Philadelphia Police Department on Google Cars
| Tracking # |
AP2016-1175 |
| Submitted | May 17, 2016 |
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Communications
From: Derek Mitch
To Whom It May Concern:
Pursuant to Pennsylvania Right to Know Act, I hereby request the following records:
All proposal and approval documentation for government vehicles carrying Google stickers or branding. I also request all emails sent, received or otherwise maintained by the Philadelphia Police Department relating to, concerning or about government vehicles carrying Google stickers or branding, from January 2012 to the date of this request.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, 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,
Derek Mitch
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 May 17, 2016. Please let me know when I can expect to receive a response, or if further clarification is needed.
Thanks for your help, and let me know if further clarification is needed.
From: Police RightToKnow
Mr. Mitch ,
Attached to this correspondence is the Philadelphia Police Department's five day acknowledgement to your Right To Know request.
Best ,
The Philadelphia Police Department
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 May 17, 2016. Please let me know when I can expect to receive a response, or if further clarification is needed.
Thanks for your help, and let me know if further clarification is needed.
From: Russell Crotts
Dear Mr. Mitch,
The City is continuing to process your attached request, but it requires additional time to do so. Unfortunately, we have been inundated in the last month with records requests and appeals, which has considerably strained our capacity to respond. In order to balance our obligations and allow us time to complete your request, would you please grant the City an extension of one (1) week (until 6/30/16) to respond to your request?
Respectfully,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Joseph Cox
Hi Russell,
Sure, please extend the deadline to 6/30/16.
Thanks,
From: Russell Crotts
Dear Mr. Mitch,
The City is continuing to process your attached request, however we may need a brief extension of time to do so. Response to your request is substantially completed, and we may be able to provide you with a response tomorrow, June 30, 2016. However, as we are not completely sure that response to your request will be finalized tomorrow, would you please grant the City a brief extension of time until July 5, 2016 to respond to your request?
If we are subsequently able to finalize response to your request before July 5, 2016, we will send you your response immediately.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Joseph Cox
Hi Russell,
Thanks for the update. Can I ask, has anyone else filed a FOIA on this subject? If so, may I also have the materials already released to them as well ASAP?
Otherwise, the extension to July 5 works, thank you. If the response is ready by tomorrow, that would be great too.
Let me know if you need anything else.
Sincerely,
From: Russell Crotts
Dear Mr. Mitch,
The City has received other requests on this subject, however, the City has not yet provided records or a response to anyone regarding this subject.
We appreciate you granting the brief extension we requested.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Police RightToKnow
Mr. Mitch :
Attached to this correspondence is the Philadelphia Police Department's final response to your Right to Know Request.
Best ,
The Philadelphia Police Department
From: Joseph Cox
Hi,
Thanks for the response. Just to clarify, emails were withheld by the agency because "“[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.”"
I received the email which is a media request from VICE, but to clarify, there were other responsive emails that were withheld for the reasons above?
Any clarification on that appreciated, thank you,
From: Joseph Cox
To whom it may concern,
Please consider this a formal appeal to the City of Philadelphia’s (“the City”) partial denial of my request originally submitted on 05/17/2016.
After two extensions, the City responded by partially denying my request, claiming that they do not possess material responsive, in part, to my request, and that the records within the Philadelphia Police Department’s possession that are responsive are exempt under 67.708(b)(10)(i)(A). The one responsive record the City released is a media inquiry email (attached) sent by a reporter for Vice.
The documents sought are public records under the Right-to-Know Act, 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)
Crucially, 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 City clearly has not met this burden.
The City simply recites the aforementioned exemption statute 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 exemption, the City has failed to meet its burden.
Moreover, blanket withholding of public records, as the City has done in their response, violates the letter and spirit of the RTKL. “If the information which is not subject to access is an integral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access.” (67.706)
Thank you in advance for your time and attention to this matter, and please provide receipt of this appeal as soon as possible.
Sincerely,
Derek Mitch
From: DC, OpenRecords
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 5 of attachment for contact information). Please forward all future correspondence directly to the Appeals Officer and all other parties. Thank you!
[cid:image001.jpg@01CB50E7.66A46B70]
Faith Henry
Administrative Officer
Office of Open Records
Commonwealth Keystone Building
400 North Street, Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
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.
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From: Joseph Cox
To whom it may concern,
In your previous letter concerning my appeal, you asked for a copy of my original request. Please find it below:
To Whom It May Concern:
Pursuant to Pennsylvania Right to Know Act, I hereby request the following records:
All proposal and approval documentation for government vehicles carrying Google stickers or branding. I also request all emails sent, received or otherwise maintained by the Philadelphia Police Department relating to, concerning or about government vehicles carrying Google stickers or branding, from January 2012 to the date of this request.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, 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,
Derek Mitch
From: DC, OpenRecords
Thank you for contacting the Office of Open Records. This message serves as confirmation that your appeal or general inquiry has been received. Please retain this confirmation for your records.
