DVIC Records of CSX Train Derailment, Delaware River Oil Spills

Dustin Slaughter filed this request with the Philadelphia Police Department of Philadelphia, PA.
Tracking # 2014-0105 ; Appeal docket AP 2014-0428
Est. Completion None
Status
Withdrawn

Communications

From: Dustin Slaughter

Hello,

Please find attached and below a request for public records per the Pennsylvania Right to Know Act. Please confirm receipt.

Thank you.

========

To Whom It May Concern:

Pursuant to Pennsylvania Right to Know Act, I hereby request the following records:

All disaster assessments, bulletins, and related intelligence products created by the Delaware Valley Intelligence Center concerning:

1) The 20 January 2014 CSX train derailment on the Schuylkill Arsenal Railroad Bridge;

2) The 23 January 2014 Sunoco facility spill in South Philadelphia;

3) The 27 January 2014 oil spill in Trainor, Delaware County.

I expect to be provided with all segregable portions of otherwise exempt material. Please separately state your reasons for not invoking your discretionary powers to release requested documents in the public interest, as this request seeks to allow the public a glimpse into the oft-touted "all-hazards" facet of the fusion center model.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Dustin Slaughter

From: Katharine Janoski

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 1, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2014-0105 .

Thank you for your help.

From: Katharine Janoski

Dear Mr. Slaughter:

The City is continuing to process your request.

Respectfully,

Katharine L. Janoski
Assistant City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5025 (direct dial)
(215) 683-5069 (fax)
katharine.janoski@phila.gov

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Katharine Janoski

From: Dustin Slaughter

Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225

DA Appeals Officer
Three South Penn Square
Philadelphia, PA 19107-3499

This is a formal appeal to the Philadelphia Police Department's denial of my Right-to-Know request originally submitted on 3 February 2014.

The request sought the following items:

All disaster assessments, bulletins, and related intelligence products created by the Delaware Valley Intelligence Center concerning:

1) The 20 January 2014 CSX train derailment on the Schuylkill Arsenal Railroad Bridge;

2) The 23 January 2014 Sunoco facility spill in South Philadelphia;

3) The 27 January 2014 oil spill in Trainor, Delaware County.

The documents sought are public records under the Right-to-Know Law, as they are defined by the Act because the records sought are "information...that documents...activity of an agency and that is created, received or retained...in connection with [the] activity of the agency." (67.102). Additionally, the documents sought are public records because they are held by a "local agency" as defined by the Act and are not exempt under section 708, exempt under Federal or State law, nor protected by privilege. (67.102)

After exercising its statutory right to a 30-day extension, on 12 March 2014 the PPD and City responded by denying my request, claiming a number of exceptions for public records, specifically under 67.708(b)(16), (b)(17), 67.703, and 18 Pa. C.S. §§ 9101-9183 (CHRIA). I am appealing the denial of this request on all of these grounds.

The Act places the "burden of proving that a record...is exempt from public access" on the agency denying a request, and the burden must be met by "a preponderance of the evidence." 67.708(a)(1). The PPD clearly has not met this burden.

The PPD simply recites the aforementioned statutory language without any further explanation, which is obviously not sufficient under the Act. See: Signature Info. Solutions, LLC v Aston Twp., 995 A.2d 510, 513 (Pa. Commw. 2010). By failing to provide any justification in support of the claimed exceptions, including those pertaining to 67.708(b) and CHRIA, PPD has failed to meet its burden.

Furthermore, and strangely, the PPD cites the request's lack of specificity as grounds for denial while also claiming there no documents responsive to my request, and failed to include an attestation of non-existence that would certify under penalty of law that the requested documents in fact do not exist. This also begs the question: if my request was not specific enough, how would the PPD know whether pertinent documents exist to begin with?

Lastly, the Delaware Valley Intelligence Center is described quite frequently as not only a counter-terrorism tool, but a center for intelligence gathering and dissemination on a wide variety of threats ("All Hazards, All Crimes" http://stayalertnow.com/about-dvic), including man-made incidents such as oil spills and train derailments. In addition, Philadelphia taxpayers, in part, provide funding for the DVIC's continued operations. As such, the PPD has a responsibility to inform the public about how well a taxpayer-funded facility is protecting the community from threats.

Thank you in advance for your cooperation and assistance, and I look forward to both binding Determinations within 30 calendar days per the Act.

Sincerely,
Dustin Slaughter

From: Henry, Faith

Good Afternoon,

Please see the attached appeal that has been filed with the Office of Open Records. This matter has been assigned to an Appeals Officer (see page 4 of attachment for contact information). Please forward all future correspondence directly to the Appeals Officer and all other parties. Thank you!

[cid:image001.jpg@01CF4446.F9471B20]

Faith Henry
Administrative Officer
Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | fahenry@pa.gov<mailto:fahenry@pa.gov>
http://openrecords.state.pa.us<http://openrecords.state.pa.us/>
Confidentiality Notice: This electronic communication is privileged and confidential and is intended only for the party to whom it is addressed. If received in error, please return to sender.

From: Priya Travassos

Dear Ms. Janoski:

Please see the attached correspondence.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov

From: Katharine Janoski

Dear Appeals Officer Lorah:

Attached please find the City's response to the above-referenced appeal.

Thank you for your time and attention in this matter.

Respectfully,

Katharine L. Janoski
Assistant City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5025 (direct dial)
(215) 683-5069 (fax)
katharine.janoski@phila.gov<mailto:katharine.janoski@phila.gov>

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Lorah, Benjamin

Dear Parties:

Attached, please find the final determination for the above captioned matter.

Sincerely,

Ben Lorah

[cid:image001.jpg@01CF5D55.094B5910]

Benjamin Lorah
Attorney
Office of Open Records
(717) 346-9903
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225
http://openrecords.state.pa.us<http://openrecords.state.pa.us/>
Confidentiality Notice: This electronic communication is privileged and confidential and is intended only for the party to whom it is addressed. If received in error, please return to sender.

From: Katharine Janoski

Dear Ms. Travassos:

I apologize for the late reply in this case; it was inadvertent. In support of the City's position in the instant appeal, I respectfully submit, and incorporate as though fully set forth herein, the attached response that the City submitted to the Office of Open Records ("OOR") in the requester's related appeal before that agency. In that appeal, AP 2014-0428, the City provided an affidavit attesting that the requested records do not exist. However, even if the records were to exist, the City submits that the request should be denied to the extent that such records constitute criminal investigatory records.

In addition, the City submits the OOR's Final Determination dated April 21, 2014, in AP 2014-0428, which denied in part and dismissed in part that appeal.

Thank you for your time and consideration of this matter.

Respectfully,

Katharine L. Janoski
Assistant City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5025 (direct dial)
(215) 683-5069 (fax)
katharine.janoski@phila.gov<mailto:katharine.janoski@phila.gov>

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Priya Travassos

Dear Ms. Janoski:

Thank you for the City's submission; I will consider it along with the materials submitted by the petitioner/appellant. At this time, I anticipate issuing a decision on May 7, 2014.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

From: Priya Travassos

Dear Mr. Slaughter and Ms. Janoski:

The decision in this matter will be issued no later than Friday, May 9, 2014 (not today, as previously estimated).

Thank you.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

From: Priya Travassos

Dear Mr. Slaughter and Ms. Janoski:

Please see the attached final decision.

Thank you.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

From: Priya Travassos

Dear Mr. Mishkin:

Please see the attached correspondence.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov

From: Benjamin Mishkin

Dear Appeals Officer Travassos:

I received two emails from you this morning, at 7:28am and 7:31am. These messages appeared to contain the same attachments as are copied on this message. Can you confirm that these messages were identical?

If the messages were the same, I am unsure which request by Mr. Slaughter is being appealed, as there appear to be two requests included in the document titled "Dustin Slaughter Appeal Letter." Pages 1 through 6 appear to refer to Mr. Slaughter's May 9, 2014 request to PPD, while pages 7 through 15 appear to refer to Mr. Slaughter's April 22, 2014 request for records relating to ICE and the City's Office of Public Safety.

Can you please clarify whether these are in fact two appeals, or whether this correspondence constitutes a single appeal?

In either case, the City respectfully requests additional time to respond to Mr. Slaughter's appeal(s). I am currently the Law Department's only attorney assigned to over 140 pending Right to Know requests and over 25 appeals. As a result, the City would greatly appreciate an additional two weeks to respond to Mr. Slaughter's appeal(s). With this extension, the City's new deadline to respond would be September 2.

