          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William J. Cluck, Esquire,                      :
                         Petitioner             :
                                                :
               v.                               :   No. 1683 C.D. 2018
                                                :   Argued: September 17, 2019
Department of Conservation                      :
and Natural Resources,                          :
                        Respondent              :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: October 24, 2019


               William J. Cluck, Esquire (Petitioner), petitions for review of the
November 26, 2018 final determination (Final Determination) of the Pennsylvania
Office of Open Records (OOR) under the Right-to-Know Law (RTKL).1 The OOR
denied Petitioner’s appeal because the requested documents were protected by a
federal court order (Order) and, thus, were exempt from public access under the
RTKL. On appeal, Petitioner asks this Court to conduct an in camera review of the
Order, require the Department of Conservation and Natural Resources (DCNR) to
prepare an exemption log detailing the Federal Bureau of Investigation’s (FBI)
excavation in the Dent’s Run area of Pennsylvania state forest property in Elk

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
County, Pennsylvania, and provide the docket number for the Order. Having
conducted an in camera review, we reverse OOR’s Final Determination.
             Petitioner, a Pennsylvania licensed attorney, represents Finders
Keepers LLC (Finders), a treasure hunting company. (Reproduced Record (R.R.) at
R.16.) As part of Petitioner’s appeal to OOR, Petitioner asserted the following
background information. Finders met with the FBI and an Assistant United States
Attorney on January 26, 2018, to discuss “an alleged Civil War-era cache of gold in
the Dent’s Run area.” (Id.) “The FBI opened an investigation and met with
Finders . . . at the site on February 23, 2018, along with the FBI contractor,
Enviroscan.” (Id.) Thereafter, in March 2018, the FBI informed Finders “that
Enviroscan had located with [its] equipment a large metal target, around seven to
nine tons in mass.” (Id.) Around that same time, the FBI, pursuant to a federal
warrant and with representatives of DCNR present, “entered the State [F]orest
property and excavated in the area where Finders . . . had identified the potential
Civil War-era cache.” (Id.) “The FBI claims that no material was found during the
investigation.” (Id.)
             Petitioner subsequently filed a request for records under the RTKL with
DCNR, seeking any communications between DCNR and the FBI regarding the
excavation of Dent’s Run. (Id. at R.6.) DCNR acknowledged Petitioner’s request
for records on September 13, 2018, and notified Petitioner that DCNR would need
an additional thirty days to respond to his records request. (Id. at R.30.) By letter
dated October 15, 2018, DCNR denied Petitioner’s request for records on the basis
that the records were “sealed pursuant to [a] federal court order” and were, therefore,
exempt from disclosure by DCNR under the RTKL. (Id. at R.31.) DCNR attached
to its denial a letter from Assistant United States Attorney K.T. Newton (U.S.


                                          2
Attorney Newton), which provided that “the FBI’s investigation of this matter is
continuing, and all documents remain under [federal court] seal.”2 (Id. at R.31,
R.35.)
               On October 26, 2018, Petitioner appealed DCNR’s denial of his records
request to OOR. (Id. at R.2.) In response to the appeal, DCNR provided to OOR an
affidavit of DCNR’s Chief Counsel, Audrey Feinman Miner (Chief Counsel), dated
November 7, 2018. In the affidavit, the Chief Counsel states that on March 12, 2018,
she was personally served with the Order, which concerned “a pending federal
criminal investigation (Investigation) by the [FBI] and the United States Attorney’s
Office for the Eastern District of Pennsylvania” (U.S. Attorney’s Office), which
contained the words “Filed Under Seal.” (Id. at R.33.) According to the affidavit,
U.S. Attorney Newton and other federal officials informed the Chief Counsel at that
time that “all conversations and communication concerning the Investigation were
confidential pursuant to the . . . Order.” (Id.) All communications with DCNR by
the FBI and U.S. Attorney’s Office concerning the Investigation were handled
through the Chief Counsel, and none of the communications have been shared with
anyone outside of her chain of command at the Governor’s Office of General
Counsel. (Id.) After DCNR’s receipt of Petitioner’s RTKL request, the Chief
Counsel contacted U.S. Attorney Newton to inquire as to the current status of the
Investigation, and U.S. Attorney Newton informed her that “the Investigation is still
continuing and that all communication, records, and the Order” are protected. (Id.
at R.34.)    The Chief Counsel requested U.S. Attorney Newton to confirm their
conversation in writing, which he did. (Id. at R.34, R.36.) The Chief Counsel

         2
          The letter from U.S. Attorney Newton references “Magistrate No. 18-361-m (USDC E.D.
Pa.),” but it does not otherwise identify the “matter” to which U.S. Attorney Newton refers. (R.R.
at R.35.)

                                                3
attached a copy of the letter to her affidavit, in which U.S. Attorney Newton stated
that “the FBI’s investigation of this matter is continuing, and all documents remain
under seal.”3 (Id.)
               On November 26, 2018, OOR denied Petitioner’s appeal on the basis
that the requested records were protected by the Order and were, therefore, not
subject to release under the RTKL. (OOR Final Determination at 5.) Furthermore,
OOR determined that DCNR met its burden to prove that the requested records were
exempt from mandated release under the RTKL because the Chief Counsel’s
affidavit was sufficient evidence to meet the agency’s burden of proof. (Id.)
               Petitioner now petitions this Court for review,4 arguing that OOR erred
as a matter of law or abused its discretion when it considered only the Chief
Counsel’s affidavit regarding the Order and did not consider the physical Order
itself. Petitioner asks this Court to conduct an in camera review of the Order, require
DCNR to prepare an exemption log detailing the FBI’s excavation in the Dent’s Run
area of the Pennsylvania state forest property in Elk County, Pennsylvania, and
provide the docket number for the Order. Following oral argument, the Court issued
an order directing DCNR to submit to the Court for in camera review a copy of the
Order.5 DCNR, thereafter, provided the Court with a copy of the Order, which the
Court sealed until further order of the Court and made part of the record.

