          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Game Commission,             :
                     Petitioner           :
                                          :
                   v.                     :   No. 1104 C.D. 2015
                                          :   SUBMITTED: December 11, 2015
Carla Fennell,                            :
                          Respondent      :



BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE LEADBETTER                                           FILED: October 26, 2016


             The Pennsylvania Game Commission (Commission) petitions for
review of a final determination of the Office of Open Records (OOR), which
granted the request of Carla Fennell (Requester) under the Right-to-Know Law
(RTKL).2 Requester sought records related to a complaint that her husband’s
hunting tree stand was too close to a neighbor’s house. The Commission contends
that this case involves neither disputed facts nor conflicting evidence and that the
OOR improperly ordered the Commission to furnish the requested records within
thirty days instead of holding that the records fell under certain enumerated
exceptions to the RTKL. We agree and, accordingly, reverse.



   1
      This case was assigned to the opinion writer before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
    2
      Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
             On April 23, 2015, Requester filed a standard right-to-know request
form with the Commission, seeking records as follows:

      Two weeks before the 2014 deer hunting season began I was
      contacted by the game commission in regards to my husbands [sic]
      tree stand (located on our property of 89 Hidden Spring Lane Grand
      Valley Pa 16420) being to [sic] close to a neighbors [sic] house. Mr.
      Foster called in the complaint. We were told the distance was
      inspected and we were not to hunt from the stand. We did not hunt
      from it and were approached last week by Mr. Foster who said we
      were supposed to have been told to remove the stand and if we didn’t
      he would. I would like to have a copy of the report or anything
      that may have been put on record of the incident.

Standard Right-To-Know Request Form at 1; Reproduced Record (R.R.) at 2a
(emphasis added).

             In response, the Commission explained that records of an agency
relating to a noncriminal investigation are exempt from access by a requester.
Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17). The Commission noted
that such records specifically include “[c]omplaints submitted to an agency”;
“[i]nvestigative materials, notes, correspondence and reports”; and “[a] record that,
if disclosed, would . . . [r]eveal the institution, progress or result of an agency
investigation [with certain exceptions] . . . . Section 708(b)(17)(i)-(ii) and (vi)(A)
of the RTKL, 65 P.S. § 67.708(b)(17)(i)-(ii) and (vi)(A). The Commission further
stated that, because the records that Requester sought fell within the statutory
exemption, they were not public records as defined by Section 102 of the RTKL,
65 P.S. § 67.102, and the Commission thus denied Requester’s request.
Commission’s denial letter, dated April 24, 2015, at 1; R.R. at 4a.

             Requester appealed the denial to the OOR, stating in an attached letter
in part: “I don’t see why I have to remove it [the tree stand], we don’t plan on

                                          2
hunting from it, my grandkids play in it [sic].” Requester’s Letter, dated April 30,
2015, at 1-2; R.R. at 6a. By letter dated May 4, 2015, the OOR informed the
parties, inter alia, that they could submit information and legal arguments
supporting their respective positions within seven business days. OOR’s Letter,
dated May 4, 2015, at 1; R.R. at 10a. The letter further provided:

        The law requires that your position must be supported by sufficient
        facts and citation to all relevant sections of the RTKL, case law, and
        Final Determinations of the OOR. Statements of fact must be
        supported by an affidavit made under penalty of perjury by a
        person with actual knowledge. An affidavit is required to
        demonstrate nonexistence of records. Blank sample affidavits are
        available on our website.

        The agency has the burden of proving that records are not subject to
        public access. Any written information you provide to OOR must be
        provided to all parties.

Id. at 1-2; R.R. at 10-11a (emphasis in original).3

        Thereafter, Requester submitted no supplementary information. The
Commission submitted correspondence in the form of “an unsworn position
statement.” OOR Final Determination, mailed June 3, 2015, at 2; R.R. at 23a. In
this statement, the Commission once again asserted that Requester’s appeal should
be dismissed because the requested records relate to a noncriminal investigation
and, hence, are not public records. The Commission also asserted that the records
are exempt and not public records because they relate to a criminal investigation,
see Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16), and because, if they
are disclosed, they “would be reasonably likely to result in a substantial and

    3
      The letter also provided that the agency must notify interested third parties of the records
request pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c).



                                                3
demonstrable risk of physical harm to or the personal security of an individual.”
Section 708(b)(1)(ii) of the RTKL, 65 P.S.§ 67.708(b)(1)(ii).4 Citing the
proposition that position statements and legal arguments do not amount to
evidence, OOR concluded that because the Commission submitted no evidence on
appeal it could not sustain its burden of proving the requested records were exempt
from disclosure. Therefore, the OOR issued a final determination on June 3, 2015,
granting Requester’s appeal and ordering the Commission “to provide copies of all
responsive records within thirty days.” OOR’s Final Determination, mailed June 3,
2015, at 4; R.R. at 25a. The Commission’s appeal to this Court followed.5

               The heart of the Commission’s inquiry on appeal is whether, given the
absence of disputed facts and conflicting evidence, the OOR improperly held that
the Commission failed to meet its burden of proving that the requested records fell
within a stated exception for public records access under the RTKL. Stated another
way, the Commission argues that, based on the facts averred by Requester as well
as the records sought, the OOR had enough information to decide the case on the

