             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                                :
                                               : No. 2221 C.D. 2014
                              Petitioner       : Submitted: May 29, 2015
                                               :
                       v.                      :
                                               :
Pennsylvania Department                        :
of State,                                      :
                                               :
                              Respondent       :


BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY SENIOR JUDGE FRIEDMAN                                  FILED: September 2, 2015


               Alton D. Brown petitions for review, pro se, of the November 7, 2014,
final determination of the Office of Open Records (OOR), which dismissed Brown’s
appeal from the Pennsylvania Department of State’s (Department) open records
officer’s (Records Officer) decision to deny Brown’s request for information under
the Right-to-Know Law (RTKL).1 We affirm.


               Brown filed complaints against two medical professionals licensed by
the State Board of Medicine and the State Board of Osteopathic Medicine. On
September 25, 2014, the Records Officer received Brown’s letter requesting:



      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
       The Department[’s] letters to the licensee[s] that disclose the final
       outcome [of] the investigations of my complaints with the [State Board
       of Medicine and the State Board of Osteopathic Medicine], complaint
       Nos: 13-53-12408 and 13-49-12410. I note that this information is
       allowed pursuant to [40 P.S.] §1303.907(a).[2]

(Brown’s Req., 9/25/14, at 1.) In a letter dated September 30, 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 agency records related to noncriminal investigations.



       2
        Section 907(a) of the Medical Care Availability and Reduction of Error (MCARE) Act,
Act of March 20, 2002, P.L. 154, as amended.

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

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

                        (i) Complaints submitted to an agency.

                        (ii) Investigative materials, notes, correspondence and reports.
                                                     ...
                        (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) (emphasis added). “This court defined an ‘investigation’ in the context of
section 708 of the RTKL as ‘a systematic or searching inquiry, a detailed examination, or an official
probe.’” Department of Public Welfare v. Chawaga, 91 A.3d 257, 258-59 (Pa. Cmwlth. 2014)
(citation omitted).



                                                   2
              On October 17, 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 response to Brown’s appeal and two sworn affidavits
from Bernadette Paul, the deputy chief counsel of the Department’s prosecution
division.    In both affidavits, 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 State Board of Osteopathic Medicine
and the State Board of Medicine. (Paul Aff., 10/20/14, at 1.)4 Paul further stated that
the BEI had investigated a complaint against an osteopathic physician and a
complaint against a medical doctor and that:



              [T]he assigned prosecuting attorney ultimately closed this
              matter without filing any formal disciplinary charges. No
              fine or civil penalty, suspension, modification or revocation
              of a license was imposed. Providing access to the records
              from this investigation would disclose the institution,
              progress or result of the investigation by, among other
              things, showing what avenues of investigation were pursued
              or not.
(Id.)


              On November 7, 2014, the OOR issued a final determination denying
Brown’s appeal. The OOR determined that the Department had proven that the

        4
         Both affidavits are dated October 20, 2014, and contain identical language. The affidavits
vary to the extent that one addresses the Department’s investigation of a State Board of Medicine
licensee and the other addresses the Department’s investigation of a State Board of Osteopathic
Medicine licensee.


                                                3
letters Brown requested were exempt under section 708(b)(17)(vi)(A) of the RTKL,
65 P.S. §67.708(b)(17)(vi)(A).5 The OOR also determined that section 907(a) of the
MCARE Act, which exempts letters to a licensee that disclose the final outcome of an
investigation from the MCARE Act’s confidentiality provision, did not preclude the
records’ exemption under the RTKL. Brown now petitions this court for review.6


              First, Brown argues that the Department did not meet its burden of
proving that the letters that Brown requested were exempt under section
708(b)(17)(vi)(A) of the RTKL as agency records related to a noncriminal
investigation. Specifically, Brown argues that the Department’s affidavits do not
constitute sufficient evidence because they are conclusory. We disagree.


              Commonwealth agencies “shall provide public records in accordance
with [the RTKL].” 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.
A “public record” is defined as:


       5
          The Department’s response to Brown’s appeal asserted that the letters that Brown
requested were also exempt under section 708(b)(17)(i) and (ii) of the RTKL, 65 P.S.
§67.708(b)(17)(i) and (ii). (Dep’t Resp. at 4.) However, the OOR only addressed the exemption at
section 708(b)(17)(vi)(A) of the RTKL.

       6
         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 476.



                                               4
             A record . . . of a Commonwealth or local agency that: (1)
            is not exempt under section 708; (2) is not exempt from
            being disclosed under any other Federal or State law or
            regulation or judicial order or decree; or (3) is not protected
            by a privilege.

Id.

            An agency bears the burden of proving, by a preponderance of the
evidence, that a record is exempt from disclosure under one of the enumerated
exceptions. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). “Testimonial
affidavits found to be relevant and credible may provide sufficient evidence in
support of a claimed exemption.”         Heavens v. Pennsylvania Department of
Environmental Protection, 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013). “‘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 letters disclosing the results of the Department’s
noncriminal investigations of two licensees. These records are, by the very terms of
Brown’s request, exempt from disclosure under section 708(b)(17)(vi)(A) of the
RTKL, which exempts records that would reveal the results of an agency’s
noncriminal investigation.    Furthermore, Paul stated in the affidavits that the
prosecuting attorney closed the investigations without imposing civil penalties or
license restrictions on the licensees. The affidavits also explain how the requested
records are exempt under section 708(b)(17)(vi)(A) of the RTKL, rather than merely
presuppose the exemption in a conclusory statement. Therefore, the Department met



                                          5
its burden of proving that the requested letters were exempt from disclosure under
section 708(b)(17)(vi)(A) of the RTKL.7


              Next, Brown argues that the Department failed to offer evidence that
public policy supported denying his request. Section 506(c) of the RTKL provides:


                    An agency may exercise its discretion to make any
              otherwise exempt record accessible . . . if all of the
              following apply:

                      (1) Disclosure of the record is not prohibited under
                      any of the following:

                             (i) Federal or State law or regulation.

                             (ii) Judicial order or decree.

                      (2) The record is not protected by a privilege.

                      (3) The agency head determines that the public
                      interest favoring access outweighs any individual,
                      agency or public interest that may favor restriction of
                      access.


65 P.S. §67.506(c) (emphases added). “Although [s]ection 506(c) [of the RTKL]
grants an agency the discretion to release an otherwise exempt record under certain
circumstances, it does not require an agency to do so.” Department of Health v.

       7
           Brown also argues that the OOR erred in concluding that the letters were exempt from
disclosure because the letters were a routine function of the Department. However, because Brown
failed to raise this issue before the OOR, it is waived. See Fort Cherry School District v. Coppola,
37 A.3d 1259, 1261-62 (Pa. Cmwlth. 2012) (holding that the requester waived an issue by failing to
raise it before the OOR).



                                                 6
Office of Open Records, 4 A.3d 803, 815 (Pa. Cmwlth. 2010). Brown notes that in
Department of Health, this court considered “strong public policy considerations” in
addressing the scope of section 708(b)(17) of the RTKL. Id. at 811. However, we
have not held that agencies must provide evidence of public policy considerations
when denying access to a record that is exempt under state or federal law. Here, the
letters that Brown requested were exempt from disclosure under section 708(b)(17) of
the RTKL, and the Department denied Brown’s request on that basis. Therefore, the
Department was not required to offer evidence that public policy favored denying
Brown’s request.


                Finally, Brown argues that the exception in section 708(b)(17)(vi)(A) of
the RTKL does not apply to the letters he requested because such letters are subject to
disclosure under section 907(a) of the MCARE Act.8 We disagree.


                “The RTKL distinguishes between the public nature of records and
access to records.” Department of Labor and Industry v. Heltzel, 90 A.3d 823, 831
(Pa. Cmwlth. 2014) (en banc). Section 306 of the RTKL provides that “[n]othing in
this act shall supersede or modify the public or nonpublic nature of a record or


       8
           Section 907(a) of the MCARE Act provides:

                All documents, materials or information utilized solely for an investigation
       undertaken by the State Board of Medicine or State Board of Osteopathic Medicine
       or concerning a complaint filed with the State Board of Medicine or State Board of
       Osteopathic Medicine shall be confidential and privileged. . . . This subsection shall
       not apply to letters to a licensee that disclose the final outcome of an investigation or
       to final adjudications or orders issued by the licensure board.

40 P.S. §1303.907(a).


                                                  7
document established in Federal or State law.” 65 P.S. §67.306. In Heltzel, 90 A.3d
at 831-32, this court held that:



                    [T]he “nature” of a document implicates the innate or
             intrinsic characteristics of a record, its essence, without
             regard to surrounding circumstances.

                   Once “established” by [another] statute as “public,” a
             record is no longer subjected to the traditional public record
             analysis under the RTKL.            Given this significant
             consequence, a statute should be clear when it establishes
             the public nature of records.



Section 3101.1 of the RTKL provides that a provision of the RTKL “regarding access
to records” will not apply where it conflicts with state or federal law. 65 P.S.
§67.3101.1. Section 701(a) of the RTKL states that “[u]nless otherwise provided by
law, a public record . . . shall be accessible . . . in accordance with [the RTKL].” 65
P.S. §67.701(a) (emphases added).




             Here, section 907(a) of the MCARE Act states that materials used solely
in State Board of Medicine or State Board of Osteopathic Medicine investigations are
“confidential and privileged.”     40 P.S. §1303.907(a).     It also provides that this
general rule “shall not apply to letters to a licensee that disclose the final outcome of
an investigation.” Id. Because records that are not privileged are explicitly included
in the definition of “public records” in section 102 of the RTKL, section 907(a) of the
MCARE Act establishes the public nature of the requested letters. However, the
MCARE Act does not state a means by which the public may access the requested
                                           8
letters. As we noted in Heltzel, the public nature of a record is distinct from public
access to that record. The RTKL’s access provisions, including its exceptions to
access, apply in the absence of a conflicting MCARE Act provision. Therefore, the
access exception in section 708(b)(17)(vi)(A) of the RTKL is applicable here.9



              Accordingly, we affirm.



                                           ___________________________________
                                           ROCHELLE S. FRIEDMAN, Senior Judge




       9
         Recently, we addressed the distinction between public nature and public access in McCord
v. Pennsylvanians for Union Reform, 100 A.3d 755 (Pa. Cmwlth. 2014). There, in ruling on
preliminary objections, we noted that a provision of The Administrative Code of 1929 “appeared”
to establish the public nature of a record exempted by section 708(b) of the RTKL. Id. at 762.
However, we stated that because the provision “does not address public access to the [record], it
may be found not to conflict with the RTKL’s access provisions and, therefore, the RTKL’s access
provisions, including its statutory exemptions, could apply.” Id.


                                               9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                        :
                                       : No. 2221 C.D. 2014
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Pennsylvania Department                :
of State,                              :
                                       :
                        Respondent     :



                                     ORDER


            AND NOW, this 2nd day of September, 2015, we hereby affirm the
November 7, 2014, final determination of the Office of Open Records.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge
