or document evidence in a criminal

investigation or steps carried out in a criminal investigation” are exempt from disclosure

under the RTKL and CHRIA. Pennsylvania State Police v. Grove, 119 A.3d 1102, 1108

(Pa. Cmwlth. 2015) (citing cases). The Commonwealth Court, after reviewing the PSP’s

account of the contents of the MVRs in this case, determined that portions and aspects

1
  To the definitions of “criminal” and “investigation” supplied by the Majority, I add the
meaning of “related” as “connected by reason of an established or discoverable
relation.”        Related     Definition,   MERRIAM-W EBSTER       ONLINE     DICTIONARY,
https://www.merriamwebster.com/dictionary/related (last visited Mar. 28, 2017).
2
   While I reach the same conclusion, I do so on a narrower basis than the
Commonwealth Court and the Majority. I disagree with the Commonwealth Court that
the Rozier Affidavit supports the conclusion that “MVRs are created to document
troopers’ performance of their duties in responding to 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.” Grove, 119 A.3d at 1108. To the
contrary, the Affidavit does not speak to a “primary” purpose. Further, the fact that the
MVRs are automatically engaged upon activation of the vehicle’s emergency lights does
not establish such purpose.           I deem some of the examples recited by the
Commonwealth Court of non-investigative uses of an MVR as equally supporting an
investigative function. Nevertheless, there may be instances where emergency lights
are activated and the MVR does not relate to a criminal investigation, such as where a
police officer is directing traffic at an intersection during a power outage, or where a
natural obstacle is blocking traffic. Such examples preclude the application of a per se
rule in this case.



                           [J-93-2016] [MO: Dougherty, J.] - 2
of the MVRs related to a criminal investigation and portions did not.      It reasoned as

follows.

              Applying these principles to the two MVRs at issue here, we
              conclude that PSP has not shown that the Vanorden MVR
              has any investigative content. This MVR has only a video
              component and the Rozier Affidavit describes it as depicting
              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 involved in the
              accident to move his vehicle to a safer area.” PSP does not
              contend that this MVR shows any measurements, collection
              of evidence, physical inspection or analysis of what the
              accident scene showed. PSP has therefore not shown that
              this MVR contains any investigative information that it could
              be entitled to redact. . . .

              Unlike the Vanorden MVR, this MVR contains an audio
              recording that the Rozier Affidavit describes as including the
              trooper “interviewing the operators of the vehicles” and
              having “an extensive conversation with the operator of the
              truck concerning the status of his truck classification, with
              assistance from Trooper Vanorden via the telephone.” PSP
              has not provided any evidence that the video depiction of
              these conversations contains any information as to their
              contents or that the video component of this MVR contains
              any other information that is investigative in nature. The
              audio of those conversations, however, are recordings of
              witness interviews. Because those recorded interviews are
              part of an investigation of the accident that included possible
              criminal charges, they are records “relating to or resulting in
              a criminal investigation” and “investigative materials” exempt
              from disclosure under Section 708(b)(16) of the RTKL and
              “investigative information” under CHRIA. Accordingly, PSP
              must be permitted to redact the witness interviews from the
              audio component of the Thomas MVR prior to providing that
              MVR to Requester.


Id. at 1109-1110 (citations omitted).

       The Majority adopts the same reasoning. It observes “[w]ith regard to the MVRs

requested by Grove in this case, we must determine whether the video aspects

generally depict a systematic inquiry or examination into a potential crime.” Majority


                           [J-93-2016] [MO: Dougherty, J.] - 3
Opinion at 26.      It concludes “[t]he video depiction presents nothing more than a

bystander would observe.” Id. at 28. The Majority continues that the citations issued in

this case were based on the statements and accounts given by the witnesses

interviewed by the troopers. Id. Thus it concludes “the fact and nature of the Vehicle

Code violations could not have been garnered from the video-only aspect of the MVRs.”

Id.   Accordingly, it found no error in the Commonwealth Court’s holding that the video

portion was not related to a criminal investigation and, if the audio portion was redacted,

should be released to the requester.

       I believe this analysis is flawed and creates additional requirements not inherent

in the general meaning of “related to a criminal investigation.”         First, a criminal

investigation will not invariably result in the filing of citations or charges, or the

commencement of criminal proceedings.           An investigation may well result in a

conclusion that no crime has been committed or that a particular subject being

investigated is unconnected to the suspected crime.         Those inquiries are no less

“related” to the investigation than are those yielding information ultimately used in

proving an offense. Therefore, it is immaterial to our analysis whether the citations

issued in this case ended up being based on statements only or upon additional

information such as the configuration of the scene or the observations of the behavior of

the participants.   Second, the notion that the video portions of the MVRs’ witness

interviews contain no investigative information is, in my view, unsound. The video may

well depict a witness’s demeanor, physical condition, and gestures, which give context

to the statements provided. As such, they are as related to the inquiry as are the

content of the statements.3 Also, the video may depict “steps carried out in a criminal


3
  In certain situations a video portion of a witness interview may present the possibility
of interpretation through lip-reading. There is no indications the MVRs in this case were
(continued…)

                           [J-93-2016] [MO: Dougherty, J.] - 4
investigation.”   See Grove, 119 A.3d at 1108.4          That the police did not need this

information to file the instant citations is, again, immaterial. Third, the fact that a portion

of a police investigation occurs in a public place, such that a “bystander” may observe

parts of what occurred, in no way renders a recording of the police activities any less a

record related to the investigation.

       Having accepted that Troopers Thomas and Vanorden engaged in a criminal

investigation upon arriving at the scene of the accident, the MVRs’ record of the steps

the officers took, the persons they spoke with, and the state of the scene they

encountered became a record related to that investigation. The exercise engaged in by

the Commonwealth Court and the Majority to determine what was actually used or

relied upon from that record to file the instant citations creates an additional result-

related element to the language of Section 67.708(b)(16)(ii)’s exception.            I discern

nothing in the plain language of Section 67.708(b)(16) that makes the question of




(…continued)
sufficiently clear to make this an issue, but it does illustrate the artificial nature of the
video/audio distinction relied on by the Commonwealth Court and the Majority.
4
  The Majority suggests these examples, illustrating the unsound logic of divorcing the
video portion of an MVR from the audio, were not shown to exist here in the record
presented by the PSP. Majority Opinion at 31 n.19. However, Rozier, in his affidavit,
did aver the following. “The [first] MVR depicts Trooper Vanorden speaking with the
operators of the vehicles. Trooper Vanorden can be seen observing the crash scene
and the damage to the vehicles. . . . The second MVR . . . depicts Trooper Thomas
interviewing the operators of the vehicles.” PSP Ex. 1 at 2. More importantly, the
suggestion misses the fundamental point of my dissent. It is immaterial to the issue of
relatedness to the admitted criminal investigation whether these video depictions in fact
were used or relied on by, or even helpful to the police in their decisions connected to
the investigation.




                            [J-93-2016] [MO: Dougherty, J.] - 5
whether a record is related to a criminal investigation dependent on the results of that

investigation.

       For these reasons I conclude that the MVRs at issue in this case are, in their

entirety, related to the criminal investigation conducted by the troopers at the accident

scene, and are not amenable to redaction. Accordingly, I would reverse the order of the

Commonwealth Court to the extent it directed release of the redacted video portions of

the MVRs. I respectfully dissent.




                          [J-93-2016] [MO: Dougherty, J.] - 6