Respectfully,

Benjamin S. Mishkin
Open Records Officer & Assistant City Solicitor
Pensions & Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5022 (Phone)
(215) 683-5069 (Fax)

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Priya Travassos

Dear Mr. Mishkin:

The two e-mails sent yesterday morning are identical.

Because Mr. Slaughter's letter setting forth the grounds for his appeal refers to only the request that was denied on June 16, 2014, that request is the only one under consideration in this appeal. Please let me know if there is further ambiguity.

The City's request for a two-week extension of time (until September 2, 2014) is granted. If an additional extension is needed, please contact me.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

From: Benjamin Mishkin

Dear Appeals Officer Travassos:

Attached please find the City of Philadelphia's response to the above-captioned appeal.

Thank you for your consideration of this matter.

Respectfully,

Benjamin S. Mishkin
Open Records Officer & Assistant City Solicitor
Pensions & Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5022 (Phone)
(215) 683-5069 (Fax)

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Priya Travassos

Dear Mr. Mishkin:

Thank you for the City's appellate submission. At this time, I anticipate issuing a decision in this matter by September 16, 2014.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

From: Katharine Janoski

Dear Appeals Officer Travassos:

I represent the City of Philadelphia ("City") Police Department ("PPD") in connection with the above-referenced appeal. I was out of the office when your original email notifying the City of this appeal came in. I returned to the office last week and was only just made aware of the appeal today. I believe that there was a misunderstanding on the City's part and that the City still needs to respond to the appeal of Mr. Slaughter's request denied on June 16, 2014. Under the circumstances, I respectfully request that you consider this email in addition to the attached document, incorporated herein by reference, as the City's response to the appeal of that request. I submit that there is no prejudice in considering these materials because they are being submitted only one day late, and because it is in the interest of justice, fairness, and efficiency for your to have a full record and full set of arguments in making your determination.

First, Mr. Slaughter's appeal to your office is untimely and his appeal should therefore be dismissed. The City responded to his request on June 16, 2014. The City's response to the request is included in the attached document as Exhibit A. As he was advised in the City's final response, Mr. Slaughter had fifteen (15) business days from June 16, 2014, to appeal to your office. See City's Final Response, dated June 16, 2014; see also 65 P.S. § 67.1101; 65 P.S. § 503(d)(2). As such, for his appeal to be valid, Mr. Slaughter was required to file this appeal by no later than July 7, 2014. Because he did not do so, his appeal is untimely and should be dismissed.

Alternatively, even if you reach the merits of this appeal, Mr. Slaughter's appeal should be denied because he is seeking criminal investigatory records. In Part C.1 of the City's attached response to Mr. Slaughter's parallel appeal to the Office of Open Records ("OOR"), incorporated by reference herein, the City explained that the requested records are exempt criminal investigatory records. Additionally, the City submitted the affidavit the PPD's Open Records Officer, Lt. Edward Egenlauf, which attests that the records are criminal investigatory records. Lt. Egenlauf's affidavit is included in the attached document as Exhibit B. Accordingly, as set forth above and in the attached document, Mr. Slaughter's appeal should be denied.

Thank you for your time and consideration in this matter.

Respectfully,

Katharine L. Janoski
Assistant City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5025 (direct dial)
(215) 683-5069 (fax)
katharine.janoski@phila.gov<mailto:katharine.janoski@phila.gov>

THIS MESSAGE CONTAINS INFORMATION WHICH MAY BE CONFIDENTIAL & PRIVILEGED. UNLESS YOU ARE THE ADDRESSEE (OR AUTHORIZED TO RECEIVE FOR THE ADDRESSEE), YOU MAY NOT USE, COPY OR DISCLOSE TO ANYONE THE MESSAGE OR ANY INFORMATION CONTAINED IN THE MESSAGE. IF YOU HAVE RECEIVED THE MESSAGE IN ERROR PLEASE ADVISE THE SENDER BY REPLY E-MAIL, AND DELETE THE MESSAGE.

From: Priya Travassos

Dear Ms. Janoski:

Thank you for the City's additional appellate submission. I will review it and issue a decision in this matter by September 19, 2014.

Sincerely,
Priya Travassos

Priya Travassos
Assistant District Attorney/RTKL Appeals Officer
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
(215) 686-5739
priya.travassos@phila.gov<mailto:priya.travassos@phila.gov>

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