NOTE: This email address should only be used for appeal submissions (i.e., appeals of an agency response to a request for records) and general questions. It should not be used to submit a request for records. If you are requesting records, please direct your request to RTK-OOR@pa.gov<mailto:RTK-OOR@pa.gov>.
From: Isenberg, Kelly
Dear Parties,
On July 11, 2016, the OOR issued an Order giving Notice of Filing Deficiency stating that the Agency Response was not attached to MuckRock's appeal in compliance with 65 P.S. § 37.1303(b). On July 11, 2016, the OOR received email correspondence from the Requester containing the Request submitted to the Philadelphia Police Department.
If one is available, kindly provide a copy of the agency response or please advise if it does not exist.
Thank you for your attention to this matter.
Very truly yours,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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.
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From: Isenberg, Kelly
Please see the correspondence below. I apologize for the error in spelling the email address.
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From: RightToKnowLaw
Dear Appeals Officer Isenberg,
Please advise the City as to whether Appellant has cured his deficient appeal by providing the OOR with the agency response by 7/18/16, which was 7 calendar days after receipt of the Notice of Filing Deficiency on 7/11/16?
If Appellant did not cure this deficiency by 7/18/16, the City respectfully asks that the instant appeal be dismissed as deficient.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
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From: Isenberg, Kelly
HOW DOES THIS SOUND:
Dear Mr. Mitch,
In order to continue your appeal, you are directed to file the Department's response that is the subject of this appeal in accordance with the OOR's deficiency Order issued on July 11, 2016. By email of July 13, 2016, the OOR informed you that you had resubmitted the initial request that was made to the Philadelphia Police Department, not the response.
If the response is not filed by today, your appeal will be dismissed. The OOR accepts electronic submissions until 11:59:59 p.m. on the date due.
Thank you for your attention to this matter.
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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.
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From: Joseph Cox
To all,
The original response from the Police Department has been sent. MuckRock's system does not allow attachments to be sent to parties so it has been sent outside of the system via ordinary email.
Thank you,
From: Russell Crotts
Dear Appeals Officer Isenberg and Mr. Mitch,
As of the sending of this email, the City has not received correspondence from Mr. Mitch containing the Department’s response that is the subject of this appeal. The City is unclear what Mr. Mitch means by “it has been sent outside of the system via ordinary email.”
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: MuckRock
To Whom It May Concern:
Please find attached this agency's response to this request, which contain the matters this requester is appealing.
Thank you.
From: Isenberg, Kelly
Dear parties,
Please accept my apologies for the inclusion of "HOW DOES THIS SOUND" on the email. That was intended to be in a different email to a different person. It certainly was not intended as a comment with respect to this appeal or any submission.
Again, I'm sorry for any confusion and that it looked like a comment directed to the parties of this appeal.
Very truly yours,
Kelly Isenberg
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From: Russell Crotts
Dear Appeals Officer Isenberg,
The City of Philadelphia respectfully requests a seven (7) business day extension, until 7/29/16, to respond to Mitch v. Philadelphia Police Department, O.O.R. Dkt. AP 2016-1175. The City is currently processing a very large amount of requests and appeals and the deadline for submission to this appeal has not been previously extended. Additionally, Appellant's appeal was deficient as recently as 7/19/16.
The response to this appeal is currently due, today, July 20, 2016. In order to afford sufficient time to secure signatures of necessary affiants, collect evidence, and manage our workload, the City respectfully requests a seven (7) business day extension of the deadline for submission to the above-captioned appeal until July 29, 2016.
Respectfully Submitted,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Isenberg, Kelly
Dear Parties,
1. As the Department was not copied on the email submission made by MuckRock yesterday, I will be forwarding it today. I would ask that Mr. Mitch/MuckRock note that each party is responsible for ensuring that the opposing party is provided copies of any submissions made to the OOR.
2. Additionally, this correspondence confirms that the agency (Philadelphia Police Department) is granted an additional seven days (7) in which to file a submission in response to the above-referenced appeal. The Department's deadline for filing a submission in this appeal is now July 29, 2016.
3. As the Requester was provided time to cure the appeal deficiency, and the Department has been granted an additional seven (7) days in which to file a submission, in order to properly consider this appeal, the OOR would require a corresponding extension of time in which to issue the final determination in this matter. As you are the Requester and the Requester is the party from whom permission is needed to extend the timeframe in which to issue a final determination, kindly advise whether you are amenable to extend the final determination deadline by seven (7) days. Please provide a reply to the request for extension of time in which to issue a final determination by Friday, July 22, 2016.
Thank you for your attention to these matters and have a good day.
Kelly
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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.