       3
        As with the earlier letter from U.S. Attorney Newton, this letter references “Magistrate
No. 18-361-m (USDC E.D. Pa.),” but it does not otherwise identify the “matter” to which U.S.
Attorney Newton refers. (R.R. at R.35, R.36.)
       4
         On appeal from OOR in RTKL cases, this Court’s standard of review is de novo and our
scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
       5
         The Court ordered the in camera review because the affidavit of DCNR’s Chief Counsel
does not inform the Court of the substance of the Order nor does it establish that the records sought
pursuant to Petitioner’s RTKL request—i.e., “communications with the FBI concerning FBI


                                                 4
                 “[T]he objective of the RTKL ‘is to empower citizens by affording
them access to information concerning the activities of their government.’” Levy v.
Senate of Pa., 65 A.3d 361, 381 (Pa. 2013) (quoting SWB Yankees LLC v.
Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012)).                    Furthermore, “courts should
liberally construe the RTKL to effectuate its purpose of promoting ‘access to official
government information in order to prohibit secrets, scrutinize actions of public
officials, and make public officials accountable for their actions.’” Id. (quoting
Allegheny Cty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034
(Pa. Cmwlth. 2011)). Generally, the RTKL requires state and local agencies to
provide access to public records6 that are within their possession upon request.7
Section 102 of the RTKL, 65 P.S. § 67.102, defines a “public record,” in part, as “[a]
record, including a financial record, of a Commonwealth or local agency that . . . is
not exempt from being disclosed under any other Federal or State law or regulation
or judicial order or decree.” (Emphasis added.) Furthermore, Section 305 of the
RTKL makes clear that the presumption that a record within an agency’s possession


excavation at Dent’s Run, Elk County”—are protected by the Order. In other words, the affidavit
does not satisfy the Court that the Order actually protects the requested documents from disclosure.
       6
           Section 102 of the RTKL, 65 P.S. § 67.102, defines “public record,” in full, as:
       A record, including a financial record, of a Commonwealth or local agency that:
       (1) is not exempt under [S]ection 708 [of the RTKL]; (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.
(Emphasis added.) Section 102 of the RTKL defines “record” as:
       Information, regardless of physical form or characteristics, 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. The
       term includes a document, paper, letter, map, book, tape, photograph, film or sound
       recording, information stored or maintained electronically and a data-processed or
       image-processed document.
       7
           See Sections 301, 302, and 605 of the RTKL, 65 P.S. §§ 67.301, 67.302, and 67.605.

                                                  5
is a public record does not apply if it is proven that “(1) the record is exempt under
Section 708 of the RTKL, (2) the record is protected by a privilege, or (3) the record
is exempt from disclosure under any other Federal or State law or regulation or
judicial order or decree.” (Emphasis added.) The agency that has received the
RTKL request bears the burden to prove, by a preponderance of the evidence, that
the requested record is exempt from disclosure under the RTKL.                65 P.S.
§ 67.708(a)(1). The preponderance of the evidence standard, “the lowest evidentiary
standard, is tantamount to a more likely than not inquiry.” Del. Cty. v. Schaefer ex
rel. Phila. Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012) (en banc).
             Neither the RTKL nor Pennsylvania case law describes the required
mechanism that an agency must utilize in meeting its burden to prove that the
requested record is exempt from disclosure. This Court has held that a sworn
testimonial affidavit submitted by an agency is sufficient evidence to prove that the
requested record qualifies for an exemption from disclosure when the presented
affidavit is relevant and credible and provides a specifically detailed explanation of
the agency’s rationale in not disclosing a requested record. Twp. of Worcester v.
Office of Open Records, 129 A.3d 44, 60 (Pa. Cmwlth. 2016); Office of the Governor
v. Scolforo, 65 A.3d 1095, 1103-04 (Pa. Cmwlth. 2013) (en banc); Mitchell v. Office
of Open Records, 997 A.2d 1262, 1265 (Pa. Cmwlth. 2010).                “[A] generic
determination or conclusory statements are not sufficient to justify the exemption of
public records.” Scolforo, 65 A.3d at 1103.
             A review of the Order reveals that, although filed under seal, the Order
does not protect or otherwise prohibit disclosure of communications between the
FBI and DCNR regarding the excavation at Dent’s Run. Furthermore, the Order
does not provide any conceivable basis for the withholding of the requested records


                                          6
under the RTKL, with the sole exception being the Order itself, which is filed under
seal. Thus, DCNR has failed to meet its burden to prove that the requested records,
other than the Order, are exempt from disclosure under the RTKL.
            Accordingly, we reverse OOR’s final determination and direct DCNR
to produce the requested documents with the exception of the Order.




                                         P. KEVIN BROBSON, Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William J. Cluck, Esquire,              :
                         Petitioner     :
                                        :
            v.                          :   No. 1683 C.D. 2018
                                        :
Department of Conservation              :
and Natural Resources,                  :
                        Respondent      :



                                      ORDER


            AND NOW, this 24th day of October, 2019, the Final Determination of
the Office of Open Records is REVERSED, and the Department of Conservation
and Natural Resources is directed to produce the documents sought by Petitioner
pursuant to his request under the Right-To-Know Law, Act of February 14, 2008,
P.L. 6, 65 P.S. §§ 67.101-.3104, in accordance with the foregoing Opinion.




                                        P. KEVIN BROBSON, Judge
