                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                                  :
                        Petitioner               :
                                                 :
                 v.                              : No. 730 C.D. 2016
                                                 : Submitted: August 18, 2017
Office of Inspector General,                     :
                   Respondent                    :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: October 27, 2017

                 Alton D. Brown, pro se, petitions for review of a final determination of
the Office of Open Records (OOR) dismissing his appeal of the Office of Inspector
General’s decision to deny his request for information under the Right-to-Know
Law.1 Brown argues that OOR erred in finding that the Inspector General met its
burden of proving that the requested information was either exempt from disclosure
or did not exist. We affirm in part, vacate in part and remand the matter for further
proceedings.
                 On February 24, 2016, the Inspector General received a request from
Brown, an inmate at SCI-Greene, seeking:

                 1. All letters/complaints to O.I.G. from Pa. D.O.C. prisoners
                    reporting abuse, corruption, harassment, and/or any other
                    inappropriate or unlawful acts by Pa. D.O.C. staff during
                    2010-2015, and requesting assistance, that were forwarded to
                    the Pa. D.O.C. for disposition.


1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
                 2. All documents reflecting OIG’s disposition of the
                    letter/complaints listed in paragraph No. 1, and OIG policy
                    that governs the handling of prisoner complaints.

Certified Record (C.R.) Item No. 4, Attachment B, at 1 (emphasis in original). In a
letter dated February 29, 2016, the Inspector General’s Records Officer denied
Brown’s request for the stated reasons that (1) inmate complaints and documents
relating to their disposition are records related to noncriminal investigations and as
such are exempt from disclosure under Section 708(b)(17) of the Right-to-Know
Law;2 (2) inmate complaints and documents relating to their disposition are

2
    It states as follows:
           (b) Exceptions. – Except as provided in subsections (c) and (d), the following are
           exempt from access by a requester under this act:
                                                    ***
                    (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.
                           (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.
                           (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


                                                  2
predecisional      deliberations      and    exempt       from     disclosure     under     Section
708(b)(10)(i)(A) of the Right-to-Know Law;3 and (3) Brown had requested this same
information on two prior occasions and his repeated requests have placed an undue
burden on the Inspector General.4 As to the request for records governing the



                               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).
3
  It exempts:
        (10)(i) 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.
65 P.S. §67.708(b)(10)(i)(A).
4
  Pursuant to Section 506(a)(1) of the Right-to-Know Law “[a]n agency may deny a requester
access to a record if the requester has made repeated requests for that same record and the repeated
requests have placed an unreasonable burden on the agency.” 65 P.S. §67.506(a)(1).
      The Inspector General also claimed that the complaints may be exempt because release could
cause physical harm to the complainants; public safety could be at risk; disclosure could endanger
the security of a building; the information may relate to a criminal investigation; the release of the
information may be prohibited by statute; and the information may be protected by privilege.


                                                  3
Inspector General’s policy for handling inmate complaints, the Records Officer
stated that the records did not exist.
              Brown appealed, and OOR invited the parties to supplement the
record.5 Relevant to this appeal, Brown submitted a copy of a 2015 complaint he
filed with the Inspector General asserting that the Department of Corrections had
improperly confiscated his personal property and a copy of the Inspector General’s
response to Brown. For its part, the Inspector General submitted the affidavit of
Melissa K. Yerges, Director of the Bureau of Administrative Services, and the
affidavit of David P. Todd, Deputy Inspector General.6 Both affidavits asserted that
the requested records were exempt because they were related to noncriminal
investigations and that no records existed with respect to the Inspector General’s
policy on prisoner complaints.
              OOR affirmed the Inspector General’s denial of Brown’s request. It
held, however, that the Inspector General did not demonstrate that Brown’s repeated
requests have placed an undue burden on it, noting that Brown’s single prior request
for the same type of records was not disruptive. With respect to Brown’s request for
inmate complaints, the OOR held that this information was exempt from disclosure
pursuant to Section 708(b)(17) of the Right-to-Know-Law, 65 P.S. §67.708(b)(17).
Finally, OOR held that Yerges’ affidavit established that the Inspector General did
not have a record of a policy on prisoner complaints.




5
 OOR did not conduct a hearing.
6
  The record contains two affidavits by Todd. The first affidavit is dated February 29, 2016; the
second affidavit is dated March 22, 2016.


                                               4
               Brown petitioned for this Court’s review.7 He asserts that the Inspector
General did not establish that the inmate complaint information he requested was
exempt under the noncriminal investigatory exception or that a policy on prisoner
complaints did not exist. Furthermore, OOR did not address the evidence he
presented, which explicitly contradicted the Inspector General’s stated reasons for
denying his record request.
               Brown explains that he filed a complaint with the Inspector General on
November 3, 2015, regarding confiscation of his property by prison staff at SCI-
Greene. C.R. Item No. 1 at 5. In his 2015 complaint, Brown contended that while
he was at the prison hospital, staff took property from his cell without justification
and did not provide a receipt of the property taken. The Inspector General referred
this matter to the Department of Corrections on November 9, 2015, in a letter from
Grayling G. Williams, Inspector General, to John E. Wetzel, Secretary of
Corrections:

               The Office of Inspector General … received a complaint from
               [Brown], an inmate at SCI-Greene, requesting assistance as he
               alleges staff at SCI-Greene sabotaged his legal activities after
               property was confiscated from his cell. For your convenience, a
               copy of the complaint is attached.
               After reviewing the complaint, the [Inspector General]
               determined the complaint is not within the [Inspector General’s]
               investigative jurisdiction and is referring the complaint to you for
               whatever action you deem appropriate.

C.R. Item No. 1 at 7 (emphasis added). Brown argues that if the Inspector General
has no jurisdiction to investigate inmate complaints regarding prison conditions and,
indeed, no actual investigation has taken place, then inmate complaints sent to the

7
 Our review of a final determination of OOR is de novo and our scope of review is plenary.
Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 2014).
                                            5
Inspector General cannot be exempt under Section 708(b)(17) of the Right-to-Know-
Law. 65 P.S. §67.708(b)(17).
              The Inspector General responds that Stein v. Plymouth Township, 994
A.2d 1179 (Pa. Cmwlth. 2010), established that all complaints to an agency are
exempt from disclosure under the Right-to-Know Law, regardless of whether or not
they lead to an investigation. Thus, the inmate complaints requested by Brown are
exempt. Further, Yerges’ affidavit established that the Inspector General does not
have a record of a policy on inmate complaints.
              Section 301(a) of the Right-to-Know Law requires “Commonwealth
agenc[ies]” to “provide public records in accordance with this act.”                  65 P.S.
§67.301(a). A “Commonwealth agency” is defined in Section 102 of the Right-to-
Know Law, in relevant part, as:

              (1) Any office, department, authority, board, multistate agency
              or commission of the executive branch, an independent agency
              and a State-affiliated entity. The term includes:
                     (i) The Governor’s Office.

65 P.S. §67.102. The Inspector General was “created within the Executive Office
of the Governor….” 4 Pa. Code §1.291.8               As such, the Inspector General is a
Commonwealth agency obligated to disclose public records.

8
 Recently, Article V-a was added to Title 71, Chapter 2 of the The Administrative Code of 1929,
delineating the powers, purpose and duties of the Inspector General as follows:
       (a) Powers.--The State Inspector General shall have the power to:
              (1) Make an investigation and report relating to the administration
              of a program and operation of an executive agency that the State
              Inspector General determines is necessary. If the State Inspector
              General determines that a report should be issued, the State
              Inspector General may consult with the Office of General Counsel
              or the Attorney General before issuing the report to insure against


