            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Liquor Control Board,             :
                 Petitioner                    :
                                               :
               v.                              :
                                               :
David Perretta,                                :    No. 1470 C.D. 2018
                       Respondent              :    Submitted: May 17, 2019



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: November 18, 2019


               The Pennsylvania Liquor Control Board (PLCB) petitions for review
of the October 5, 2018 final determination of the Pennsylvania Office of Open
Records (OOR) concluding that the Right-to-Know Law (RTKL)1 request (Request)
submitted by David Perretta (Requester) to the PLCB seeking a copy of a complaint
allegedly filed by a particular individual, whom Requester identified by name, was
not exempt from disclosure as a record relating to a noncriminal investigation under
RTKL Section 708(b)(17)(i), 65 P.S. § 67.708(b)(17)(i).                  OOR’s Final
Determination at 5-10, Reproduced Record (R.R.) at 68a-73a. The PLCB requests
that this Court reverse the final determination of the OOR and find that the requested



      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
complaint, if it exists, is exempt from disclosure under the RTKL. Petition for
Review at 5. Upon review, we reverse.
            On August 8, 2018, Requester submitted his Request to the PLCB,
seeking a copy of a complaint allegedly filed against him with the PLCB by a liquor
store employee, whom Requester identified by name, around May 2015 when
Requester was still a PLCB employee. Request, R.R. at 24a; Requester’s Appeal at
1, R.R. at 31a. On August 15, 2018, the PLCB sent Requester a final response
denying his Request because, among other reasons, the requested complaint was
exempt from disclosure pursuant to the noncriminal investigation exemption
contained in Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17). PLCB Final
Response at 1, R.R. at 2a.
            On September 6, 2018, Requester filed an appeal with the OOR.
Requester’s Appeal at 1, R.R. at 8a. On September 7, 2018, the OOR e-mailed
Requester and the PLCB a letter to advise them regarding the appeals process. OOR
Letter, 9/7/18 at 1, R.R. at 4a. The OOR advised the parties as follows:

            Statements of fact must be supported by an affidavit or
            attestation made under penalty of perjury by a person
            with actual knowledge. Any factual statements or
            allegations submitted without an affidavit will not be
            considered. The agency has the burden of proving that
            records are exempt from public access (see 65 P.S. §
            67.708(a)(1)). To meet this burden, the agency must
            provide evidence to the OOR. The law requires the
            agency’s position to be supported by sufficient facts and
            citation to all relevant sections of the RTKL, case law and
            OOR Final Determinations.

Id. (emphasis in original). The PLCB submitted a position statement, contending
that it properly denied the Request pursuant to the RTKL’s noncriminal investigation

                                         2
exemption because, “assuming for the sake of argument that a discrimination or
sexual harassment complaint was filed against [Requester], that complaint would
have been investigated by the PLCB as part of its legislatively granted official
duties.” PLCB Position Statement at 5-7, R.R. at 19a-21a (citing RTKL Section
708(b)(17), 65 P.S. § 67.708(b)(17)).
              The PLCB submitted the affidavits of Jennifer Haas, Director of the
PLCB’s Department of Human Resources, and M. Kathryn Blatt, Human Resource
Analyst 3 with the PLCB’s Equal Opportunity Office. See Haas Affidavit, R.R. at
37a-38a; Blatt Affidavit, R.R. at 39a-40a. Haas attested that her duties include
overseeing the Equal Opportunity Office and the Labor Relations Division. Haas
Affidavit at 1, ¶ 2, R.R. at 37a. Haas further attested:


                    3. When complaints are made by or about PLCB
             employees, such complaints are investigated by either the
             [PLCB’s] Labor Relations Division or the Equal
             Opportunity Office, depending on the specific nature of
             the complaints.
                    4.    Complaints      involving    allegations    of
             discrimination or sexual harassment are investigated by
             the Equal Opportunity Office in accordance with
             Commonwealth         Management        Directive    410.10
             (Amended) and as required by, among other provisions of
             law, 42 U.S.C. §§ 2000e [to 2000e-17] and 43 P.S. §§
             951[to 963].
                    5. Complaints involving all other allegations of
             misconduct or wrongdoing by PLCB employees are
             investigated by the Labor Relations Division.
                    6. Any complaints that are received by either the
             [PLCB’s] Labor Relations Division or the Equal
             Opportunity Office are thoroughly investigated and, if
             evidence supports the allegations, appropriate disciplinary
             or other corrective action is taken.


