           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police,                      :
                         Petitioner             :
                                                :
                v.                              :    No. 321 C.D. 2016
                                                :    Argued: October 17, 2016
Jaegeun Kim,                                    :
                               Respondent       :


BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge


OPINION
BY JUDGE SIMPSON                                FILED: November 17, 2016

                The Pennsylvania State Police (PSP) petitions for review from the
Office of Open Records’ (OOR) final determination that granted the appeal filed by
counsel for Jaegeun Kim (Requester), directing disclosure of a surveillance video
sought under the Right-to-Know Law (RTKL).1 PSP argues OOR erred in relying
on Pennsylvania State Police v. Grove, 119 A.3d 1102 (Pa. Cmwlth. 2015), appeal
granted, 133 A.3d 292 (Pa. 2016) (Grove), which involved a materially different
record created by PSP.2 PSP contends a surveillance video obtained from a private
party to investigate a crime is exempt from disclosure under the Criminal History
Record Information Act, 18 Pa. C.S. §§9102-9106, (CHRIA), and the criminal



       1
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
       2
        This Court also addressed the investigative content of mobile video recordings (MVRs)
in Pennsylvania State Police v. Grove (Pa. Cmwlth., No. 1646 C.D. 2014, filed September 28,
2015) (unreported), 2015 WL 5670686.
investigative exception in Section 708(b)(16) of the RTKL, 65 P.S. §67.708(b)(16).
Upon review, we reverse.


                                          I. Background
               Requester3 sought a copy of the “police report [and] file regarding
incident number N06-1293586 regarding the 2 vehicle accident of October 3, 2015
opposite Mt. Airy Casino Resort, specifically including but not limited to a copy of
the surveillance footage that was seized and entered into evidence at the PSP-
Swiftwater under Property Record N06-12064.” Reproduced Record (R.R.) at 1a
(Request). PSP denied access to the crash report and the surveillance video (Video),
but granted access to a two-page Public Information Release Report (PIRR).
Relevant here, PSP asserted responsive records were protected by CHRIA and the
criminal investigative exception in Section 708(b)(16) of the RTKL. In support,
PSP included a verification of its open records officer.


               Requester appealed to OOR only as to PSP’s denial of the Video. He
argued Mt. Airy Casino Resort made the Video as part of its routine monitoring,
and not for the purpose of investigating criminal activity.                       In rebuttal, PSP
submitted a position statement and an affidavit explaining the investigation
resulted in a citation for violating Section 3323 of the Vehicle Code, 75 Pa. C.S.
§3323 (Affidavit). PSP also explained the Video was not similar to the dashboard
cameras, “dash-cams,” also known as MVRs, at issue in Grove.



       3
          Curtis Gilfillan, Esq. submitted the request on behalf of his client, Requester, identified as
the party in interest. See Certified Record, Item No. 1 (Cover letter to Request).



                                                   2
              Based on the documentary evidence, OOR issued a final determination
granting access to the Video. Gilfillan v. Pa. State Police, OOR Dkt. No. AP 2015-
2766 (filed February 3, 2016) (Final Determination). It reasoned PSP’s evidence
did not contain sufficient detail regarding the contents of the Video as required by
Grove. OOR recognized, “[u]nlike the decision in Grove, the [Video] was not
created by the PSP; instead the PSP would not be in possession of the [Video] if
not for an investigation into the vehicle accident.” Final Determination at 6.
Nonetheless, OOR held the Video was sufficiently similar to the dashboard
cameras in Grove so as to render that holding applicable. Determining the Video
was not “inherently investigatory in nature,” OOR ordered its disclosure. Id. at 7.


              PSP filed a petition for review to this Court.


                                       II. Discussion
              On appeal,4 PSP argues it proved by a preponderance of the evidence
that the Video related to a criminal investigation, and was investigative information
under CHRIA; thus, it was exempt. PSP assigns error in applying Grove to this type
of record because that case was limited to records created by PSP that show officers’
performance of their duties. By contrast, PSP did not create the Video; rather, it was
created by a third party. The Video only came into PSP’s possession by virtue of
PSP’s investigation into a criminal incident.




       4
         In a RTKL appeal involving a Commonwealth agency, this Court has the discretion to
rely upon the record created below or to create its own. Dep’t of Labor & Indus. v. Heltzel, 90
A.3d 823 (Pa. Cmwlth. 2014) (en banc).



                                              3
              Requester counters that Grove applies. As a result, PSP needed to
substantiate that the contents of the Video constitute investigative information, and
how the depiction of a motor vehicle accident is investigative in nature. He asserts
PSP’s evidence did not meet the test stated in Grove, so PSP did not meet its burden.


              Under the RTKL, records in possession of an agency are presumed
public unless they are: (1) exempt under Section 708 of the RTKL; (2) protected
by privilege; or, (3) exempt “under any other Federal or State law or regulation or
judicial order or decree.”       Section 305 of the RTKL, 65 P.S. §67.305.                A
Commonwealth agency like PSP bears the burden of proving a record is exempt.
The agency bears the burden of substantiating its denial on appeal to OOR by a
preponderance of the evidence.5 Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069
(Pa. Cmwlth. 2013).


              PSP asserted two exemptions applied here, CHRIA and the criminal
investigative exception in Section 708(b)(16) of the RTKL. Section 708(b)(16)
protects “a record of an agency relating to or resulting in a criminal investigation,
including … (ii) investigative materials, notes, correspondence, videos and reports.”
65 P.S. §67.708(b)(16) (emphasis added); see Mitchell v. Office of Open Records,
997 A.2d 1262 (Pa. Cmwlth. 2010) (PSP affidavit substantiated exception).


              Generally, CHRIA concerns collection, maintenance, dissemination,
disclosure and receipt of criminal history record information. CHRIA prohibits
       5
         A preponderance of the evidence under the RTKL is “tantamount to ‘a more likely than
not inquiry.’” W. Chester Univ. v. Schackner, 124 A.3d 382, 393 (Pa. Cmwlth. 2015) (citation
omitted).



                                             4
PSP from disseminating “investigative information” to any persons or entities,
other than criminal justice agents and agencies. 18 Pa. C.S. §9106(c)(4). CHRIA
defines “investigative information” as “[i]nformation assembled as a result of the
performance of any inquiry, formal or informal, into a criminal incident or an
allegation of criminal wrongdoing ....” 18 Pa. C.S. §9102 (emphasis added).


            In support of its exemptions, PSP submitted documentary evidence
including the PIRR and the Affidavit. The Affidavit described the Video, stating
“the [Video] seized and entered into evidence … [was a] record related to a
criminal investigation … [and] was used during the investigation to determine
what happened. … [From the Video] it was determined that Unit 1 had driven from
a Mount Airy Casino parking lot directly through a posted stop sign and into traffic
on Woodland Road.” R.R. at 23a (Affidavit at ¶¶13, 14). “In addition … the
[Video] is exempt from disclosure pursuant to [CHRIA].” Id. at ¶16. The PIRR,
which identifies Requester as an injured passenger, also states PSP’s investigation
included video surveillance.


            Because OOR relied on Grove in directing disclosure, its applicability
is central to our analysis. In Grove, we held records connected to a criminal
proceeding are “not automatically exempt” as investigative records. Id. at 1108.
There, PSP appealed OOR’s final determination that ordered it to disclose MVRs to
a requester. The MVRs recorded a two-vehicle accident. PSP argued the MVRs
were protected under Section 708(b)(16) of the RTKL and CHRIA. This Court
assessed the type of records at issue, (MVRs) and the purpose of the video
recordings. In so doing, we recognized:



                                          5
              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. … PSP uses MVRs to document the entire
              interaction and actions of the trooper, including actions which
              have no investigative content, such as directions to motorists
              in a traffic stop or at an accident scene, police pursuits, and
              prisoner transports.

Id. at 1108 (emphasis added). Based on the type of record, this Court concluded
“MVRs themselves are therefore not … investigative information, or records
relating or resulting in a criminal investigation exempt from disclosure under …
CHRIA.” Id. PSP was not entitled to withhold the MVRs in their entirety when
only those parts of the MVRs that were “investigative,” such as portions disclosing
the contents of witness interviews or showing evidence collection, qualified for
protection.


              OOR reasoned, and Requester argues, that our rationale in Grove
applies equally to the Video here. We disagree.


              Our reasoning in Grove applies to recordings by PSP that capture its
interaction with the public and actions of its officers. Specifically, in Grove we
framed the issue before us as follows: “The primary issue presented by this appeal
is whether such video recordings of interaction between law enforcement officers
and members of the public in a public place are exempt from disclosure as criminal
investigative records under the [RTKL] and [CHRIA].” Id. at 1104 (emphasis
added). The MVRs or “dash-cams” or “body-cams” that capture PSP’s activities
and transactions on a daily basis contain non-investigative content relative to PSP’s



                                          6
performance of its agency functions. Further, there is an interest in their disclosure
as records “of” PSP showing PSP’s activities and transactions. That is not the case
for the Video.


               In contrast to the records at issue in Grove, the Video was generated
by a private party that is not subject to the RTKL. There is no dispute that the
Video was recorded at Mt. Airy Casino, and PSP did not create the video or its
contents attendant to performing its duties. There is no evidence suggesting the
Video shows PSP officers performing their duties or interacting with the public.
The Video only became a record “of” PSP, and so accessible through the RTKL,
when PSP obtained it from a private party to investigate a criminal offense.6


               The character of the Video, including its genesis, and its purpose, is
quite different from the MVRs in Grove. Although the appeals officer in OOR
recognized the distinction in the source of the Video from the recordings in Grove,
the Final Determination did not address it. Instead, OOR reasoned the content of
the Video dictated whether it qualified for protection under Section 708(b)(16) or
CHRIA. Following Grove, OOR reasoned that only those parts of the Video that
furthered an investigation of a criminal incident and revealed activities undertaken
as part of an investigation, such as witness interviews, evidence collection, and
physical inspection, were investigative in nature and enjoyed protection.

       6
         As such, the Video is similar to the record underlying OOR’s action to enforce an in
camera order directing review of a Mt. Airy Casino video depicting a criminal trespass incident.
Office of Open Records v. Pa. State Police, __ A.3d __ (Pa. Cmwlth., No. 370 M.D. 2016, filed
August 8, 2016) (single j. op.). There, as the request (including the police incident report), on its
face, showed the video related to a crime, and PSP gathered it to investigate the crime, the Court
reasoned Grove did not apply.



                                                 7
             Essentially, OOR expanded Grove beyond records documenting PSP’s
routine activities, to records PSP gathers from outside sources when investigating a
potential crime. In so doing, OOR disregarded that “as documentation of law
enforcement officers’ conduct in carrying out their duties, MVRs are records at the
core to the RTKL’s purpose of enabling the public to ‘scrutinize the actions of
public officials, and make public officials accountable for their actions.’” Id. at
1108-09 (citation omitted). Thus, the record’s purpose was integral to the holding.
By construing Grove as creating an “investigative in nature” test for allegedly
criminal investigative records, despite their purpose, OOR erred.


             Although the rationale in Grove does not apply to the Video, we
undertake the same steps in analyzing whether the asserted exemptions apply based
on the evidence PSP submitted regarding the nature of the record.


             Here, PSP submitted the PIRR and Affidavit to show the source of the
Video, and that it was seized to investigate whether a criminal offense occurred.
That suffices to show that the record “related to” a criminal investigation. PSP was
not required to describe the contents or how the Video’s depiction of a motor
vehicle accident was “investigative in nature.” The language of the exception
requires that the record “relate to” a criminal investigation.


             In extending Grove to encompass records created by and seized from
private parties attendant to a criminal investigation, OOR disregarded the confines
of the RTKL. It bears emphasis that only records “of” an agency are subject to
disclosure. “Record” is defined as “[i]nformation … that documents a transaction



                                           8
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.” Section 102
of the RTKL, 65 P.S. §67.102. Here, unlike the MVRs, the Video itself does not
document any transaction or activity of PSP. The Video did not become a record
accessible from PSP until PSP undertook a criminal investigation of the crash.
Thus, the Video related to PSP’s criminal investigation.


             PSP’s acquisition of the Video also pertains to whether CHRIA applies.
CHRIA protects “investigative information” “assembled as a result of the
performance of any inquiry, formal or informal, into a criminal incident …” from
disclosure. 18 Pa. C.S. §9102 (emphasis added).


             In construing the terms in a statute, we consider their plain meaning.
1 Pa. C.S. §1903. The operative word in the above definition is “assembled.”
“Dictionaries provide substantial evidence of a term’s ordinary usage.” Dep’t of
Health v. Office of Open Records, 4 A.3d 803, 810 (Pa. Cmwlth. 2010).
“Assemble,” used as a verb, means to “bring or gather together into a group or
whole.” AM. HERITAGE DICTIONARY 134 (2nd Coll. ed. 1985).


             There is no dispute that PSP gathered the Video when assembling its
criminal investigation. The PIRR and the Affidavit support the material facts that
PSP seized the Video as part of an inquiry into a criminal incident. Therefore, the
Video is also exempt under CHRIA as investigative information.




                                         9
                                III. Conclusion
            PSP met its burden that the Video relates to a criminal investigation,
and that it was assembled in conducting a criminal investigation. Therefore, the
Video is exempt under both Section 708(b)(16) of the RTKL and CHRIA.
Accordingly, we reverse OOR’s Final Determination.




                                     ROBERT SIMPSON, Judge




                                       10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police,              :
                         Petitioner     :
                                        :
            v.                          :   No. 321 C.D. 2016
                                        :
Jaegeun Kim,                            :
                         Respondent     :


                                      ORDER

            AND NOW, this 17th day of November, 2016, the final determination
issued by the Office of Open Records is REVERSED.




                                       ROBERT SIMPSON, Judge