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image001
From: Isenberg, Kelly
Dear Parties,
Kindly confirm that this email message transmitted a copy of MuckRock’s submission of the agency response sent to the OOR on July 19, 2016, in response to my email.
Thank you,
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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.
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From: Russell Crotts
Dear Appeals Officer Isenberg,
Yes, the City received a copy of the agency response from Appellant at 6:45 pm on 7/19/16.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
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image001
From: Isenberg, Kelly
Thank you. Have a good day.
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From: Joseph Cox
To all,
Those deadline extensions are fine. Thank you,
From: Isenberg, Kelly
Dear Mr. Mitch,
Thank you for your quick response and for agreeing to additional time to complete the final determination in this matter.
This correspondence will confirm the Requester’s agreement to provide the OOR with an extension of time for the issuance of a Final Determination in this matter. Therefore, the Final Determination in this matter is now due on or before August 17, 2016.
I appreciate your attention to this matter.
Sincerely,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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.
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image001
From: Russell Crotts
Dear Appeals Officer Isenberg,
Please see attached for the City's response and exhibits to Mitch v. Philadelphia Police Department, OOR Dkt. AP 2016-1175.
Respectfully Submitted,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Isenberg, Kelly
Dear Parties,
In order to thoroughly consider that issues presented in the above-captioned appeal, it is necessary to further develop the record by conducting an in camera review of the e-mail chain the Department claims is exempt under Sec. 708(b)(10) of the RTKL.
To accommodate the in camera review, the OOR requires an additional three (3) weeks to issue a final determination.
Mr. Mitch: Kindly respond by Friday, August 13, 2016, regarding your acceptance of the extension of time to issue a final determination until September 7, 2016.
Thank you for your attention to this matter.
Sincerely,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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From: Joseph Cox
Hi,
Yes, I accept an extension to issue a final determination until September 7. If you could elaborate on why an in camera review is necessary, and what exactly that will entail (as in, will Philadelphia Police Department be present at the review), I'd appreciate it.
Sincerely,
From: Philadelphia Police Department
An interim response, stating the request is being processed.
From: Isenberg, Kelly
Dear Parties,
Thank you for your prompt response to the OOR’s request for an extension of time. This correspondence confirms that the deadline for issuance of a Final Determination in this matter has been extended to September 7, 2016, for the purpose of conducting an in camera review of records at issue on appeal.
Regarding Mr. Mitch’s questions, In camera review is a process where the agency provides copies of the withheld records to the OOR for the OOR to look directly at the records to determine the applicability of the cited exemptions. An order will be issued upon the agency pursuant to Section 1310(a)(5) of the RTKL and Section V(E) of the OOR Procedural Guidelines. The Philadelphia Police Department will provide the records in compliance with the Order but, will not be present for the review as the records will be held in confidence in a secure file at the OOR. The OOR website further explains the In camera review process and provides access to the OOR Procedural Guidelines. The following is a link to the procedural guidelines on the OOR website: http://openrecords.pa.gov/Documents/Appeals/2015-10-01_Procedural_Guidelines.pdf
Further correspondence will follow regarding the In camera review process.
Thank you for your attention to this matter.
Very truly yours,
Kelly Isenberg
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~WRD000
From: Isenberg, Kelly
Dear Attorney Crotts,
Attached please find correspondence and an Order directing that the Philadelphia Police Department produce documents for in camera review in the above-captioned appeal. The documents have also been sent to both parties via U.S. Mail.
Thank you for your attention to this matter.
Regards,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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From: Russell Crotts
Dear Mr. Mitch,
Please see attached ("In Camera Index and Certification - Mitch AP 2016-1175 - Signed") for the In Camera Inspection Index.
Additionally, please see attached ("Unresponsive Email to Appellant's Collegue") for an email that was sent to one of your colleagues, that is not responsive to the request as it is outside the timeframe that you sought of 1/1/12 to 5/11/16, but reflects the only otherwise nonexempt information in these exempt email chains.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Russell Crotts
Dear Mr. Mitch,
Please see below for the supplemental legal argument submitted by PPD to the Office of Open Records. Please also see attached for all documents submitted to the OOR for purposes of in camera inspection with the exception of the exempt In Camera Records:
Dear Appeals Officer Isenberg,
Please see attached ("In Camera Records- Mitch AP 1175") for all unredacted records responsive to Item 2 of Appellant's request. Additionally, please see attached ("In Camera Index and Certification - Mitch AP 2016-1175 - Signed") for three (3) copies of an In Camera Inspection Index.
It is PPD's position that all records responsive to Item 2 of Appellant's request are not "public records" as they are exempt as internal predecisional deliberations pursuant to 65 P.S. § 67.708(b)(10)(i)(A) of the Right to Know Law ("RTKL"). The Commonwealth Court has held on multiple occasions that agencies are "not required to redact nonpublic information from what are nonpublic records in order to make such records public and subject to disclosure." Dep't of Health v. