State/local policies re: hostages within correctional facilities (Department of Corrections)

Dear Mr. Lipton,

This email acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on October 23, 2015. Therefore, under the RTKL, a written response to your request is due on or before October 30, 2015. This letter is provided pursuant to that requirement. This letter is an interim response to your request. A final response will be sent at a later time as outlined below.

You are hereby notified that, for the reason set forth below, the Department will require an additional 30 calendar days, i.e. until November 27, 2015, in which to provide a final written response to your request:

· A legal review is necessary to determine whether the record requested is subject to access under the Act.

At this time, the Department is unable to provide you with an estimated cost to fulfill your current request if it is granted. Any actual or estimated fees will be identified in the Department’s future response.

Sincerely,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov<http://www.cor.pa.gov>

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ATTORNEY WORK PRODUCT
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Dear Mr. Lipton,

This email acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on October 23, 2015.

We sent our response on November 19th. I will resend this. Let me know if you do not receive it.

Thank you,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov<http://www.cor.pa.gov>

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege.

Below is the response to your request sent on November 19th.

Thank you,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov<http://www.cor.pa.gov>

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege.

From: Filkosky, Andrew
Sent: Thursday, November 19, 2015 9:19 AM
To: 'requests@muckrock.com' <requests@muckrock.com>
Subject: RE: Right to Know Request: State/local policies re: hostages within correctional facilities (Department of Corrections)/RTKL 1978-15

Dear Mr. Lipton,

This email acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on October 23, 2015. On October 26, 2015, an interim response was sent to you extending the final response date to November 27, 2015.

To the extent that your request for “All policies, procedures, memorandums of agreements, other memos, directives, communications, occurrence reports, and any other relevant materials regarding the reporting, negotiations, control, aftermath, and general treatment of hostages taken or individuals restrained in a hostage-like manner by individuals detained or under the supervision of facilities maintained under the jurisdiction of this agency, including juvenile, local, and private facilities, if applicable” is a request for Policy 6.7.2 (Special Response Teams), your request is denied for the following reasons:

The requested records fall within the personal security exemption of the RTKL. 65 P.S. § 67.708(b)(1)(ii). That section exempts from access any record 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. Id. See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa. Cmwlth. 1998); Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

The requested records fall within an exemption of the RTKL. Specifically, the RTKL excludes records maintained by an agency in connection with law enforcement or other public safety activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or a public protection activity. 65 P.S. § 67.708(b)(2). The requested records are records maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates. The disclosure of the requested records would threaten public safety and the Department’s public protection activities in maintaining safe and secure correctional institutions by allowing inmates or others to access information that can be used to undermine the Department’s security procedures. Therefore, disclosure of these types of records is excluded under the RTKL. Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

The requested records fall within the criminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to or resulting in a criminal investigation, including, but not limited to: complaints of potential criminal conduct other than a private criminal complaint; investigative materials, notes, correspondence, videos and reports; records that include the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised; records that includes information made confidential by law or court order; victim information, including any information that would jeopardize the safety of the victim; and records that, if disclosed, would reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges, deprive a person of the right to a fair trial or an impartial adjudication, impair the ability to locate a defendant or codefendant, hinder an agency's ability to secure an arrest, prosecution or conviction or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(16). Your request implicates such information and access is denied.

The requested records fall within the noncriminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to a noncriminal investigation, including, but not limited to: complaints submitted to an agency; investigative materials, notes, correspondence and reports; records that include the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law; records that include information made confidential by law; work papers underlying an audit; and records that, if disclosed, would reveal the institution, progress or result of an agency investigation, deprive a person of the right to an impartial adjudication; constitute an unwarranted invasion of privacy, hinder an agency's ability to secure an administrative or civil sanction, or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(17). See Amro v Office of AG, 783 A.2d 897, (Pa. Cmwlth. 2001); Senk v. Commonwealth, 521 A.2d 532 (Pa. Cmwlth. 1987). Your request implicates such information and access is denied.

To the extent that your request for “All policies, procedures, memorandums of agreements, other memos, directives, communications, occurrence reports, and any other relevant materials regarding the reporting, negotiations, control, aftermath, and general treatment of hostages taken or individuals restrained in a hostage-like manner by individuals detained or under the supervision of facilities maintained under the jurisdiction of this agency, including juvenile, local, and private facilities, if applicable” is a request for records other than Policy 6.7.2 (Special Response Teams), your request is denied for the following reason:

Your request fails to identify or describe the records that you seek with sufficient specificity to enable the RTKL Office to ascertain which records that you seek. Consequently, your request is denied pursuant to 65 P.S. § 67.703.

Your request contains no limitation with regard to time, persons, and subject matter. This request does not provide sufficient descriptive information in any or all of the categories noted by the Office of Open Records in Hocker v. Young Scholars, OOR Dkt. AP 2009-0901, to enable the Department to determine what information is sought and to locate responsive records. Under both laws, Pennsylvania’s courts have consistently held that insufficiently specific requests can be properly denied. See, Anderson v. City of Philadelphia, OOR Docket # 2009-0618 (9/25/09); Nanayakkara v. Casella, 681 A.2d 857, 859-60 (Pa.Cmwlth. 1996); Associated Builders & Contractors, Inc., v. Pennsylvania Department of General Services, 747 A.2d 962 (Pa.Cmwlth. 2000).

In addition, Section 703 of the RTKL precludes requests which require “files to be reviewed and judgments made as to the relation of the documents to the specific request.” Department of Environmental Protection v. Legere, 50 A.3d 260, 264 (Pa. Cmwlth. 2012). Rather, “a clearly-defined universe of documents” must be requested such that “there are no judgments to be made as to whether the documents are ‘related’ to the request” because the documents either do or do not fall within the ambit of the request. Id. at 265. In determining whether a request satisfies Section 703 of the RTKL, “the specificity of a request must be construed in the request’s context, rather than envisioning everything the request might conceivably encompass.” Askew v. Pennsylvania Office of Governor, 65 A.3d 989, 992 (Pa. Cmwlth.) (per curiam), appeal denied, 621 Pa. 660, 72 A.3d 604 (Pa. 2013).

Further, many of the possible records may be exempt for the following reasons:

The requested records fall within the personal security exemption of the RTKL. 65 P.S. § 67.708(b)(1)(ii). That section exempts from access any record 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. Id. See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa. Cmwlth. 1998); Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

The requested records fall within an exemption of the RTKL. Specifically, the RTKL excludes records maintained by an agency in connection with law enforcement or other public safety activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or a public protection activity. 65 P.S. § 67.708(b)(2). The requested records are records maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates. The disclosure of the requested records would threaten public safety and the Department’s public protection activities in maintaining safe and secure correctional institutions by allowing inmates or others to access information that can be used to undermine the Department’s security procedures. Therefore, disclosure of these types of records is excluded under the RTKL. Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

The requested records fall within the criminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to or resulting in a criminal investigation, including, but not limited to: complaints of potential criminal conduct other than a private criminal complaint; investigative materials, notes, correspondence, videos and reports; records that include the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised; records that includes information made confidential by law or court order; victim information, including any information that would jeopardize the safety of the victim; and records that, if disclosed, would reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges, deprive a person of the right to a fair trial or an impartial adjudication, impair the ability to locate a defendant or codefendant, hinder an agency's ability to secure an arrest, prosecution or conviction or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(16). Your request implicates such information and access is denied.

The requested records fall within the noncriminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to a noncriminal investigation, including, but not limited to: complaints submitted to an agency; investigative materials, notes, correspondence and reports; records that include the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law; records that include information made confidential by law; work papers underlying an audit; and records that, if disclosed, would reveal the institution, progress or result of an agency investigation, deprive a person of the right to an impartial adjudication; constitute an unwarranted invasion of privacy, hinder an agency's ability to secure an administrative or civil sanction, or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(17). See Amro v Office of AG, 783 A.2d 897, (Pa. Cmwlth. 2001); Senk v. Commonwealth, 521 A.2d 532 (Pa. Cmwlth. 1987). Your request implicates such information and access is denied.

You are not precluded from refining and submitting a new request with more specific detail.

You have a right to appeal this denial of information in writing to the Executive Director, Office of Open Records (OOR), Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, Pennsylvania 17120. If you choose to file an appeal you must do so within 15 business days of the mailing date of this response and send to the OOR:

1) this response; 2) your request; and 3) the reason why you think the agency is wrong in its reasons for saying that the record is not public (a statement that addresses any ground stated by the agency for the denial). If the agency gave several reasons why the record is not public, state which ones you think were wrong.

Also, the OOR has an appeal form available on the OOR website at:

https://www.dced.state.pa.us/public/oor/appealformgeneral.pdf.

Sincerely,


Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov


PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege.