              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Sporish,                                  :
                              Appellant         :
                                                :
               v.                               :   No. 421 C.D. 2014
                                                :   Submitted: July 11, 2014
Springfield Township                            :


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
        HONORABLE MARY HANNAH LEAVITT, Judge
        HONORABLE P. KEVIN BROBSON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                    FILED: August 27, 2014

               In this matter arising under the Right to Know Law (RTKL),1
Appellant James Sporish (Sporish) appeals from an order of the Court of Common
Pleas of Delaware County (trial court). The trial court denied the appeal Sporish
filed after the Delaware County District Attorney’s Office failed to issue a final
determination within thirty days of Sporish’s challenge of the denial of his RTKL
request by the designated RTKL officer of Springfield Township (Township). We
now vacate the trial court’s order and remand the matter to the trial court.
               In a RTKL request dated March 6, 2013, and addressed to the
Township’s RTKL Officer, Sporish sought “[a]ny and all police incident reports on
Kristine Marie Gregg” further identifying her by her date of birth and social

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
security number. In that request Sporish asserted a right to the records based upon
his claim that incident reports are the equivalent of police blotter reports, which, he
contended, are subject to disclosure under the RTKL. On March 15, 2013, the
Township’s RTKL Officer responded to Sporish’s RTKL request, concluding that
the documents Sporish requested are “not considered Police Blotter issues.” The
RTKL Officer relied upon statutory exemptions relating to criminal and
noncriminal investigations, Sections 708(b)(16) and (17) of the RTKL, 65 P.S.
§ 67.708(b)(16) and (17), but did not explain the rationale underlying the
determination. The RTKL Officer also advised Sporish of his right to appeal the
determination with the appropriate entity identified for appeals under
Section 503(d) of the RTKL, 65 P.S. § 67.503(d).2
               On or about March 28, 2013, Sporish apparently filed an appeal with
the Delaware County District Attorney’s Office. In the appeal, Sporish asserted
that, in reviewing his appeal from the determination of the Township’s RTKL
Officer, the District Attorney’s Office (or rather, the appeals officer designated by
the District Attorney’s office) should consider that the Township failed to satisfy
its burden of proof regarding the alleged exempt status of the records sought.
Sporish asserted that the Township failed to demonstrate that the records are


       2
          On or about March 20, 2013, Sporish first filed an appeal with the Office of Open
Records (OOR). On or about March 24, 2013, Sporish filed a “supplemental appeal” with OOR.
On March 25, 2013, OOR dismissed the appeal, based on its determination that OOR lacked
jurisdiction over RTKL requests involving local agency criminal investigative records and that
the Delaware County District Attorney had jurisdiction over the appeal. Section 503(d)(2) of the
RTKL, provides that the “district attorney of a county shall designate one or more appeals
officers to hear appeals . . . relating to access to criminal investigative records in possession of a
local agency of that county.” Section 503(d)(2) of the RTKL also provides that the designated
appeals officer “shall determine if the record requested is a criminal investigative record.”



                                                  2
investigative rather than police blotters. Sporish challenged the apparent reliance
by the Township’s RTKL Officer on the caption of the records rather than the
content of the records in reaching what Sporish characterized as an essentially
conclusory determination. Sporish also included an attempt to clarify the records
he wanted: “[A] chronological listing of incident[s] involving Kristine Marie
Gregg, whether there was an arrest or not . . . .”
             Sporish relied upon the provisions of the Criminal History Records
Information Act, 18 Pa. C.S. §§ 9101-9183 (CHRIA), which defines the term
“police blotter” to encompass a chronological listing of arrests that may also
include the name and address of an individual charged with a criminal offense and
the specific offense charged, 18 Pa. C.S. § 9102, and makes police blotters public
records.    Sporish asserted that “this appeal office should grant [his] appeal and
order [the Township] to produce copies of chronological listing of incidents
involving Kristine Marie Gregg.” Sporish also noted that
             if this office finds it necessary to request additional
             information from [the Township], to prove by a
             preponderance of evidence, that the requested documents
             are investigative and not simply police blotter
             information, it should request them to provide evidence
             to each of the (14) reports so there is no confusion about
             whether or not they are disguising police blotter
             information under the title “incident reports” so they can
             deny access to public records.