                                               6
       an adverse impact on a grand jury proceeding or prosecution being
       conducted by a law enforcement agency.
       (2) Request information or assistance necessary for carrying out the
       duties and responsibilities under this article from the Federal
       Government, an executive agency or a local government agency or
       a unit of a Federal, State or local government agency.
       (3) Require and obtain, by written notice from an officer and
       employee of an executive agency, information, documents, reports,
       answers, records, accounts, papers and other necessary data and
       documentary evidence.
        (4) Have direct and prompt access to the heads of executive agencies
        if necessary for a purpose pertaining to the performance of functions
        and responsibilities under this article.
        (5) Select, appoint and employ individuals necessary for carrying
        out the functions, powers and duties of the office. The employees
        shall be employed in accordance with current procedures of the
        Office of Administration and may be assigned by the State Inspector
        General to a designated executive agency.
(b) Purpose.--The purpose of the Office of State Inspector General is as follows:
        (1) To deter, detect, prevent and eradicate fraud, waste, misconduct
        and abuse in a program, operation and contracting of an executive
        agency.
        (2) To keep the head of an executive agency and the Governor fully
        informed about a problem and deficiency relating to the operation
        or administration of a program or contracts entered into by an
        executive agency.
        (3) To provide leadership, coordination and control over satellite
        Inspector General Offices in a designated executive agency to
        ensure a coordinated and efficient administration of duties and use
        of staff. The existing Office of Inspector General in the Department
        of Transportation shall continue as a satellite Inspector General
        Office. Each satellite Inspector General Office in an executive
        agency shall report to and follow the direction of the State Inspector
        General.
(c) Duties.--The State Inspector General shall:
        (1) Inspect, evaluate, investigate and review the activities, records
        and individuals with contracts, procurements, grants, agreements
        and other financial arrangements undertaken by an executive


                                        7
               agency for the purposes of identifying fraud, waste, misconduct or
               abuse.
               (2) Conduct civil and administrative investigations of a program or
               operation of an executive agency.
               (3) Make referrals to the Auditor General for the audit of the
               economy, efficiency and effectiveness of an executive agency’s
               operations and functions and conduct reviews of the executive
               agency’s compliance with the performance measurement system.
               (4) Review the reliability and validity of the information provided
               by an executive agency’s performance measures and standards.
               (5) Provide information and evidence that relates to criminal acts
               discovered during the course of an investigation into an executive
               agency to appropriate law enforcement officials.
               (6) Receive and investigate complaints from a source or upon the
               State Inspector General’s own initiative concerning alleged abuses,
               frauds and service deficiencies, including deficiencies in the
               operation and maintenance of an executive agency facility.
               (7) Engage in prevention activities, including, but not limited to,
               review of legislation, rules, regulations, policies, procedures and
               transactions, training and education.
               (8) Refer matters for further civil, criminal and administrative
               action to appropriate administrative and prosecutorial agencies.
               (9) Conduct joint investigations and projects with other oversight
               or law enforcement agencies that are consistent with the powers
               and duties contained under this article.
               (10) Recommend remedial actions to be taken by an executive
               agency to overcome or correct operating or maintenance
               deficiencies and inefficiencies that were identified by the State
               Inspector General.
               (11) Issue public reports.
               (12) Maintain information regarding the cost of investigations and
               cooperate with appropriate administrative and prosecutorial
               agencies in recovering the costs from nongovernmental entities
               involved in willful misconduct.
               (13) Perform other functions necessary to effectuate this article.
Act of April 9, 1929, P.L. 177, added by the Act of July 20, 2017, P.L. 328, 71 P.S. §213.


                                                8
             Here, the Inspector General asserts that the Right-to-Know Law has
exempted from disclosure the records identified in paragraph 1 of Brown’s request.
Section 708(a)(1) states as follows:

             The burden of proving that a record of a Commonwealth agency
             or local agency is exempt from public access shall be on the
             Commonwealth agency or local agency receiving a request by a
             preponderance of the evidence.

65 P.S. §67.708(a)(1). A preponderance of the evidence is “such proof as leads the
fact-finder ... to find that the existence of a contested fact is more probable than its
nonexistence.” Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435,
439 (Pa. Cmwlth. 2011) (quoting Department of Transportation v. Agricultural
Lands Condemnation Approval Board, 5 A.3d 821, 827 (Pa. Cmwlth. 2010)).
             In holding that inmate complaints are exempt from disclosure pursuant
to Section 708(b)(17) of the Right-to-Know Law, both OOR and the Inspector
General relied upon Stein, 994 A.2d 1179. In that case, a citizen complained to the
township that a landowner was violating the zoning ordinance, prompting the
township to initiate an enforcement action against this landowner. The defendant
landowner requested the township provide him with all records relating to the
commencement of the enforcement proceedings, including the complaint. The
township granted the request in part. It furnished copies of the enforcement notices,
but it refused to provide a copy of the complaint or the name of the complainant,
stating that this information was exempt from disclosure under Section 708(b)(17)(i)
of the Right-to-Know Law.
             OOR held that because complaints are exempt from disclosure, all
information in a complaint, such as the complainant’s name, is exempt. The



                                           9
landowner appealed to the trial court, which affirmed OOR. The landowner then
appealed to this Court.
             We agreed with the trial court that information in a citizen complaint is
exempt from disclosure. We rejected the requesting landowner’s argument that
because “the agency’s investigation was initiated upon the agency’s internal
evaluation of the information it received, not upon the name of the complainant,”
the information was disclosable. Stein, 994 A.2d at 1182 n.8. We concluded that
“all complaints are exempt from disclosure whether they caused the investigation to
commence in whole or in part or not at all.” Id. (emphasis added).
             However, we later clarified Stein to mean that there must be an
investigation for the exemption to apply. We reasoned as follows:

             We agree with [r]equester, however, that complaints are not
             automatically exempt, as the OOR seemed to state citing [Stein,
             994 A.2d at 1182 n.8]. In Stein, the [r]equester was arguing that
             the agency’s investigation was initiated upon the agency’s
             internal evaluation of the information it received and not on the
             name of the complainant which the requester sought from the
             complaint. In response, this Court stated that the argument was
             without merit because “all complaints are exempt from
             disclosure whether they caused the investigation to commence in
             whole or in part or not at all.” Id. (emphasis added). However, to
             establish the applicability of any of the enumerated exemptions,
             under Section 708(b)(17), the agency must demonstrate that the
             records sought relate to a noncriminal investigation. See
             Lackawanna County Government Study Commission v. Scranton
             Times, (Pa. Cmwlth., No. 1938 C.D. 2014, filed November 20,
             2015) 2015 WL 7357925. While this Court’s unreported
             memorandum opinions may not be cited as binding precedent,
             they may be cited for persuasive value. 210 Pa. Code § 69.414.

Black v. Pennsylvania State Police, (Pa. Cmwlth., No. 676 C.D. 2016, filed
November 23, 2016) (Slip Op. at 9 n. 16) (emphasis in original).


                                         10
              In short, Stein does not stand for the proposition that a complaint is
exempt from disclosure under Section 708(b)(17)(i) of the Right-to-Know Law
where that complaint does not lead to an investigation. To the contrary, there must
be an investigation.    Further, this Court explained “that, as used in Section
708(b)(17), the term ‘investigation’ means a systematic or searching inquiry, a
detailed examination, or an official probe.” Department of Health v. Office of Open
Records, 4 A.3d 803, 810-11 (Pa. Cmwlth. 2010). Finally, the investigation must be
“conducted as part of an agency’s official duties.”       Johnson v. Pennsylvania
Convention Center Authority, 49 A.3d 920, 925 (Pa. Cmwlth. 2012) (quoting
Department of Health, 4 A.3d at 814) (emphasis omitted).
              Here, OOR did not address whether an investigation was actually
conducted by the Inspector General. It did not address the evidence presented by
Brown that the Inspector General had acknowledged in writing that a complaint
about prison staff was not within the Inspector General’s “investigative
jurisdiction….” C.R. Item No. 1 at 7. Where the Inspector General lacks authority
to do a noncriminal investigation, the exemption in Section 708(b)(17)(i) of the
Right-to-Know Law cannot apply. Johnson, 49 A.3d at 925.
              OOR addressed neither Brown’s argument nor his evidence. It has
made no findings about whether the Inspector General actually investigates inmate
complaints. Accordingly, we reverse OOR’s final determination that the Inspector
General has met its burden of proof with respect to Brown’s request for other inmate
complaints.
              With respect to the request in paragraph 2, Brown does not challenge
OOR’s determination that the Inspector General does not have a record setting forth
its policy with respect to inmate complaints. However, paragraph 2 of Brown’s


