          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Fennell,                                :
                              Petitioner       :
                                               :
               v.                              :    No. 1827 C.D. 2015
                                               :    Submitted: February 5, 2016
Pennsylvania Department of                     :
Corrections,                                   :
                       Respondent              :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: March 29, 2016

               Robert Fennell (Requester), an inmate housed in the State Correctional
Institution at Smithfield, petitions for review from the Office of Open Records’
(OOR) final determination that upheld the Department of Corrections’ (DOC) denial
of access to records sought under the Right-to-Know Law (RTKL).1 Requester
sought records, including training manuals, regarding physical restraint of inmates
and report writing. OOR upheld DOC’s denial of the request based on the public
safety exception in Section 708(b)(2) of the RTKL, 65 P.S. §67.708(b)(2).
Requester argues the manuals are public because they fix the personal or property
rights of inmates. Upon review, we affirm.


                                       I. Background
               Requester submitted a request for the following:

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
            1. The training academies manual, worksheet, guide and
            diagrams on how to handcuff an inmate and how to fill out
            and file a misbehavior report ([under] DC-141) on an inmate;
            (Training Materials) and[,]

            2. Documents showing the attendance of [Correction Officer]
            Bollinger from Jan. 29, 2009 to Feb. 2, 2009.

Certified Record (C.R.) at Ex. 1 (Request).


            DOC denied the Request as to the Training Materials sought in Item 1
based on the public safety exception in Section 708(b)(2) of the RTKL, 65 P.S.
§67.708(b)(2), and the personal security exception in Section 708(b)(1)(ii), 65 P.S.
§708(b)(1)(ii) (collectively, the security exceptions).       DOC disclosed the
attendance records. Requester appealed the denial to OOR.


            On appeal to OOR, DOC submitted an affidavit of Major Victor
Mirarchi (Mirarchi), its Chief of Security (Affidavit) to support its exceptions.
Mirarchi oversees security aspects of DOC including “review [of] all policies,
procedures and training as they relate to security.” C.R., Item No. 3, Ex. A
(Affidavit at ¶2). He explained the Training Materials relate to inmate restraint
(Restraint Manuals) and investigating and writing reports (Report Writing
Manuals).


            In general, the Training Materials relate to DOC’s law enforcement
functions. Mirarchi cautioned that their disclosure may allow inmates to circumvent
correction officer training. Specifically, as to the Restraint Manuals, he attested
disclosure of information regarding how staff use restraints would place staff and
inmates at “greater risk of harm,” and may allow an inmate to assert a “successful


                                         2
defense.” Id. (Affidavit at ¶25). As to the Report Writing Manuals, he attested they
contain investigative techniques that would allow inmates to obstruct reporting.
Further, their disclosure may allow inmates to challenge “a misconduct report not
precisely following the Training Materials.” Id. (Affidavit at ¶29). As a result,
“disorderly inmates [would be placed] back into the general population to further
disrupt the safety and security of the institution.” Id. (Affidavit at ¶30).


              Ultimately, OOR issued a final determination, upholding DOC’s denial
as to the Training Materials. See Fennell v. Dep’t of Corr., OOR Dkt. No. AP 2015-
1518 (issued September 8, 2015) (Final Determination). It dismissed the appeal as
moot as to the attendance records. Id. Regarding the public safety exception, OOR
found the Affidavit contained sufficient detail to establish public safety would be
reasonably likely to be jeopardized if the Training Materials were disclosed.


              Requester filed a petition for review.


                                       II. Discussion
              On appeal,2 Requester argues he has a right to the records as a citizen.
He asserts the Training Materials “are merely management tools which establishes
[sic] standards of behavior for employees ….” Pet’r’s Br. at 8. He contends
DOC’s argument that the Report Writing Manuals are protected so an inmate may
not easily appeal “misconducts by proving that the officers violated [DOC]
regulations and his due process” is not a proper basis for protection. Id.
       2
         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
             Under the RTKL, records in the possession of an agency are presumed
public unless they are: (1) exempt under Section 708(b) 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. DOC bears
the burden of proving its asserted exceptions by a preponderance of the evidence.
Section 708(a) of the RTKL, 65 P.S. §67.708(a); Carey v. Dep’t of Corr., 61 A.3d
367, 374 (Pa. Cmwlth. 2013). A preponderance of the evidence standard, the
lowest evidentiary standard, is tantamount to “a more likely than not” inquiry.
Carey, 61 A.3d at 374 (quoting Delaware Cnty. v. Schaefer ex rel. Phila. Inquirer,
45 A.3d 1149, 1156 (Pa. Cmwlth. 2012) (en banc)).


             To establish the public safety exception, DOC must prove by a
preponderance of the evidence that the disclosure of the records “would be
reasonably likely to jeopardize or threaten public safety or preparedness or public
protection activity ....” 65 P.S. §67.708(b)(2); Carey, 61 A.3d at 374; Adams v. Pa.
State Police, 51 A.3d 322 (Pa. Cmwlth. 2012). We apply a two-pronged test: (1)
the record at issue must relate to a law enforcement or public safety activity; and,
(2) disclosure of the record would be “reasonably likely” to threaten public safety
or a public protection activity. Id.


             Here, DOC submitted sufficient evidence in the form of the Affidavit
to show that the Training Materials relate to a law enforcement activity. Mirarchi
attested corrections officers use the materials in performing their duties. C.R.,
Item No. 3, Ex. A (Affidavit at ¶8).




                                         4
             As to the reasonable likelihood component, we consider whether an
agency submitted sufficient evidence showing a likelihood that disclosure would
cause the alleged harm. Carey. More than a potential safety risk is required to
meet this exception. Pa. State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth. 2014)
(en banc) (rejecting argument that disclosure of number of officers assigned to a
municipality threatens public safety by revealing potentially vulnerable areas).


             This Court’s decisions support protection of manuals and training
materials under the public safety exception when the agency shows a nexus between
the disclosure of the information at issue and the alleged harm. See, e.g., Adams
(protecting police policy regarding confidential informants); Woods v. Office of
Open Records, 998 A.2d 665, 668 (Pa. Cmwlth. 2010) (protecting the “Supervision
Strategies” part of a sex offender supervision manual); Reeves v. Pa. Bd. of Prob.
& Parole (Pa. Cmwlth., No. 819 C.D 2014, filed June 5, 2015) (unreported)
(protecting manual agency used to monitor parolee’s change of address); but see
Harrisburg Area Cmty. Coll. v. Office of Open Records (Pa. Cmwlth., No. 2110
C.D. 2009, filed May 17, 2011) (unreported) (en banc) (HACC) (holding affidavit
regarding police manuals for DUI training insufficient as to connection between
need for confidentiality and the potential harm). Generally, whether an agency
establishes this exception depends on the level of detail in the supporting affidavit.
Carey.


             In Adams, this Court reasoned the Pennsylvania State Police met its
burden of proving the manuals regarding use of confidential informants warranted
protection because the affidavit contained sufficient detail. Specifically, the affiant



                                          5
stated: “If this information is placed into the public domain, it would prevent
confidential informants from coming forward and substantially alter our criminal
investigative process. Confidential informants are irreplaceable in many of our
current intelligence investigations ….” Adams, 51 A.3d at 324.


              Similarly, in Woods, the Board of Probation and Parole disclosed
redacted policies regarding monitoring of sex offenders to an inmate, removing the
“Supervision Strategies” for public safety reasons. Id. at 666. The essential factor
in our decision was the level of detail the director of the agency provided regarding
the ways in which a sex offender might use the redacted information to evade or
avoid detection.


              By contrast, in HACC, we concluded the affidavit submitted did not
contain sufficient detail to establish the public safety exception. The requester
sought training curricula used to teach police officers about making DUI arrests.
HACC submitted an affidavit in which its affiant stated, “[b]ased upon my
professional experience and judgment [as director of Municipal Police Officer
Education and Training Commission], a disclosure of the Commission’s DUI
curriculum in response to this RTKL request would be reasonably likely to
jeopardize or threaten the Commission’s statutorily-mandated public protection
activity.” HACC, slip op. at 14. This Court found the affidavit conclusory.3 See
Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (en banc).
       3
         We remanded to OOR to create a more complete record because it was not clear, under
the “freshly minted law” that the agency could have requested a hearing or in camera review to
substantiate its exception. HACC v. Office of Open Records (Pa. Cmwlth., No. 2110 C.D. 2009,
filed May 17, 2011) (unreported) (en banc), slip op. at 14. Here, there is no indication DOC
asked to supplement the record beyond the Affidavit.



                                              6
             With these standards in mind, we review the Affidavit.


             DOC amply supported that the public safety exception protects the
Restraint Manuals. C.R., Item No. 3, Ex. A (Affidavit at ¶15-25). The Affidavit is
specific as to the potential for harm to public safety should DOC be required to
disclose its methods for restraining inmates. Mirarchi attests to the connection
between the information at issue regarding restraint techniques, and the danger to
staff and inmates should inmates have the playbook to defend against restraints.
Id. at ¶¶20-25. We are persuaded that information contained in the Restraint
Manuals could be manipulated by inmates in their interaction with corrections
officers “to reduce [the restraints’] effectiveness.” Id. at ¶22.


             As to the Report Writing Manuals, DOC established their investigative
content warrants protection for similar reasons. Significantly, Mirarchi attested the
Report Writing Manuals “reveal investigative techniques for conducting
investigations.” Id. at ¶28. Knowledge of such techniques may allow for inmate
manipulation and counteraction. Woods; Carey v. Dep’t of Corr. (Pa. Cmwlth., No.
1348 C.D. 2012, filed July 3, 2013) (unreported).


             As to the non-investigative content, the Affidavit stated inmates could
“disrupt the disciplinary process due to a misconduct report not precisely following
the [Report Writing Manuals].” Affidavit at ¶29. Specifically, Mirarchi attested:
“As such, misconducts that should have been issued but for a statement inconsistent
with the Training Materials will place disorderly inmates back into the general




                                           7
population to further disrupt the safety and security of the institution.” Id. at ¶30
(emphasis added).


             Viewing the Affidavit in a light most favorable to the party prevailing
before the OOR, it supports an inference that disclosure of the non-investigative
portions of the Report Writing Manual will cause corrections officers to forego
meritorious discipline over concerns of departure from misconduct reporting
guidelines. As a consequence, reporting procedures by corrections officers, as
opposed to substantive conduct of inmates, will assume greater significance,
resulting in the placement of disorderly inmates into the general population.


             This Court recognizes “security issues are of particular concern in a
prison setting.” Carey, 61 A.3d at 374. Further, “[a] prison setting involves unique
concerns and security risks.” Commonwealth v. Dugger, 486 A.2d 382, 384 (Pa.
1985).


             DOC needed only a preponderance of the evidence to establish the
public safety exception. OOR determined DOC met its burden of proof. So as not
to disturb the delicate balance of power in a prison setting, id., such security
concerns weigh in favor of protecting the Report Writing Manuals in their entirety.
Accordingly, we defer to OOR’s conclusion here.




                                          8
                    III. Conclusion
For all the foregoing reasons, OOR’s Final Determination is affirmed.




                         ROBERT SIMPSON, Judge




                           9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Fennell,                       :
                       Petitioner     :
                                      :
            v.                        :   No. 1827 C.D. 2015
                                      :
Pennsylvania Department of            :
Corrections,                          :
                       Respondent     :


                                    ORDER

            AND NOW, this 29th day of March, 2016, the final determination of
the Office of Open Records is AFFIRMED.




                                     ROBERT SIMPSON, Judge