(S.R.R. at 20b.)
             On or about May 6, 2013, Sporish filed with the trial court a “petition
for judicial review of a local agencies [sic] denial of petitioners [sic] right to know
request.” In his petition, Sporish averred that the District Attorney’s appeals
officer did not issue a final determination regarding his appeal. Sporish repeated
his contention that he was asking only for a chronological listing of incidents
                                           3
involving Kristine Marie Gregg, regardless of whether such incident or incidents
resulted in an arrest, and that the Township was in possession of fourteen “of these
incident[s].” (S.R.R. at 31b.) Sporish again relied upon CHRIA’s provisions
relating to police blotters, arguing that the trial court could not base a decision
merely upon the title attached to a record in reaching a determination as to whether
a record was an exempt criminal investigative record or simply a police blotter.
              In response, the Township denied Sporish’s averments.                The
Township asserted that the Township does not maintain a police blotter. The
Township also argued that the records Sporish sought constituted more than a
police blotter, and, therefore, the records constituted criminal investigative records,
which   are    not   public   records—i.e.,   not   subject   to   disclosure.     On
September 19, 2013, the Township submitted proposed findings of fact and
conclusions of law to the trial court, which included a conclusion of law asserting
that the incident reports contain more information than that contained in a police
blotter, and, thus, the incident reports were exempt from disclosure.
              The trial court did not conduct a hearing or in camera review of the
incident reports. Rather, the trial court adopted the proposed findings of fact and
conclusions of law the Township submitted, and it issued an order denying
Sporish’s RTKL request. Sporish appealed the trial court’s decision, and the trial
court issued an opinion in support of its order. In its opinion, the trial court simply
accepted the Township’s averments regarding the content of the incident reports,
specifically the averment that such reports consist of more than simply a
chronological listing of incidents—i.e., a police blotter. Based on that isolated
conclusion, the trial court determined that the incident reports were exempt from
disclosure under Section 708(b)(16) of the RTKL.


                                          4
               Sporish raises the following issues in his appeal to this Court:3
(1) whether the trial court abused its discretion by failing to conduct an in camera
review of the requested records before denying his request; (2) whether the trial
court erred in failing to consider a copy of an earlier letter Sporish received from
the Township, in which the Township indicated that it could provide him with the
fourteen incident reports if he paid a total of $280.00 for the reports; (3) whether
the Township bore the burden to prove by a preponderance of the evidence to the
trial court that each incident report was exempt under the RTKL, and the trial court
thereby abused its discretion or erred as a matter of law; and (4) whether the trial
court should have reviewed the requested incident reports and, if they did



       3
          As noted above, Section 503(d)(2) of the RTKL requires the district attorney’s office to
designate an appeals officer to hear appeals from a local agency’s denial of a RTKL request
relating to records that potentially constitute “criminal investigative” records. Thus, at least with
regard to local agency matters arising in potential criminal investigations, that designated appeals
officer acts in the capacity that an OOR appeals officers would typically act under the RTKL
with regard to other appeals from an agency’s open records officer’s determination. (We note
here that one could hypothesize a chicken and egg quandary, because an initial question could be
whether a requested record is a “criminal investigative” record, but the General Assembly
appears to have resolved the question by placing with the district attorney designated appeals
officer the task of resolving the question of whether any record may constitute a “criminal
investigative” record. Thus, it would appear that any police record that may relate to a possible
criminal investigation, even one that contains little criminal information, is subject to review by
the district attorney appointed appeals officer.) In contrast to situations where an OOR appeals
officer has jurisdiction to render a final determination, a requester seeking review of a final
determination by a designated appeals officer appointed by a district attorney’s office is entitled
to judicial review by the appropriate court of common pleas under Section 1302 of the RTKL,
65 P.S. § 67.1302. In such circumstances, the trial court, as here, is charged with the duty to
render its own findings of fact and conclusions of law, and this Court in addressing such an
appeal, exercises a standard of review limited to considering whether the trial court erred as a
matter of law or abused its discretion by rendering findings of fact that are not supported by
substantial evidence.



                                                 5
constitute records exempt from disclosure, order redaction of the records to remove
information from the records that is exempt.
            In Pennsylvania State Police v. Office of Open Records, 5 A.3d
473 (Pa. Cmwlth. 2010) (PSP), appeal denied, 76 A.3d 540 (Pa. 2013), we
reviewed the decision of an OOR appeals officer, who evaluated a request for
police “incident reports” and relied upon earlier decisions of this Court in
Commonwealth v. Mines, 680 A.2d 1227 (Pa. Cmwlth. 1996), appeal denied,
690 A.2d 238 (Pa. 1997), and Tapco, Inc. v. Township of Newville, 695 A.2d 460
(Pa. Cmwlth. 1997). The appeals officer construed the holdings in these two
decisions to mean that police blotters (which are considered public records and
subject to disclosure) were the equivalent of police “incident reports.” The appeals
officer in that case, without having or requesting the opportunity to examine the
reports for which the requester had sought disclosure, concluded that, based on
Mines and Tapco, the “incident reports” the requester sought were the equivalent
of police blotters, and, therefore, were public records subject to disclosure under
the RTKL.
            In PSP, we first entertained argument regarding the question of
whether the requested incident reports were public records like police blotters. The
record then before the Court only included the request, the response from PSP, and
affidavits regarding the nature of the incident reports. Following argument, we
directed PSP to submit the requested incident report for in camera review. Id. at
477. With the enhanced record, we analyzed the characteristics of the incident
reports and the affidavits PSP submitted in light of the statutory language
contained in the criminal investigation exception in Section 708(b)(16) of the




                                         6
RTKL. We held that neither Mines nor Tapco, supported the conclusion that an
incident report is necessarily the equivalent of a police blotter:
             [W]e cannot say that those incident reports [in Mines and
             Tapco] are the same as the PSP’s Incident Report in this
             case. This Court cannot make determinations about
             whether a given document is a public record merely
             based on the name or title of the document; we must
             consider, instead, the content and nature of the document.
             To do otherwise would elevate form over substance . . . .
             Having examined the Incident Report in this case, we are
             convinced the Incident Report is not a “chronological
             listing of arrests.” 18 Pa. C.S. § 9102. Rather, it is a
             description of an investigation by the PSP into a
             complaint of criminal activity. In addition, we note that a
             PSP incident report may be generated even in the absence
             of an arrest: the blank incident report form includes
             checkboxes indicating that an incident may be disposed
             of as “cleared by arrest,” “unfounded,” or “exceptionally
             cleared.” (PSP Incident Report form SP 7-0050 (4-2007),
             Requester’s Br. Ex. D.)

PSP, 5 A.3d at 482.
             In PSP, we noted that the incident reports at issue included notes of
interviews with alleged victims and witnesses and that the incident report form
contained “checkboxes regarding whether certain investigative tasks” had been
“carried out or whether certain information was discovered.” Id. at 479. We
commented that “[t]he above information was assembled as a result of an
investigation into a criminal incident or an allegation of criminal wrongdoing.
Therefore, the Incident Report is a report of criminal investigation.” Id. We noted
in a footnote that the copy of a blank incident report included questions such as
(1) whether a suspect could be named, (2) whether evidence at the scene could be
linked to an offender, (3) whether any latent prints were discovered, (4) whether
any witnesses were located, and (5) whether any unique method or pattern of

                                           7
commission was identified. Id. n.6. We concluded that “[w]hether these questions
are answered yes or no, such answers would disclose information assembled as a
result of an investigation into a criminal incident or an allegation of criminal
wrongdoing, and modus operandi information.” Id.
             Keeping in mind that a local agency bears the burden of proof to show
that records sought by a requester fall within an exemption under the RTKL,
Section 708(a) of the RTKL, 65 P.S. § 67.708(a), where factual issues exist
relating to the nature of the records requested, a trial court’s factual findings must
reflect some evidence submitted by the local agency in support of its position. In
this case, the record is devoid of evidence. Unlike the record this Court considered
in PSP, the record here indicates that the trial court did not conduct in camera
review and that the Township did not submit a copy of a blank incident report
form. Nor did the Township submit any affidavits, which this Court in Mitchell v.
Office of Open Records, 997 A.2d 1262 (Pa. Cmwlth. 2010), accepted as evidence
in support of OOR’s decision concluding that records were exempt under
Section 708(b)(16) of the RTKL. Here, the trial court simply accepted as fact the
Township’s legal position that the records Sporish requested constituted records
containing more than the information contained in a police blotter, and that,
therefore, the records must necessarily constitute criminal investigative reports
exempt under the RTKL.
             This reflects the primary fallacy of the Township’s and the trial
court’s reasoning. Although the RTKL specifically provides that police blotters
are public records, the reasoning relied upon here by the trial court makes the
unsupported leap that any records that contain more information than that
contained in a police blotter constitute criminal investigative reports. As in PSP,


                                          8
however, the trial court had no way to know exactly what information the incident
reports contain. They may very well contain criminal investigative information
like the incident reports in PSP, but there is simply no way to know whether that is
correct without having evidence on the content of the reports.4
               Based upon our review of the record, such as it is, we conclude that
the trial court’s factual findings are not supported by evidence of record. In turn,
there are insufficient findings to support the trial court’s legal conclusions.
Therefore, in following our actions in PSP, we must vacate the trial court’s order
and remand the matter to the trial court with the direction to open the record for
evidence, including, if necessary, in camera review of the requested incident
reports. Once the record is closed, the trial court must make new factual findings
regarding the nature of the incident reports and new conclusions of law.




                                     P. KEVIN BROBSON, Judge




       4
          We recognize that Sporish initially requested simply “all incident reports on Kristine
Marie Gregg,” and that Sporish, in his appeal following the initial denial by the Township’s
RTKL Officer, apparently modified his request. As we noted above, Sporish indicated that he
was seeking records that provide dates of alleged incidents relating to Ms. Gregg to which the
police responded, and any offenses charged or arrests made. Sporish attached to his
supplemental appeal originally filed with OOR a copy of “Incident Reports” pertaining to Ms.
Gregg. This copy lists in chronological fashion and paragraph format eleven incidents of
complaints pertaining to Ms. Gregg. It is not clear that these incident reports Sporish attached
are the same incident reports the Township claims are exempt. This is an issue for the trial court
to resolve.



                                                9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Sporish,                            :
                         Appellant        :
                                          :
            v.                            :   No. 421 C.D. 2014
                                          :
Springfield Township                      :



                                     ORDER


            AND NOW, this 27th day of August, 2014, the order of the trial court
is VACATED, and the matter is REMANDED to the trial court for additional
proceedings consistent with the accompanying opinion.
            Jurisdiction reqlinquished.




                               P. KEVIN BROBSON, Judge
