President Judge Katherine B. Emery of the Washington County Court of Common Pleas this week ruled that California Borough must release video from a holding cell in response to a Right-to-Know Request.
Judge Emery’s decision upholds the Final Determination issued by the OOR in June 2016.
To date, few appeals made to the Office of Open Records have involved social media. In one recent case, Davis v. City of Butler Police Department, the requester sought the following social media records (the request has been lightly edited for clarity):
- All posts made by users to the Butler City Police Department and Butler City K9 Fundraiser Facebook pages between Feb. 6, 2016, and Feb. 12, 2016.
- A list of all personnel who operate the Butler City Police Department Facebook page, including full name, salary, and date of hire.
- A list of all users who have been blocked from the Butler City Police Department Facebook page.
The OOR found that the Police Department demonstrated that no responsive records exist regarding the first item. During the appeal, the Department provided the requester with records responsive to the second item.
As to the third item, the OOR directed the Department to provide a screenshot of its Facebook page indicating whether any banned users were listed.
The Department provided the screenshots, but also said in its filing that “it is outside [the OOR’s] authority to direct [the Department] to compile records that are not maintained in the ordinary course of business.” See 65 P.S. § 67.705. The OOR held that the Department did not create or compile a record when it provided the OOR with the requested screenshot from its Facebook page; rather, it produced information from a database which was created by and is under the direct control of the Department.
I predicted in our 2015 Annual Report that the OOR will face more issues involving social media records. This case is a good example.
In a recent appeal, the Office of Open Records confronted the issue of how Pennsylvania’s Right-to-Know Law intersects with the state’s Investigating Grand Jury Act.
The OOR’s Final Determination in Hockeimer v. City of Harrisburg (Docket No.: AP 2015-1793) held that:
“In the instant matter, it is clear that the requested records exist independently of any grand jury investigation. The Request seeks records, including financial records, created by the City and various City personnel over the course of several years for various purposes in relation to the City’s operations. There is no evidence demonstrating that any of the requested records were created for use by the grand jury. Accordingly … the requested records are subject to disclosure under the RTKL.”
The Investigating Grand Jury Act, as a general rule, prohibits “disclosure of matters occurring before the grand jury.” Thus, the meaning of the phrase “occurring before the grand jury” becomes very important in this analysis.
As the Final Determination held, “There is little authority available in Pennsylvania jurisprudence which clarifies the meaning of ‘occurring before the grand jury.’ Consequently, the OOR looks to federal law for guidance.” (The wording of the federal grand jury law is very similar to the wording of Pennsylvania’s.)
Under federal case law, “information does not become a matter occurring before a grand jury simply by being presented to the grand jury, particularly where it was developed independently of the grand jury.” Further, “it has been well-established in this Circuit for over 14 years that if documents exist independently of the grand jury process, they are not matters occurring before the grand jury for purposes of Rule 6(e).” (Federal Rule of Criminal Procedure 6(e) deals with the secrecy of grand jury proceedings.) And, “The mere fact that a particular document is reviewed by a grand jury does not convert it into a ‘matter occurring before a grand jury’ within the meaning of Rule 6(e).”
As a result of this analysis, the OOR ordered the City of Harrisburg to release the requested records.
According to a report on Pennlive.com, the City “will appeal the Office of Open Records ruling with the Dauphin County Court of Common Pleas.”