                                         11
request also seeks information on the Inspector General’s disposition of the inmate
complaints requested in paragraph 1 of the request. OOR found that the Inspector
General met its burden of proving that all of the records requested in paragraph 2 of
the request did not exist, based on Yerges’ affidavit. Her affidavit states as follows:

             I reviewed the Request and determined [the Inspector General]
             does not have in its possession any “documents reflecting [the
             Inspector General’s] disposition of the letter/complaints listed in
             paragraph No1, and [the Inspector General] policy that governs
             the handling of prisoner complaints” or any other records
             responsive to the second paragraph of the request[].

Yerges Affidavit (3/23/16), C.R. Item No. 4, Attachment D, ¶7 at 2 (emphasis in
original). Todd’s Affidavit states otherwise:

             [The Inspector General] has determined that there are no
             responsive records to the request in paragraph 2 for “[Inspector
             General] policy that governs the handling of prisoner
             complaints.” [The Inspector General] has also determined that
             the only responsive records to paragraph 1 and the remainder of
             paragraph 2 would be ones that would, if disclosed, reveal
             information regarding the institution, progress or result of an
             agency investigation or otherwise consist only of official
             [Inspector General] investigative materials.

Todd Affidavit (2/29/16), C.R. Item No. 1 at 15, ¶30 at 5 (emphasis added).
             There is a discrepancy between these two affidavits. Yerges states that
records showing the disposition of inmate complaints do not exist, and Todd asserts
that these records consist of “official” investigative materials, suggesting that they
do exist. There would be no reason to raise an exemption argument for non-existent
records. In any event, the record includes two letters from the Inspector General
disposing of one of Brown’s prior complaints, i.e., the letter advising Brown that the
Inspector General is referring his complaint to the Department of Corrections and
the letter from the Inspector General to the Department of Corrections. C.R. Item
                                          12
No. 1 at 6-7. These documents cannot be reconciled with the statements in Yerges’
affidavit. We reverse the determination of OOR that the Inspector General proved
that it has no records relating to the disposition of the requested inmate complaints.
               For the above-stated reasons, we affirm the OOR’s final determination
holding that the Inspector General does not have a record of a policy for handling
inmate complaints. In all other respects, we reverse the final determination and
remand for further consideration of the evidence of record.9

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge

Judge Cosgrove did not participate in the decision in this case.




9
  We decline to exercise our authority to independently review the record because “allowing OOR
to make an initial decision [on the record] allows for a more developed analysis of the important
issues.” Bagwell v. Pennsylvania Department of Education, 76 A.3d 81, 91 (Pa. Cmwlth. 2013).
Additionally, should OOR find that the Inspector General did not meet its burden of proof
regarding the noncriminal investigation exemption or regarding its claim that certain documents
do not exist, it must then consider the other exemptions claimed exceptions raised by the Inspector
General below.
                                                13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                          :
                   Petitioner            :
                                         :
            v.                           : No. 730 C.D. 2016
                                         :
Office of Inspector General,             :
                   Respondent            :

                                    ORDER

            AND NOW, this 27th day of October, 2017, the final determination of
the Office of Open Records, dated April 13, 2016, is AFFIRMED in part, and
VACATED in part and this matter is REMANDED for further proceedings
consistent with the foregoing opinion.
            Jurisdiction relinquished.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge
