           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zachary N. Gordon, Esquire,                     :
                       Appellant                :
                                                :
                       v.                       :   No. 866 C.D. 2019
                                                :   SUBMITTED: May 11, 2020
Selinsgrove Borough                             :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                              FILED: June 4, 2020


                Zachary N. Gordon, Esquire (Requester), appeals from the order of the
Court of Common Pleas of the 17th Judicial District (Snyder County Branch)
denying the disclosure of some of the documents sought from the Borough of
Selinsgrove under a Right-to-Know Law1 (RTKL) request. Requester also appeals
from the trial court’s failure to consider his request for attorney’s fees. We vacate
the trial court’s order and remand this matter for further action.
                On August 24, 2018, Requester filed a RTKL request with the Borough
seeking the release of the following categories of documents (Items 1 through 7):

                1.     For the time period of May 1, 2018 through the date
                of this request provide all emails or other communications
                sent or received by any Selinsgrove Borough Employee,
                including Borough Police Officers, where Pattie
                Schreffler or Todd Schreffler are the sender or receiver of
                the email or other communications.

    1
        Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
               2.     For the time period of May 1, 2018 through the date
               of this request provide all emails or other communications
               sent or received by any Selinsgrove Borough employee,
               including Borough Police Officers, where Bo Trawitz is
               the sender or receiver of the email or other
               communication.

               3.    All communications, emails, correspondence, or
               other records during the time period of May 1, 2018
               through the date of this request that refers [sic] to Vincent
               B. Stoops whether sent or received by any Selinsgrove
               Borough Employee, including Borough Police Officers.

               4.     A copy of all time response logs related to every 911
               call involving Vincent B. Stoops during the period of May
               1, 2018 through the date of this request.

               5.    A copy of all policies and/or procedures the
               Selinsgrove Borough Police Department use [sic] to
               determine whether to press charges against an individual.

               6.     All emails sent or received by Officer Francis W.
               Petrovich during the time period of May 1, 2018 through
               the date of this request.

               7.     All logs, records, or other documentation related to
               citation number R 2233638-1.
(Reproduced Record “R.R.” at 42a-43a.)

               On August 31, 2018, the Borough denied the RTKL request in full.
Items 1 through 4, 6, and 7 were denied as exempt under Section 708(b)(16)2 of the


   2
       Section 708(b)(16) of the RTKL provides in relevant part as follows:

               (b) Exceptions.--Except as provided in subsections (c) and (d), the
               following are exempt from access by a requester under this act:

               ....




                                                2
RTKL as relating to or resulting in a criminal investigation. (R.R. at 45a.) Item 5
was denied under Section 7053 of the RTKL as not in the possession, custody, or
control of the Borough. (Id.)



                (16) A record of an agency relating to or resulting in a criminal
                investigation, including:
                    (i) Complaints of potential criminal conduct other than a private
                criminal complaint.
                    (ii) Investigative materials, notes, correspondence, videos and
                reports.
                    (iii) A record that includes the identity of a confidential source
                or the identity of a suspect who has not been charged with an offense
                to whom confidentiality has been promised.
                    (iv) A record that includes information made confidential by law
                or court order.
                    (v) Victim information, including any information that would
                jeopardize the safety of the victim.
                    (vi) A record that, if disclosed, would do any of the following:
                         (A)     Reveal the institution, progress or result of a criminal
                    investigation, except the filing of criminal charges.
                         (B)     Deprive a person of the right to a fair trial or an
                    impartial adjudication.
                         (C)     Impair the ability to locate a defendant or
                    codefendant.
                         (D)     Hinder an agency's ability to secure an arrest,
                    prosecution or conviction.
                         (E)     Endanger the life or physical safety of an individual.

65 P.S. § 67.708(b)(16).

    3
        Section 705 of the RTKL provides as follows:

                When responding to a request for access, an agency shall not be
                required to create a record which does not currently exist or to
                compile, maintain, format or organize a record in a manner in which
                the agency does not currently compile, maintain, format or organize
                the record.

65 P.S. § 67.705.


                                                   3
             Requester appealed the denial to the Snyder County Office of District
Attorney (District Attorney), which on October 10, 2018, issued a determination
denying the request in full on largely the same grounds as the Borough, although
Item 4 was denied under Section 705 of the RTKL rather than Section 708(b)(16).
(R.R. at 47a-49a.) Attached to the District Attorney’s denial was an attestation from
the Borough’s open records officer stating that the records requested were either
exempt or not in the Borough’s possession, consistent with the District Attorney’s
determination. (R.R. at 50a.)
             Requester filed a timely petition for review of the District Attorney’s
determination with the trial court. In his petition, Requester asked that the trial court
(1) find that the District Attorney erred by denying Requester’s appeal of the
Borough's decision and requested an order directing the Borough to provide
responsive records to the RTKL request or, in the alternative, provide a privilege
log; (2) find that the District Attorney erred by stating that the appeal of his decision
should be filed with the Commonwealth Court; (3) find the District Attorney erred
by holding ex parte interviews; (4) find the District Attorney erred by reviewing and
relying upon facts not submitted by the parties; and (5) grant other relief deemed
appropriate by the trial court. Requester did not further pursue Items 4 and 5 of the
RTKL request in his petition. The Borough filed an answer requesting that the
petition be denied and the District Attorney’s decision be affirmed.
             Upon Requester’s motion, the trial court scheduled a pre-trial
conference for February 13, 2019. Shortly after the conference, on February 15,
2019, the trial court entered an order directing the Borough to prepare a privilege log
within twenty days. The trial court ordered that the privilege log be sealed and that
the Borough indicate which information was to be provided. Counsel agreed to the



                                           4
entry of this order and no issues were raised following the order’s issuance. (Trial
Court Op., Sept. 13, 2019, at 2.)
               The Borough filed privilege logs on March 7, 2019, consisting of 364
documents. These documents are divided between two privilege logs, but one
privilege log is separated into two sets of separately numbered documents addressing
differing Items in the RTKL request. First is the privilege log of Selinsgrove
Borough (Borough Privilege Log), with documents numbered 1 through 19 (R.R. at
170a-73a). The privilege log of the Selinsgrove Borough Police Department (Police
Department Privilege Log), as stated, is separated into two parts. The first part of
the Police Department Privilege Log deals with emails numbered 1 through 20 and
addresses Items 1 through 3 of the request. (R.R. at 174a-80a.) The second part of
the Police Department Privilege Log deals with emails numbered 1 through 305 and
addresses Item 6 of the request. (R.R. at 181a-200a.) The Police Department
responded to Item 7 by producing the investigation report in total, and Requester
stated that nothing further was needed. (R.R. at 201a-18a, 234a.)
               In addition to the grounds raised previously, the Borough raised
exemptions under RTKL Section 708(b)(2), (4), (5), (8), and (17),4 65 P.S. §
67.708(b)(2), (4), (5), (8), and (17). (R.R. at 171a -200a). Requester filed a response
to the privilege logs’ filing agreeing to forego the record asserted to be exempt under
Section 708(b)(5) of the RTKL, and asking the trial court to order disclosure of the
other records and to award counsel fees to Requester. On April 29, 2019, the trial

    4
      Briefly stated as they pertain to this case, Section 708(b) provides for exemptions relating
to: paragraph (2), law enforcement records that if disclosed would be reasonably likely to threaten
public safety; paragraph (4), computer records reasonably likely to jeopardize public safety;
paragraph (5), medical records of individuals; paragraph (8), labor relations, collective bargaining,
and arbitration records; and paragraph (17), records relating to a noncriminal investigation. 65
P.S. § 67.708(b)(2), (4), (5), (8), and (17).



                                                 5
court entered an order scheduling a hearing on Requester’s response, allotting one
and one-half hours on May 31, 2019. On May 20, 2019, the Borough filed affidavits
of the Borough police chief and manager as well as an answer opposing Requester’s
response to the privilege logs.
               The time allotted for the May 31, 2019 hearing proved insufficient and
testimony was not concluded. Thus, the trial court entered an order scheduling a
further hearing for September 25, 2019. On June 14, 2019, Requester filed a motion
for expedited hearing.
               Subsequent to Requester’s motion for an expedited hearing, the trial
court undertook an in camera review of all documents at issue and, as a result of that
review, entered an order on June 27, 2019, regarding the disclosure or non-disclosure
of all records at issue.5 The trial court found with respect to Items 1 through 3 and
6 of the request that the Borough must release certain items. (Trial Court Order,
June 27, 2019, ¶¶ 1, 6.) The trial court found that several records need not be
released because they post-dated the request (id. ¶ 2); that other records did not need
to be disclosed because they “only contain information directly related to” secure
criminal justice information networks (id. ¶ 3); that other records did not need to be
released pursuant to Items 1 through 3 because the request for these items was
withdrawn by Requester (id. ¶ 4); that other records in Items 1 through 3 did not
need to be released because they were exempt from public access for reasons of

    5
      The trial court explained its decision to review the documents in camera as follows. In
reviewing Requester’s motion for expedited hearing, the trial court noted that a substantial amount
of time had passed since Requester’s filing of the petition for review and his initial request to the
Borough, and agreed that expedited relief was appropriate. Due to the trial court’s calendar and
the fact that Snyder County had only a single judge assigned to handle all cases, the trial court
determined that an in camera review of all documents was the most expeditious way to resolve the
issues. This was discussed during the pre-trial conference as one of the options the trial court was
considering. (Trial Court Op. at 4 n.2.)


                                                 6
privilege cited by Borough (id. ¶ 5); that other documents need not be released
because they contain personal passwords or login information only (id. ¶ 7); and that
the remaining documents “are excluded as exempt for the reasons cited by the
[Borough]” (id. ¶ 8). Concurrently with its order disposing of the substance of the
request, the trial court denied Requester’s motion for an expedited hearing and
shortly thereafter cancelled the September 25, 2019, hearing.6
              Thereafter, Requester appealed and filed his concise statement of errors
complained of on appeal, in which he listed six issues: (1) whether the trial court
erred when it allowed the Borough to rely on certain exemptions first raised in its
privilege logs and not before; (2) whether the trial court erred in finding that the
Borough met its burden of proof to deny access to specific records in the privilege
logs; (3) whether the trial court erred by failing to find that the District Attorney
erred by holding ex parte interviews with the Borough’s open records officer and
the Borough's police chief and by reviewing and relying upon facts not submitted by
either party as a means for denying Requester’s appeal; (4) whether the trial court
erred when it entered its April 29, 2019, order allowing the Borough additional time
to submit evidence in support of denying the request; (5) whether the trial court erred
when it denied Requester’s request for counsel fees; and (6) whether the trial court
erred when it entered its June 27, 2019, order denying Requester’s request to
supplement his counsel fee claim.




    6
      The trial court stated in its opinion disposing of Requester’s concise statement of errors
complained of on appeal that it erred in cancelling the September 25, 2019, hearing as it had not
addressed Requester's request for counsel fees. The trial court noted that no one objected to the
cancelling of the hearing without resolution of the counsel fees issue.


                                               7
              On appeal, Requester raises the identical issues raised in his concise
statement of errors complained of on appeal, arguing that the trial court erred with
regard to each.
Timeliness of Exemptions
              Requester argues that the Borough should not have been permitted to
raise new exemptions before the trial court, arguing that the Borough should have
raised all exemptions and challenges during the administrative appeal (before review
by the trial court), and, in any event, earlier than it actually did. (Requester’s Br. at
15-16.) With regard to the first issue, the trial court acknowledged that “[w]hile
procedurally, [Requester] may be correct that the Borough should have raised these
exceptions earlier in these proceedings,” the trial court stated that it would not
release personal information that would violate an individual’s privacy rights or
records that would compromise the security of secure databases related to law
enforcement which are otherwise protected. (Trial Court Op. at 6.)
              It should be noted at this point in the Court’s analysis that Requester
himself sought in the alternative that the trial court compel the Borough to submit a
privilege log for Items 1 through 3 and 6 and 7. (Requester’s Petition for Review,
¶¶ 46, 55, 63, 73, and 82, and prayer for relief ¶ 1; R.R. at 7a-53a.) Furthermore,
Requester did not object to the Borough’s filing of the privilege logs in his response
to them. (R.R. at 202a-42a.)
              In any event, the trial court’s scope of review, sitting as a Chapter 13
court,7 is as the ultimate finder of fact able to conduct full de novo review of appeals

    7
      This Court and the courts of common pleas are sometimes collectively referred to as the
“Chapter 13 courts,” in reference to the chapter of the RTKL in which their relevant duties are
discussed. Bowling v. Office of Open Records, 75 A.3d 453, 458 (Pa. 2013); Sections 1301 and
1302 of the RTKL, 65 P.S. §§ 67.1301 – 1302.