    4
       With respect to records relating to or resulting in a criminal investigation, the Commission
specifically cited “[c]omplaints of potential criminal conduct other than a private criminal
complaint”; “[i]nvestigative materials, notes, correspondence, videos and reports”; “[v]ictim
information, including any information that would jeopardize the safety of the victim”; “[a]
record that, if disclosed … would … [r]eveal the institution, progress or result of a criminal
investigation, except the filing of criminal charges” and/or “[e]ndanger the life or physical safety
of an individual.” Section 708(b)(16)(i)-(ii) and (v)-(vi)(A) and (E) of the RTKL, 65 P.S. §
67.708(b)(16)(i)-(ii) and (v)-(vi)(A) and (E). The law is clear that the Commission was allowed
to assert on appeal additional reasons why the requested records were exempt. Levy v. Senate of
Pa., 65 A.3d 361, 363 (Pa. 2013). We agree with OOR that evidence would have been necessary
to prove the applicability of these additional exceptions, but these are not in issue before this
Court.
     5
       This Court may, in our appellate jurisdiction, independently review the orders of the OOR
and substitute our own factual findings for those of the agency. Pa. State Troopers Ass’n. v.
Scolforo, 18 A.3d 435, 438 n.6 (Pa. Cmwlth. 2011). Moreover, our review under the RTKL
regarding questions of law is plenary. Id.



                                                 4
merits and to conclude that the requested records fell within an enumerated
exception for public records, thus curtailing their access.

              Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), provides that
“[t]he burden of proving that a record of a Commonwealth agency . . . is exempt
from public access shall be on the Commonwealth agency . . . receiving a request
by a preponderance of the evidence.” A preponderance of the evidence is that
proof that ‘“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) (quotation omitted).

              Moreover, this Court has held that an “unsworn position statement
does not constitute evidence. Position statements are akin to briefs or proposed
findings of fact, which, while part of the record, are distinguishable from the
evidentiary record.” Office of the Governor v. Davis, 122 A.3d 1185, 1193-94 (Pa.
Cmwlth. 2015) (en banc) (emphasis in original). We noted in Davis that “records
reviewed in camera are sufficient evidence for an agency to meet its burden of
proof.”6 We also explained that, while “this Court has not held an affidavit or other
verified statement is required to prove an exemption . . . we [do] hold evidence is
required, and in the RTKL context, an affidavit may serve that function.” Id. at
1194 (emphasis in original). Importantly, however, we pointed out that “an
affidavit may be unnecessary when an exemption is clear from the face of the
record.” Id. See also Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa.
Cmwlth. 2010) (en banc), appeal denied, 76 A.3d 540 (Pa. 2013) (emphasis
added).

    6
      Here, the Commission did not ask the OOR hearing officer to perform an in camera review
of the records sought by Requester.



                                             5
            To the extent that OOR construed our holdings to suggest that the
failure of the Commission to submit affirmative evidence amounted to some sort of
default, automatically precluding its ability to sustain its burden to show that the
records were exempt from disclosure, we believe it has misconstrued our
precedent. Section 1102(a)(2) of the RTKL provides that an OOR hearing
examiner shall:
            Review all information filed relating to the request. The
            appeals officer may hold a hearing. A decision to hold or
            not to hold a hearing is not appealable. The appeals
            officer may admit into evidence testimony, evidence and
            documents that the appeals officer believes to be
            reasonably probative and relevant to an issue in dispute.

65 P.S. § 67.1102(a)(2) (emphasis added). Moreover, “[t]he record before a court
shall consist of the request, the agency's response, the appeal filed under section
1101, the hearing transcript, if any, and the final written determination of the
appeals officer.” Section 1303(b) of the RTKL, 65 P.S. § 67.1303(b). Plainly, the
General Assembly intended the request to be a substantive part of the record.
Moreover, since the hearing officer is required to consider “the information filed
concerning the request,” but is not required to take evidence, the legislature must
have intended that the issue could be decided without the submission of evidence
where appropriate, such as where the facts are undisputed by the parties. In such a
circumstance, we see no reason why OOR cannot decide the legal issue presented
based on those undisputed facts.

            In the present case, it is clear from the statements in Mrs. Fennell’s
request, with which facts the Commission agrees, that: 1) a neighbor made a
complaint about a tree stand on her property; 2) the Commission investigated and
determined that the stand was in a location where it was not allowed to be used for
hunting; and 3) Mrs. Fennell requested a copy of the Commission’s report of its


                                         6
investigation and “anything that may have been put on record of the incident.”
While the issue might have been more clearly focused had the Commission
submitted an affidavit describing the nature of the documents it possessed, or
submitted the documents at issue for in camera inspection, we must nonetheless
conclude that the materials requested fall in the category of “[c]omplaints
submitted to an agency” and “[i]nvestigative materials, notes, correspondence and
reports . . . .” Section 708(b)(17)(i)-(ii) of the RTKL, 65 P.S. § 67.708(b)(17)(i)-
(ii).

            Accordingly, we reverse.



                                       _________________________________________
                                       BONNIE BRIGANCE LEADBETTER, Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Game Commission,          :
                     Petitioner        :
                                       :
                  v.                   :   No. 1104 C.D. 2015
                                       :
Carla Fennell,                         :
                        Respondent     :




                                  ORDER


            AND NOW, this 26th day of October, 2016, the order of the Office of
Open Records is hereby REVERSED.



                                     _________________________________________
                                     BONNIE BRIGANCE LEADBETTER, Judge
