Austin Nolen

August 4th, 2014

Office of Oen !ecords
Co""on#e$lth %eystone &uilding
400 North 'treet, 4th(loor
)$rris*urg, PA 1+120,0225
oenrecords-$.go/
0e$r 'ir or 1$d$"e,
Pursu$nt to the Pennsyl/$ni$ !ight,to,%no# 2$# 34the 2$#56, 75 P. '. 8 7+.101 9 7+.3104, : $"
$e$ling the $d/erse decisions of the City of Phil$delhi$, !ecords 0e$rt"ent in reg$rds to "y re;uest
nu"*ered CP 2014,0714. 'ecific$lly, : $" $e$ling the #ithholding of the re;uested records ursu$nt to 75
P.'. 8 7+.+083*631+6 <noncri"in$l in/estig$tions=, 75 P.'. 8 7+.+083*63763i63A6 <erson$lly identifying
infor"$tion=, 75 P.'. 87+.+083*63163ii6 <d$tes of *irth> ho"e $ddresses of indi/idu$ls=. A$rt fro" "y $ssertions
th$t the records re;uested $re u*lic, $nd the $*o/e e?e"tions #ere in$rori$tely $lied, : $" $lso
$e$ling the f$ilure of the City of Phil$delhi$, !ecords 0e$rt"ent to "eet their o*lig$tions #hen issuing $
deni$l under 75 P. '. 8 7+.903316.
Ple$se note th$t "y re;uest #$s $rti$lly denied under 75 P.'. 8 7+.+083*63176 , the cri"in$l
in/estig$tions e?e"tion. : $" si"ult$neously $e$ling this deni$l to the $rori$te $uthority.
Att$ched is $ 1e"or$ndu" of 2$# in suort of "y $e$l.
@h$nA you for your ti"e $nd consider$tion in this "$tter,
Austin Nolen
ccB &enC$"in '. 1ishAin
Dnclosures
Page 1
Memorandum of Law in Support of Appeal
in re CP 2014-0614
In this matter, I am challenging the application of the following exemptions to my request by
the City of Philadelphia, Records Department (City!"#
I$ %& P$'$ ( %)$)*+(b"(1)" ,noncriminal in-estigations./
II$ %& P$'$ ( %)$)*+(b"(%"(i"(0" ,personally identifying information./
III$ %& P$'$ (%)$)*+(b"(1"(ii" ,dates of birth/ home addresses of indi-iduals.$
I am also challenging the failure of the City to follow their statutory responsibilities under#
I1$ %& P$ '$ ( %)$2*3(1" ,requiring description of denied record(s".$
4urisdiction
5he 6ffice of 6pen Records is the appropriate -enue for this appeal under %& P$'$ ( %)$11*1(a"(1"$
Please not that I am simultaneously appealing the criminal in-estigation exemption claim to the appropriate
authority, the 6ffice of the District 0ttorney of Philadelphia$
7ac8ground to the 0ppeal
6n 4une 11th, 9*1:, I submitted a request by email to the City for 0ll police incident reports created by
the Ci-il 0ffairs ;nit for the date of <arch 1*th, 9*1:! (see =xhibit 0"$ 6n 4une 1+th, 9*1:, I recei-ed an initial
response informing me that the City would pro-ide a response within 3* days for statutorily -alid reasons (see
=xhibit 7"$ >inally, on 4uly 1+th, I recei-ed a denial of my request (see =xhibit C"$ 5he denial stated, in part#
?our request is denied$ ?our request is denied as see8ing records related to criminal and@or
noncriminal in-estigations$ %& P$'$ ( %)$)*+(b"(1%", (1)"$$$ 0dditionally, your request is denied
to the extent the records requested reflect#
Personally identifying information, including but not limited to home and@or cell phone
numbers, email addresses, social security numbers and payroll numbers$ %& P$'$
Page 9
( %)$)*+(b"(%"(i"(0"$
Dates of birth$ A overnors Offie of Admin! v! Purell, 9*11 Pa$ Commw$ B=CI' %12 (Pa$
Commw$ Dec$ 92, 9*11"/ see also "elaware Co! v! S#aefer, Do$ 9&% C$D$ 9*119*19 Pa$
Commw$ ;npub$ B=CI' 911 (Pa$ Cmwth$ <arch 99, 9*19" (finding that the holding in Purcell
that the dates of birth of state employees were exempt under %& P$'$ (%)$)*+(b"(1" was
equally applicable to county employees"$
5he home addresses of indi-iduals$ %& P$'$ (%)$)*+(b"(1"(ii"$$$ (see =xhibit C"$
5he CityEs response did not include any description of the records requested, as required by %& P$ '$ (
%)$2*3(1"$ I am appealing the use of all exemptions abo-e, as well as the failure to pro-ide the required
description of the requested records$
I$ %& P$'$ ( %)$)*+(b"(1)" ,noncriminal in-estigations.$
%& P$'$ ( %)$)*+(b"(1)" states that record(s" of an agency relating to a noncriminal in-estigation! are
exempt from the Right to Fnow Baw$ 5his exemption is the primary exemption cited by the City to Gustify
withholding the requested records in their entirety/ the other exemptions appear to be secondary$ %& P$'$ (
%)$)*+(a"(1" states that the burden of pro-ing that a record of a Commonwealth agency or local agency is
exempt from public access shall be on the Commonwealth agency or local agency recei-ing a request by a
preponderance of the e-idence$ ! In order to withhold the requested records in their entirety under %& P$'$ (
%)$)*+(b"(1)", the City pro-e, by a preponderance of the e-idence, that these records related to a noncriminal
in-estigation$ Howe-er, I am also required to state the grounds on which I belie-e the requested records are
public, and to meet this requirement as well as to suggest that the preponderance of the e-idence does not in fact
fa-or the City, I pro-ide the following arguments against this exemption$
7lac8Es Begal Dictionary defines in-estigation! as follows# 1$ 5o inquire into (a matter" s$stematiall$/
to ma8e (a suspect" the subGect of a criminal inquiry$$$ 9$ 5o ma8e an official inquiry$! 7lac8Es Baw Dictionary
(2th ed$ 9**2" (emphasis added"$ 5hus, a noncriminal in-estigation would be more specifically defined as a
systematic inquiry into whether a regulation or noncriminal statute was being -iolated$ 5hrough pre-ious
releases of records by the City, I am aware that at least one incident report which is responsi-e to my request
Page 3
does not meet this criteria$ I am spea8ing of an incident report concerning a demonstration on federal property at
)% Dorth %th 'treet in downtown Philadelphia$ 5his incident report was filled out by officers of the Ci-il 0ffairs
;nit who assisted federal authorities with the demonstration$ Ihile the City now claims that this report is related
to a systematic inquiry into whether a regulation was being -iolated, they did not ma8e this same claim when
they released the Daily Complaint 'ummary for the Ci-il 0ffairs ;nit for the date in question, a record which
contained information such as the number of Ci-il 0ffairs 6fficers on scene of the abo-eJmentioned
demonstration and the number of demonstrators arrested (see =xhibit D"$ In fact, they specifically stated that
this type of record is generally in-estigatory and is therefore generally exempt pursuant to %& P$'$ (( %)$)*+(b"
(1%", (1)"$$$ In this instance, howe-er, the requested record happens to not contain in-estigatory information and
the PPD is therefore willing to release it! (see =xhibit ="$
In their response to my earlier request, the City effecti-ely ac8nowledged that the mere reports of
officers conducting crowd control do not rise to the le-el of systematic inquiries into the potential -iolation of a
statute$ Rather than using in-estigati-e methods to determine whether a -iolation of law was occurring, the Ci-il
0ffairs officers were instead in-ol-ed in the mar8edly different tas8 of simultaneously preser-ing the rights of
some indi-iduals to lawfully exercise their >irst 0mendment rights, while also ta8ing into custody those who had
clearly committed a -iolation of federal law or regulation$ 5he incident report concerning this demonstration will
reflect this difference, and thus it is not exempt under %& P$'$ ( %)$)*+(b"(1)"$ 'ince the Ci-il 0ffairs ;nit is the
demonstration management unit of the Philadelphia Police, most or all of the rest of the records responsi-e to my
request should similarly fall outside of the noncriminal in-estigations exemption$
>inally, since the burden of pro-ing an exemption rests with an agency, presumably a claim of
exemption under %& P$'$ ( %)$)*+(b"(1)" must include some information on the suspected noncriminal law or
regulation being -iolated$ 0fter all, one opens an in-estigation because one suspects a specific -iolation has
occurred, is occurring or will occur soon$ Ihile I request that the City pro-ide this information as part of its
e-idence in fa-or of exemption, I must note that it strains credulity for the City to simultaneously claim both the
criminal and noncriminal records exemptions, since presumably e-en the most no-ice in-estigator can tell
whether he or she is in-estigating a criminal or ci-il -iolation$ Rather, it appears that the City is trying to claim
Page :
all the exemptions it can, without regard to how well they actually apply to the records in question$
II$ %& P$'$ ( %)$)*+(b"(%"(i"(0" ,personally identifying information. K III$ %& P$'$ (%)$)*+(b"(1"(ii"
,dates of birth/ home addresses of indi-iduals.$
In regards to personally identifying information and the dates of birth as well as home addresses of
indi-iduals, I do not dispute that this information is indeed exempt$ Howe-er,!if an agency determines that a
public record$$$ contains information which is subGect to access as well as information which is not subGect to
access, the agencyLs response shall grant access to the information which is subGect to access and deny access to
the information which is not subGect to access$ ! %& P$'$ ( %)$)*%$ In this case, such information should clearly
be able to be redacted$ I also note that, in the letter denying my request, the City stated in regards to personally
identifying information and the dates of birth as well as home addresses of indi-iduals that such information is
commonly included on police incident reports! (see =xhibit C"$ Dot only does this ignore the redaction
requirement, it is another seeming indication that the City, rather than re-iewing the responsi-e records and
determining which exemptions apply, is grasping at exemptions that commonly! apply to the requested records,
contrary to the letter and intent of the Baw$
I1$ %& P$ '$ ( %)$2*3(1" ,requiring description of denied record(s".$
If an agencyLs response is a denial of a written request for access, whether in whole or in part, the denial
shall be issued in writing and shall include#$$$ 0 description of the record requested$ ! %& P$'$ ( %)$2*3 J %& P$'$ (
%)$2*3(1"$ 5he text of this part of the statute is ambiguous$ 'ince it is ambiguous, it is open to interpretation
based on legislati-e intent, per 1 Pa$C$'$ ( 1291$ Pursuant 1 Pa$C$'$ ( 1299(1", in see8ing to understand
legislati-e intent, we may assume that the Aeneral 0ssembly does not intend a result that is absurd$$$! It seems
patently absurd that the Aeneral 0ssembly would ha-e required an agency to merely parrot bac8 the words of a
request to a requester, who, ha-ing written the request, is presumably already quite familiar with its phrasing$
7eyond the absurdity of a claim that %& P$'$ ( %)$2*3(1" merely requires an agency to parrot the
requesterEs own language, there is a substantial reason to belie-e that the intent was to require an agency to
Page &
pro-ide a log! or index! of denied records$ 0t the federal le-el, in court decisions about the >reedom of
Information 0ct, such logs or indexes ha-e been found to be crucial for le-eling the playing field between
requesters and agencies by allowing requesters to more fully assess the applicability of the claimed exemptions
to the documents in question, while not treading on the right of the agency to withhold exempt material$ 'ee
%au&#n v! 'osen, :+: >$9d +9* (D$C$ Cir$ 12)3"/ Campai&n for 'esponsi(le )ransplantation v! *"A, 912 >$
'upp$ 9d 1*%, 11% (D$D$C$ 9**9"/ +udiial ,at#- .n! v! *"A, ::2 >$3d 1:1, 1:% (D$C$ Cir$ 9**%", among
others$ 'ince the 0ct shares the >reedom of Information 0ctEs presumption of openness ,cf$ /owlin& v! OO', 22*
0$9d +13 (Pa$ Commw$ 9*1*" to "ep0t of Air *ore v! 'ose, :9& ;' 3&9 (12)%"., the use of descripti-e logs to
gi-e requesters a fair playing field on which to exercise appellate remedies shares the same importance under
both laws$ 5he failure to pro-ide a log in this case thus contra-enes the intent of the 0ct$ >inally, please note that
while this is not a claim under %& P$'$ ( %)$11*1, I ha-e already addressed my grounds for appeal under 'ection
11*1 abo-e, and thus this portion of my appeal should be considered as well, e-en though it alone would not be
sufficient$
Prayer for Relief
In consideration of the abo-e pleading, I request that the 6ffice of 6pen Records issue a final
determination requiring the release of copies of the responsi-e records, with proper redactions where
necessary, and requiring as well that these records, both those denied in part and any still denied in
whole, be accompanied by a log! or index! describing each record, as required by %& P$'$ ( %)$2*3(1"$
Respectfully submitted this day of 0ugust :th, 9*1:,
0ustin Dolen
=xhibit 0
STANDARD RIGHT-TO-KNOW REQUEST FORM
DATE REQUESTED: _________________
REQUEST SUBMITTED BY: E-MAIL U.S. MAIL FAX IN-PERSON
REQUEST SUBMITTED TO (Agency name & address):__________________________________________
________________________________________________________________________________________
NAME OF REQUESTER :___________________________________________________________________
STREET ADDRESS: __________________________________________________________
CITY/STATE/COUNTY/ZIP(Required): __________________________________
TELEPHONE (Optional):_____________________ EMAIL (optional):_____________________________
RECORDS REQUESTED: *Provide as much specific detail as possible so the agency can identify the information.
Please use additional sheets if necessary
DO YOU WANT COPIES? YES or NO
DO YOU WANT TO INSPECT THE RECORDS? YES or NO
DO YOU WANT CERTIFIED COPIES OF RECORDS? YES or NO
DO YOU WANT TO BE NOTIFIED IN ADVANCE IF THE COST EXCEEDS $100? YES or NO
** PLEASE NOTE: RETAIN A COPY OF THIS REQUEST FOR YOUR FILES **
** IT IS A REQUIRED DOCUMENT IF YOU WOULD NEED TO FILE AN APPEAL **
____________________________________________________________________________
FOR AGENCY USE ONLY
OPEN-RECORDS OFFICER:
I have provided notice to appropriate third parties and given them an opportunity to object to this request
DATE RECEIVED BY THE AGENCY:
AGENCY FIVE (5) BUSINESS DAY RESPONSE DUE:
**Public bodies may fill anonymous verbal or written requests. If the requestor wishes to pursue the relief and remedies
provided for in this Act, the request must be in writing. (Section 702.) Written requests need not include an explanation
why information is sought or the intended use of the information unless otherwise required by law. (Section 703.)
June 11th, 2014
City of Philadelphia - Records Department
Joan Decker, Commissioner, Room 156 City Hall, Philadelphia, PA 19107
Austin Nolen
publicrecords@johntowery.com
I. All police incident reports created by the Civil Affairs Unit for the date of March 10th, 2014.
Yes to copies, no to inspection, no to certified copies, yes to advance notification.

=xhibit 7
LAW DEPARTMENT
ONE PARKWAY BUILDING
1515 ARCH STREET
PHILADELPHIA, PA 19102

Shelley R. Smith
City Solicitor

Benjamin S. Mishkin
Assistant City Solicitor
(215) 683-5022 (Tel.)
(215) 683-5069 (fax)
Benjamin.Mishkin@phila.gov

CITY OF PHILADELPHIA











J une 18, 2014

VIA ELECTONIC MAIL

Austin Nolen
publicrecords@johntowery.com

Re: Nolen CP 2014-0614

Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia with your request for information. A copy of your
request is attached.

Please note at the outset that requests for records to state and local agencies in Pennsylvania are
generally governed by the Commonwealth's Right to Know Act ("Act"), 65 P.S. 67.101-67.3104.

Be advised that we will be asserting the City of Philadelphias right to an additional thirty (30) calendar
days to review the request as provided for by the Act. This right is being asserted for the following reasons:

(a) Bona fide staffing limitations (in retrieving and reviewing the record(s) requested);
(b) A legal review is necessary to determine whether the record(s) is a record(s) subject to access
under the Act;
(c) To determine if the request requires the redaction of a public record(s);
(d) The extent or nature of the request precludes a response within the required time period.

We will contact you regarding this request within thirty (30) calendar days as required by law.

Respectfully,



Benjamin S. Mishkin
Assistant City Solicitor


=xhibit C
LAW DEPARTMENT
ONE PARKWAY BUILDING
1515 ARCH STREET
PHILADELPHIA, PA 19102

Shelley R. Smith
City Solicitor

Benjamin S. Mishkin
Assistant City Solicitor
(215) 683-5022
(215) 683-5069 (fax)
Benjamin.Mishkin@phila.gov

CITY OF PHILADELPHIA











July 18, 2014


VIA ELECTRONIC MAIL

Austin Nolen
publicrecords@johntowery.com

Re: Nolen CP 2014-0614

Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia (City) with your request for information
pursuant to the Pennsylvania Right-To-Know Law, 65 P.S. 67.101 et seq., (the Act or RTKL).

On June 11, 2014, the City received your request for all police incident reports created by the
Civil Affairs Unit for the date of March 10, 2014.

On June 18, 2014, the City informed you that it would require up to an additional thirty (30)
days to respond to your request. This constitutes the Citys response to your request.

Your request is denied.

Your request is denied as seeking records related to criminal and/or noncriminal investigations.
65 P.S. 67.708(b)(16), (17). See Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa.
Commw. 2010) (finding police incident report exempt from disclosure pursuant to Section 708(b)(16)).
Additionally, your request is denied to the extent the records requested reflect:

Personally identifying information, including but not limited to home and/or cell phone
numbers, email addresses, social security numbers and payroll numbers. 65 P.S.
67.708(b)(6)(i)(A).

Dates of birth. Governors Office of Admin. v. Purcell, 2011 Pa. Commw. LEXIS 619 (Pa.
Commw. Dec. 29, 2011); see also Delaware Co. v. Schaefer, No. 256 C.D. 20112012 Pa.
Commw. Unpub. LEXIS 211 (Pa. Cmwth. March 22, 2012) (finding that the holding in Purcell
that the dates of birth of state employees were exempt under 65 P.S. 67.708(b)(1)(ii) was
equally applicable to county employees).

The home addresses of individuals. 65 P.S. 67.708(b)(1)(ii). The City further notes that the
release of home addresses has constitutional privacy implications under both the United States
and Pennsylvania Constitutions. Pa. Const. Article I, 1 and 8; United States Constitution.
See, e.g., Pa. State Educ. Ass'n v. Dep't of Cmty. & Econ. Dev., 981 A.2d 383, 386 (Pa.
Commw. 2009) (entering preliminary injunction barring release of home addresses of public
school employees finding that public disclosure of Employees home addresses would
constitute immediate and irreparable harm to Employees right to privacy), affd Pa. State
Educ. Ass'n v. Commonwealth, 2 A.3d 558, 589 (Pa. 2010); see also Pa. State Educ. Ass'n v.
Commonwealth, No. 195 MM 2010, 2010 Pa. LEXIS 2520 (Pa. Nov. 1, 2010) (staying
Commonwealth Court Order pending disposition of the appellants appeal to the
Pennsylvania Supreme Court and holding that the entry of the preliminary injunction . . . shall
remain in effect.); Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (holding that case
law reflect[s] the general understanding that home addresses are entitled to some privacy
protection, whether or not so required by statute and that sex offenders have a non-trivial
privacy interest in their home addresses).

The above information is commonly included on police incident reports.

Subject to, and without waiving the foregoing, the City exercises its discretion to release certain
redacted police incident reports outside the Right to Know Act directly from Records upon payment of
the applicable fee. More information is available at:
http://www.phila.gov/records/PoliceFire/Reports.html. As a convenience attached is a Police Incident
Request Form (82-47) , which may be used to request a police incident report from Records. Request
forms for police incident reports must be submitted to:

The Department of Records
Incident Reports
Room 167, City Hall
Philadelphia, PA 19107
(215) 686-2266

District Control Numbers and all applicable fees must be included with your request form. Please be
further advised that the Philadelphia Police Department will require specific locations (street
addresses) and times, in addition to a specific date, in order to provide you with District Control
Numbers.

To appeal the denial pursuant to 65 P.S. 67.708(b)(16) regarding records relating to a
criminal investigation, you may file an appeal with the Philadelphia District Attorneys Office as
provided in 65 P.S. 67.1101 and 65 P.S. 503(d)(2). You have 15 business days from the mailing
date of the Citys response to challenge the response. Please direct any appeal to DA Appeals Officer,
Attn: Priya Travassoss, Three South Penn Square, Philadelphia PA 19107-3499 and copy the
undersigned.

Should you wish to contest any part of this decision, other than the denial pursuant to 65
P.S. 67.708(b)(16) regarding records relating to a criminal investigation, you may file an
appeal with the Office of Open records as provided for in 65 P.S. 67.1101. You have 15
business days from the mailing date of the Citys response to challenge the response. Please
direct any appeal to the Office of Open Records, Commonwealth Keystone Building, 400 North
Street, 4th Floor, Harrisburg, PA 17120-0225 and copy the undersigned.

Please be advised that this correspondence will serve to close this record with our office as
permitted by law.

Respectfully submitted,




Benjamin S. Mishkin

cc: Lt. Edward Egenlauf, Open Records Officer, Philadelphia Police Department



=xhibit D
=xhibit =
LAW DEPARTMENT
ONE PARKWAY BUILDING
1515 ARCH STREET
PHILADELPHIA, PA 19102

Shelley R. Smith
City Solicitor

Katharine L. Janoski
Assistant City Solicitor
(215) 683-5025 (Tel.)
(215) 683-5069 (fax)
Katharine.Janoski@phila.gov

CITY OF PHILADELPHIA













April 21, 2014

VIA ELECTRONIC MAIL ONLY

Austin Nolen
publicrecords@johntowery.com

Re: Nolen CP 2014-0299

Dear Mr. Nolen:

Thank you for writing to the City of Philadelphia (the City) Police Department (PPD) with
your request pursuant to the Pennsylvania Right-To-Know Law, 65 P.S. 67.101 et seq. (the Act or
RTKL).

On March 10, 2014, the PPD received your request for the following information:

I. Any and all records related to the training session for the Pledge of Resistance
demonstration and civil disobedience action which occurred on March 8th and March 10th,
2014 at 320 Arch Street Philadelphia, PA, including the following records:

a. Any records containing the observations, including photographs, videos, audio
recordings and notes, of Philadelphia Police Department (PPD) officers and
detectives in attendance at the above-mentioned public training or who observed the
attendees;

II. Any and all records related to the Pledge of Resistance demonstration and civil
disobedience action which occurred on March 10th, 2014 at the William J Green Federal
Building, 600 Arch Street, Philadelphia, PA, including the following records:

a. Operational and staffing plans for PPDs response to the action;

b. Photographs, videos and notes taken by PPD officers and detectives which
document the action, including audio-visual records created by equipment in
vehicles;

2

c. Intelligence product created or maintained by PPD related to the action, including
but not limited to assessments or Situation Information Reports generated by the
Federal Bureau of Investigation;

d. Incident reports or criminal citations written by PPD officers related to the action;

e. Administrative reviews, major incident reports, after-action reports or any similar
document created in the aftermath of the action by PPD.

On March 17, 2014, the City informed you that it would require up to an additional thirty (30)
days to respond to your requests. However, on April 16, 17, and 18, the Law Departments office
building was closed due to flooding. The undersigned counsel did not have access to any records and
could not respond to your request or ask for an additional extension. This constitutes the Citys
response to your requests.

Your request is granted in part and denied in part, as described more fully below. At the
outset, the portions of your request seeking any and all records related to and any records
containing various subject matters are not sufficiently specific to enable the City to determine
specifically what records are being requested. The Act requires, among other things, that a written
request identify or describe the records sought with sufficient specificity to enable the agency to
ascertain which records are being requested . . . . 65 P.S. 67.703.
1
The requirement of specificity is
necessary to (1) ensure that a requestor provides enough information so that an agency can determine
whether to grant or deny the request[;] Nanayakkara v. Casella, 681 A.2d 857, 859-60 (Pa. Commw.
1996), and (2) to prevent agencies from suffering undue interference and obstruction of their daily
functions; . . . [which] would be unavoidable if agency officials always could be subjected to broad and
unlimited requests for documents and records. Mooney v. Temple Univ. of the Commonwealth Sys. of
Higher Educ. Bd. of Trustees, 292 A.2d 395, 397 n.8 (Pa. 1972) (requests for inspection [must] be
specific and particular seeking disclosure of named documents or records rather than broad and
unlimited requests for undefined bodies of documents or records); see also, e.g., Arduino v. Borough
of Dunmore, 720 A.2d 827, 831 (Pa. Commw. 1998) (holding that a request for all records related to
the disbursement of the funds for [certain] public projects lacked sufficient specificity), appeal
denied, 741 A.2d 195 (Pa. 1992); Hunt. v. Pa. Dept of Corr., 698 A.2d 147, 149 (Pa. Commw. 1997)
(holding that requests, including a request for all documents given by Department of Corrections to
inmate and by inmate to Department, lacked sufficient specificity).

Pennsylvania courts have compared such broad, sweeping requests to discovery-type requests
which, while potentially proper in the context of civil litigation, are improper under the Act. Berman
v. Pa. Convention Ctr. Auth., 901 A.2d 1085, 1089 (Pa. Commw. 2006) (holding that request for
[t]he most recent plans, construction, and design documents relating to the convention center
expansion was more in the nature of a discovery request than a proper request for public records);
Associated Builders and Contractors, Inc. v. Pa. Dept of Gen Servs., 747 A.2d 962, 965-66 (Pa.

1
This language is identical to sufficient specificity requirement in 2(c) of the prior Right-to-Know Law, 65 P.S. 66.1, et
seq. Accordingly, the case law interpreting this language in the context of the old Right-to-Know Law remains binding.
Dep't of Conservation & Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. 2010) (interpreting
language in the new Act by relying on prior precedent holding that [t]he language in the two definitions is virtually
identical. Faced with a prior judicial interpretation . . . .by . . . the Pennsylvania Supreme Court of the
account/voucher/contract language in the RTKL, even though issued in the context of the Old Law, we are not at liberty
here to ascribe a different meaning to the same language.).

3
Commw. 2000) (holding that requests akin to document requests under the civil discovery rules, i.e.,
any and all documents relating to [subject matter] lack sufficient specificity); accord PSP v. OOR,
995 A.2d. 515, 517 (Pa. Commw. 2010) (The portion of the request seeking any and all records, files
or communications [concerning subject matter] is insufficiently specific for the PSP to respond to the
request.). Such broad requests have been, and will be, denied.

Moreover, both the Commonwealth Court and the Office of Open Records have held that when
a request is susceptible to two different meanings . . . the necessary clarity for providing responsive
records is absent. See Rhoads v. Western Berks Water Authority, AP 2010-1184 (OOR Jan. 13,
2011); accord Pa. Hous. Fin. Agency v. Ali, 43 A.3d 532, 535 (Pa. Commw. 2012). The City is not
required to guess what records are being requested. Your requests for various records related to a
range of terms are unclear and subject to multiple interpretations. As the Office of Open Records has
explained, the City is not required to use its judgment to determine what is meant by a record of,
related to, or concerning a subject. Woolson v. City of Philadelphia, AP 2012-1785 (Pa. OOR
Dec. 7, 2012) (finding requests for books, papers, photographs, machine readable materials, electronic
records, correspondence, notes, and other documentary materials concerning, related to or referencing
a property insufficiently specific). Depending on the degree of relation your request could encompass
any one of a number of different subject matters or records.

As your request is insufficiently specific, the City is unable to assert all applicable grounds of
denial and reserves the right to do so if your request is construed as seeking specific records after a
review of such records. Subject to, and without waiving the foregoing objections, your request could
encompass various exempt records and it is specifically denied to the extent that you seek:

Records the disclosure of which would be reasonably likely to result in a substantial and
demonstrable risk of physical harm to or the personal security of an individual pursuant
to 65 P.S. 67.708(b)(1)(ii).

Records maintained by an agency in connection with the military, homeland security,
national defense, law enforcement or other public safety activity that if disclosed would
be reasonably likely to jeopardize or threaten public safety or preparedness or public
protection activity . . . under 65 P.S. 67.708(b)(2).

Records reflecting [1] internal predecisional deliberations of an agency, its members,
employees or officials or [2] predecisional deliberations between agency members,
employees or officials and members, employees, or officials of another agency . . . or
[3] any research, memos, or other documents used in predecisional deliberations. 65
P.S. 67.708(b)(10)(i)(A).

Notes or working papers exempt from disclosure pursuant to 65 P.S. 67.708(b)(12).

Records relating to a criminal investigation exempt from disclosure pursuant to 65 P.S.
67.708(b)(16)
2
; see also Criminal History Record Information Act (CHRIA), 18 Pa.
C.S. 9101-9183 (protecting from disclosure intelligence information,
investigative information and treatment information).

2
To the extent the record requested relates to an investigation that is noncriminal in nature your request is further denied
pursuant to Section 708(b)(17).


4

Furthermore, your request on its face asks for records exempt pursuant to the above-stated
grounds for denial.

Subject to and without waiving the forgoing, the only record responsive to the remaining
portions of your request is the attached Daily Complaint Summary from March 10, 2014. This type of
record is generally investigatory and is therefore generally exempt pursuant to 65 P.S.
67.708(b)(16), (17). In this instance, however, the requested record happens to not contain
investigatory information and the PPD is therefore willing to release it. Attached please find the
requested record. There are no other records responsive to your request. It is not a denial of access
under the Act if the records requested do not exist. Cf. Jenkins vs. Pennsylvania Department of State,
AP 2009-0065 (Pa. OOR April 2, 2009).

Should you wish to contest any part of this decision, you may file an appeal with the Office of
Open records as provided for in 65 P.S. 67.1101. You have 15 business days from the date your
requests were deemed denied by operation of law.
3
Please direct any appeal to the Office of Open
Records, Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, PA 17120-0225
and copy the undersigned open records officer.
4


Please be advised that this response will close your request with our office as permitted by law.

Respectfully submitted,



Katharine L. Janoski
Assistant City Solicitor


Attachment

cc: Lt. Edward Egenlauf, Open Records Officer, Philadelphia Police Department


3
Your requests were deemed denied on April 16, 2014, due to a flood in the Law Departments office. See 65 P.S.
67.506(b)(1)(i) (An agency may deny a requester access . . . when timely access is not possible due to fire, flood or other
disaster . . . .).
4
To appeal the reservation of denial pursuant to 65 P.S. 67.708(b)(16) regarding records relating to a criminal
investigation, you may file an appeal with the Philadelphia District Attorneys Office as provided in 65 P.S. 67.1101 and
65 P.S. 503(d)(2). You have 15 business days from the mailing date of the Citys response to challenge the response.
Please direct any appeal to DA Appeals Officer, Attn: Brad Bender, Three South Penn Square, Philadelphia PA 19107-
3499 and copy the undersigned.