                                              8
from decisions made by RTKL appeals officers.8 Bowling v. Office of Open Records,
75 A.3d 453, 474 (Pa. 2013). Indeed, because the Chapter 13 courts serve as fact-
finders, it follows that these courts must be able to expand the record. Id.
               Requester cites Levy v. Senate of Pennsylvania, 94 A.3d 436 (Pa.
Cmwlth. 2014), for the proposition that exemptions and challenges must be raised at
the appeals officer stage. However, Levy does not stand for this—rather, it requires
all challenges must be raised before the fact-finder closes the record. In the
“ordinary course of RTKL proceedings, this will occur at the appeals officer stage,
and a reviewing court will defer to the findings of the appeals officer.” Id. at 442
(citing Bowling, 75 A.3d at 473-74). Where the reviewing court must act as the fact-
finder, an agency must raise all its challenges before the close of evidence before the
court. Id.9 As noted by our Supreme Court in Bowling, the limitations of the process


    8
       The procedure used in this case differs from that in Bowling in that that case involved an
appeal to the Office of Open Records under Section 503(a) of the RTKL, 65 P.S. § 67.503(a), for
local agency records being appealed to a trial court. However, the RTKL provides that requests
for criminal investigative records must be reviewed by an appeals officer designated by the district
attorney. See Section 503(d)(2) of the RTKL, 65 P.S. § 67.503(d)(2).

    9
      Requester contends that such leeway is only available in “rare, extraordinary cases” in which
the initial reviewing court must act as fact-finder. Levy, 94 A.3d at 442. While this case is fairly
unusual among the RTKL cases reviewed by this Court in that the District Attorney functioned as
the hearing officer instead of the Office of Open Records due to the relation of the requested
records to a criminal investigation, we also note that the Supreme Court has stated as follows:

               [T]he General Assembly created, within the [Office of Open
               Records] and other agencies, a subset of public servants—the
               appeals officers—who decide appeals from denials of or restrictions
               on records requests initially made by the agencies in whose custody
               the records reside. All appeals officers are directed by the RTKL to
               make their decisions in an expedited fashion, and they are given
               considerable discretion to achieve this goal. However, the RTKL
               does not require that the appeals officers conduct their



                                                 9
afforded by the RTKL at the appeals officer level, including the ability to consult
only with the counsel for the agency subject to the request but not the requester,
necessitates such a process. Bowling, 75 A.3d at 470-474. The Chapter 13 courts
have the authority to expand the record to fulfill their statutory role and are entitled
to the broadest scope of review. See id. at 476.
              In another case cited by Requester, Mission Pennsylvania, LLC v.
McKelvey, 212 A.3d 119 (Pa. Cmwlth. 2019), appeals granted in part, McKelvey v.
Pennsylvania Department of Health (Pa., Nos. 393, 394, 396 MAL 2019, filed
January 28, 2020), this Court refused to allow the introduction of additional evidence
due to the extensive process afforded to the parties at the appeals officer level by the
Office of Open Records. Id. at 130. Inasmuch as such a process was not followed
by the District Attorney, we find that the trial court did not err in permitting the
submission of the privilege logs which asserted additional defenses prior to the close
of its record in this case.
Denial of Access to Specific Records
              Requester next argues that the trial court erred in finding that the
Borough met its burden of proof to deny access to specific records in the privilege
logs. Here, we note that the trial court, although exercising its authority to conduct
an in camera review of the requested documents, see Pennsylvania State Police v.

              determinations in a manner comporting with the process provided
              under Title 2 [of the Pennsylvania Consolidated Statutes, i.e., the
              Administrative Agency Law, 2 Pa.C.S. §§501-508, 701-704]. The
              more streamlined process before appeals officers under the RTKL
              is apparently designed to dispose of most disputes in an efficient and
              timely fashion, with the probable contemplation that most disputes
              will end at the level of the decision of the appeals officer.

Bowling, 75 A.3d at 474 (emphasis added).



                                               10
Office of Open Records, 5 A.3d 473, 477 (Pa. Cmwlth. 2010), did not fully meet the
requirement under Section 1302(a) of the RTKL, 65 P.S. § 67.1302(a), to render a
decision containing findings of fact and conclusions of law, and a clear, concise
explanation for the rationale of the decision.
                As pointed out by Requester, the trial court’s opinion and order do not
describe which of the two privilege logs produced by the Borough and the Police
Department, containing between them three separately numbered sets of documents,
that the trial court was referring to when announcing its decision. In other words, it
is not always clear to which document the trial court is referring. While this Court
could surmise what the trial court meant, we believe that it is appropriate for the trial
court, as fact-finder, to clarify which document is being denied and the reasoning for
the denial.
                Further, the decision of the trial court denying access to some of the
documents requested, as embodied in the June 27, 2019 order and later opinion
addressing the concise statement of errors complained of on appeal, is bereft of
findings of fact and contains conclusory or unclear statements as to which documents
fit within the exemptions claimed. Notably, the trial court declined to address its
reasons for denying access to various documents with the statement that “[t]he [trial]
[c]ourt will not address each individual document as the documents speak for
themselves.” (Trial Court Op. at 6.) Although we might ourselves undertake a
review of the documents on the record presented (with, as the trial court puts it, the
documents “speak[ing] for themselves”), we believe that this matter is best
remanded to the trial court for clarification so as to enable further appellate review,
if necessary.




                                           11
Conduct of the District Attorney as Appeals Officer
               Requester contends that the trial court erred by failing to find that the
District Attorney improperly held ex parte interviews with the Borough’s open
records officer and the police chief and by reviewing and relying upon facts not
submitted by either party as a means for denying Requester’s appeal. With respect
to the third issue, the trial court stated that it erred in not addressing whether the
District Attorney acted inappropriately as appeals officer and suggested remand to
address the issue.
               In support of his argument, Requester generally cites Section
1102(b)(3) of the RTKL, 65 P.S. § 67.1102(b)(3): “In the absence of a regulation,
policy or procedure governing appeals under this chapter, the appeals officer shall
rule on procedural matters on the basis of justice, fairness and the expeditious
resolution of the dispute.” However, as the RTKL requires no hearing or other
adversarial process before the appeals officer,10 and none was held by the District
Attorney, there were no procedural matters requiring consultation with Requester or
preventing the District Attorney from relying upon facts not formally submitted. At
all events, since the trial court heard the matter de novo, any procedural irregularities
involving the District Attorney’s review would be of no moment.
Requester’s Demand for Counsel Fees
               Requester argues that it was entitled to counsel fees because the
Borough acted in bad faith and made unreasonable interpretations of law in support


    10
       Neither the RTKL nor the courts have extended a right to discovery or a right to due process
to a requesting party in a RTKL action. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 519 (Pa.
Cmwlth. 2011).



                                                12
of denying the request. The trial court acknowledged that it was error for it not to
address this issue and suggested that the matter be remanded for it to do so. We
agree. Since we are remanding for further action by the trial court regarding the
merits of its decision, the issue of counsel fees can be addressed on remand.
Conclusion
             We remand this matter to the trial court to identify its ruling as to each
document requested and provide a clear, concise explanation for the rationale of the
decision as to each category of documents, as well as to address Requester’s demand
for counsel fees. Further, while we are mindful that the trial court has one judge
assigned to Snyder County who is presumably quite busy, we are also cognizant of
the time that has passed between Requester’s request of the Borough and this
opinion. Thus, we direct the trial court to issue a decision disposing of this matter
within seventy-five days after remand of the record to the court of common pleas.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zachary N. Gordon, Esquire,                 :
                       Appellant            :
                                            :
                   v.                       :   No. 866 C.D. 2019
                                            :
Selinsgrove Borough                         :



                                    ORDER

            AND NOW, this 4th day of June, 2020, the June 27, 2019, order of the
Court of Common Pleas of the 17th Judicial District (Snyder County Branch) is
VACATED and the matter is REMANDED with instructions for the trial court to
issue a decision in accordance with the foregoing opinion within seventy-five days
after remand of the record to the court of common pleas.
            Jurisdiction is relinquished.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