                                           3
Haas Affidavit at 1-2, ¶¶ 3-6, R.R. at 37a-38a.
                  Blatt attested that she is “responsible for administering the PLCB’s
equal opportunity and disability services functions” and that, “[t]o that end, [she]
. . . investigate[s] discrimination and sexual harassment complaints[.]”                 Blatt
Affidavit at 1, ¶ 2, R.R. at 39a. Blatt stated that when she “receives complaints
involving allegations of discrimination or sexual harassment, such complaints are
investigated by the Equal Opportunity Office in accordance with Commonwealth
Management Directive 410.10 (Amended) and as required by, among other
provisions of law, [federal equal employment opportunity law,] 42 U.S.C. §§ 2000e
[to 2000e-17] and [the Pennsylvania Human Relations Act2], 43 P.S. §§ 951 [to
963].”        Blatt Affidavit at 1, ¶ 3, R.R. at 39a.              Blatt further attested that
Commonwealth Management Directive 410.10 outlines the steps that must be taken
by the Equal Opportunity Office in investigating complaints of discrimination or
sexual harassment and specifies which materials the investigative file must include.
Id., ¶ 4, R.R. at 39a. Blatt stated that “[a]ny documents that are maintained as part
of the investigative file, including the complaint itself, are used solely for the
purposes of conducting the investigation and are otherwise treated as sensitive and
confidential,” partly in order “to encourage cooperation with investigations and
prevent [] possible retaliation.” Id., ¶ 5, R.R. at 39a. Blatt stated that “[a]ny
complaints that are received by [the Equal Opportunity Office] are thoroughly
investigated and, if any evidence supports the allegations, appropriate disciplinary
or other corrective action is taken.” Id., ¶ 6, R.R. at 39a. Blatt further attested that
“[i]f disciplinary action [was] warranted in any given case, the matter would be




         2
             Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951 – 963.
                                                  4
referred to the Labor Relations Division for further action.” Blatt Affidavit at 2, ¶
7, R.R. at 40a.
             On September 27, 2018, the OOR requested that the PLCB provide a
supplemental submission addressing “whether an investigation took place in relation
to the [requested] complaint and what entity conducted the investigation.” OOR E-
mail, 9/27/18, R.R. at 51a. That same day, the PLCB responded, asking the OOR to
reconsider its request. PLCB E-mail, 9/27/18 at 1, R.R. at 55a. The PLCB
contended that, because the Request identifies the name of a specific individual,
confirming whether an investigation took place would have the result of publicly
confirming whether this particular complainant actually submitted a complaint. Id.
The PLCB further asserted that complying with the OOR’s request would
contravene Stein v. Plymouth Township, 994 A.2d 1179 (Pa. Cmwlth. 2010), in
which this Court held that complaints submitted to an agency that are exempt from
access pursuant to the RTKL’s noncriminal investigation exemption are exempt in
their entirety, including the name or identity of the complainant. PLCB E-mail,
9/27/18 at 1, R.R. at 55a. The PLCB maintained that the affidavits it previously
provided to the OOR sufficed to demonstrate that any complaints of misconduct
received from or about a PLCB employee would have been investigated by the
PLCB’s Equal Opportunity Office or Labor Relations Division in accordance with
the PLCB’s official duties. Id.
             On October 5, 2018, the OOR issued a final determination granting
Requester’s appeal and instructing the PLCB to provide a copy of the requested
complaint to Requester within 30 days. OOR Final Determination at 11, R.R. at 74a.
The OOR concluded that the PLCB failed to prove that the requested record is
exempt as a record relating to a noncriminal investigation under RTKL Section


                                         5
708(b)(17), 65 P.S. § 67.708(b)(17). OOR Final Determination at 8, R.R. at 71a.
Relying on Brown v. Pennsylvania Office of Inspector General (Pa. Cmwlth., No.
730 C.D. 2016, filed Oct. 27, 2017), and Black v. Pennsylvania State Police (Pa.
Cmwlth., No. 676 C.D. 2016, filed Nov. 23, 2016),3 the OOR found that while the
PLCB established that it has the legislatively granted authority under the Liquor
Code4 and Commonwealth Management Directive 410.10 to investigate complaints
lodged against its employees, the PLCB failed to establish that an investigation
regarding the requested complaint was actually conducted.                            OOR Final
Determination at 7-8 & 10, R.R. at 70a-71a & 73a. The PLCB then appealed to this
Court.5
                Before this Court,6 the PLCB argues that the OOR erred in determining
that the requested complaint was not exempt from disclosure as an agency record
relating to a noncriminal investigation under RTKL Section 708(b)(17), 65 P.S. §
67.708(b)(17). PLCB’s Brief at 22. The PLCB contends that the complaint sought
by Requester, assuming it exists, would be exempt from disclosure in its entirety,
including the name of the complainant. See id. at 15 (citing Stein, 994 A.2d at 1182).
The PLCB maintains that it had explained its legal obligations to investigate
allegations of discrimination or sexual harassment, and asserts the affidavits it
provided clearly indicate that all complaints made by or about PLCB employees are


      This Court’s unreported memorandum opinions may be cited for persuasive value.
       3

Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
       4
           Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 1-101 to 10-1001.
       5
         Requester failed to file a brief as ordered by this Court, and consequently, this Court
precluded him from filing a brief. Cmwlth. Ct. Order dated 5/10/19.
       6
         This Court’s review of a final determination of the OOR is de novo and our scope of
review is plenary. Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 2014).
                                                 6
investigated by either the Labor Relations Division or the Equal Opportunity Office,
depending on the specific nature of the complaint. Id. at 17 & 21. The PLCB
contends that the OOR erred in focusing on the fact that the PLCB did not provide
an affidavit indicating that the requested complaint was actually received and
investigated. Id. Further, the PLCB asserts that the OOR erred in relying upon Black
and Brown, as those cases are distinguishable given the wording of those requests.
The PLCB claims that, unlike Black and Brown, “there was no opportunity here for
[it] to prove that a responsive complaint was received and investigated without also
publicly revealing or confirming the identity of the alleged complainant.” Id. at 19.
The PLCB maintains that revealing or confirming the identity of a complainant
“would defy logic and ignore the obvious and recognized purposes for which the
‘complaint’ provision within the noncriminal investigation exemption exists in the
first place—to prevent retaliation and avoid discouraging persons from making
complaints concerning alleged wrongs.” Id. at 20 (citing Dep’t of Health v. Office
of Open Records, 4 A.3d 803, 811-12 (Pa. Cmwlth. 2010)).7

       7
          The PLCB also argues that Requester’s failure to include a copy of his August 8, 2018
RTKL Request with his OOR appeal warrants dismissal in accordance with the OOR’s Procedural
Guidelines. PLCB’s Brief at 35 & 36 (citing OOR Procedural Guidelines §§ IV(B)(1)(a) &
IV(C)(1)(a)). The PLCB notes that after it received Requester’s OOR appeal documents,
Requester supplied a handwritten document purportedly summarizing, yet differing from, his
initial Request. See id. at 36; see also Requester’s Handwritten Appeal Document, R.R. at 12a.
The OOR rejected the PLCB’s argument that Requester’s appeal was deficient, noting that the
PLCB provided a copy of the August 8, 2018 Request with its submission, such that the OOR had
a copy of the correct request language for purposes of review on appeal. OOR Final Determination
at 2 n.1, R.R. at 65a (citing RTKL Section 1102(b)(3), 65 P.S. § 67.1102(b)(3) (stating that “[i]n
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”)). We have previously noted that “[t]he OOR[] has not adopted
regulations similar to the provisions found in Chapter 5 of Title 2 [of the Administrative Agency
Law, relating to practice and procedure of Commonwealth agencies]; rather, it has only adopted
‘Interim Guidelines’ that do not constitute duly promulgated regulations.” Bowling v. Office of
Open Records, 75 A.3d 453, 471 n.20 (Pa. 2013). “It is well settled that regulations not

                                                7
               We begin with an overview of the RTKL. “The objective of . . . [the
RTKL] . . . is to empower citizens by affording them access to information
concerning the activities of their government.” SWB Yankees LLC v. Wintermantel,
45 A.3d 1029, 1042 (Pa. 2012). Further, the RTKL is remedial in nature and is
“designed to promote access to official government information in order to prohibit
secrets, scrutinize the actions of public officials and make public officials
accountable for their actions.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122
(Pa. Cmwlth. 2015). “[C]ourts should liberally construe the RTKL to effectuate its
purpose[.]” Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 403 (Pa. Cmwlth.
2013).
               A record in the possession of a Commonwealth agency shall be
presumed to be a public record. RTKL Section 305(a), 65 P.S. § 67.305(a). This
presumption shall not apply if the requested record is exempt under the RTKL, is
exempt from disclosure under any other federal or state law or is 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.” Brown v. Pa. Dep’t of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015).
“A preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.” Delaware County v. Schaefer ex rel.


promulgated pursuant to the Commonwealth Documents Law[,] [Act of July 31, 1968, P.L. 769,
as amended, 45 P.S. §§ 1102-1602, 45 Pa.C.S. §§ 501-907,] have no force or effect and may not
form the basis of an agency’s action.” Cmty. Country Day Sch. v. Dep’t of Educ., 414 A.2d 428,
431 (Pa. Cmwlth. 1980). Thus, we find that the OOR did not err in denying the PLCB’s request
that it dismiss Requester’s appeal for failure to include a copy of the Request. See Kokinda v.
County of Lehigh (Pa. Cmwlth., No. 1146 C.D. 2013, filed Feb. 25, 2014), slip op. at 4 (holding
that the “OOR’s dismissal of [the] [r]equester’s appeal on the ground that he failed to follow the
OOR’s Interim Guidelines” by neglecting to include a copy of the RTKL request and/or agency
response “was without any legal basis”).

                                                8
Phila. Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012). However, “[e]xemptions
from disclosure must be narrowly construed due to the RTKL’s remedial nature
. . . .” Office of the Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013).
             RTKL Section 708(b)(17)(i) exempts from disclosure “record[s] of an
agency relating to a noncriminal investigation, including . . . [c]omplaints submitted
to an agency.” 65 P.S. § 67.708(b)(17)(i).     In order to invoke the exemption, the
agency must conduct the noncriminal investigation as part of its official duties—that
is, while “acting within its legislatively-granted fact-finding and investigative
powers.” Johnson v. Pa. Convention Ctr. Auth., 49 A.3d 920, 925 (Pa. Cmwlth.
2012).    The noncriminal investigation exemption is intended to encourage
information sharing and promote cooperation with investigations, recognizing that
persons are less likely to provide valuable information out of fear of retaliation or
public embarrassment absent certain safeguards against disclosure. See Pa. Pub.
Util. Comm’n v. Gilbert, 40 A.3d 755, 761 (Pa. Cmwlth. 2012); Dep’t of Health, 4
A.3d at 811-12. This Court has specifically held that this exemption protects “the
names of individuals who filed the complaint that prompted the investigation.”
Stein, 994 A.2d at 1182.
             Here, the OOR found that the PLCB failed to meet its burden to
establish that the requested complaint, if it existed, was exempt from disclosure
pursuant to the RTKL’s noncriminal investigation exemption.              OOR Final
Determination at 9-10, R.R. at 72a-73a (citing RTKL Section 708(b)(17)(i), 65 P.S.
§ 67.708(b)(17)(i)). For the following reasons, we disagree.
             Requester requested the complaint that was filed against him by an
employee of the PLCB while Requester was also an employee of the PLCB. The
Haas and the Blatt affidavits make clear that when complaints are made by or about


                                          9
PLCB employees, all such complaints are investigated by either the PLCB’s Labor
Relations Division or the Equal Opportunity Office, depending on the specific nature
of the complaints, pursuant to Commonwealth Management Directive 410.10
(Amended) and as required by, among other provisions of law, 42 U.S.C. §§ 2000e
to 2000e-17 and 43 P.S. §§ 951 to 963. Haas Affidavit at 1, ¶¶ 3-4, R.R. at 37a,
Blatt Affidavit at 1, ¶ 3, R.R. at 39a. As such, the requested record, the employee
complaint against the Requester, falls squarely within the exemption described in
RTKL Section 708(b)(17)(i), 65 P.S. § 67.708(b)(17)(i), exempting records “relating
to a noncriminal investigation, including . . . [c]omplaints submitted to an agency.”
               As stated, in order to establish an exemption from disclosure under the
RTKL, an agency need only satisfy the preponderance of the evidence standard,
which is the lowest evidentiary standard and “has been defined as ‘such proof as
leads the fact-finder . . . to find that the existence of a contested fact is more probable
than its nonexistence.’” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa.
Cmwlth. 2011) (quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation
Approval Bd., 5 A.3d 821, 827 (Pa. Cmwlth. 2010)). Further, to satisfy its burden
of proof, an agency may submit an affidavit. See Moore v. Office of Open Records,
992 A.2d 907, 909 (Pa. Cmwlth. 2010). Here, we conclude that the sworn affidavits
submitted by the PLCB were legally sufficient to establish that, “more likely than
not,” it conducted a noncriminal investigation of the complaint.8 See Delaware

       8
          Although the OOR cites to our unreported decisions of Black and Brown for the
proposition that an agency must demonstrate that an investigation was in fact conducted with
respect to the requested complaint in order to claim the noncriminal investigation exemption, we
agree with the PLCB that these cases are distinguishable, as both involved RTKL requests that did
not identify the alleged complainants by name. Thus, in those cases, the agencies were able to
provide affidavits specifically establishing that investigations had been conducted with respect to
the requested complaints in order to establish the noncriminal investigation exemption without
automatically divulging the complainants’ names.

                                               10
County, 45 A.3d at 1156. Thus, we find that the OOR erred in determining that the
PLCB failed to prove that the requested complaint, assuming it exists, was exempt
from disclosure as a record relating to a noncriminal investigation under RTKL
Section 708(b)(17)(i), 65 P.S. § 67.708(b)(17)(i).9
               Accordingly, we reverse.




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       9
        Due to our disposition, we need not address the PLCB’s remaining arguments regarding:
(1) exemption from disclosure for records containing written criticisms of an agency employee,
see RTKL Section 708(b)(7)(vi), 65 P.S. § 67.708(b)(7)(vi); (2) exemption from disclosure for
records containing grievance material pertaining to an agency employee, see RTKL Section
708(b)(7)(vii), 65 P.S. § 67.708(b)(7)(vii); (3) that the OOR erred in failing to address the
procedural due process implications of its failure to provide the alleged third-party complainant an
opportunity to participate; and (4) that the OOR erred by failing to rule on or otherwise
acknowledge the PLCB’s response to the OOR’s request that the PLCB supplement the record.
See PLCB’s Brief at 22, 30 & 33.

                                                11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Liquor Control Board,    :
                 Petitioner           :
                                      :
            v.                        :
                                      :
David Perretta,                       :   No. 1470 C.D. 2018
                  Respondent          :



                                 ORDER


            AND NOW, this 18th day of November, 2019, the October 5, 2018
final determination of the Office of Open Records is REVERSED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
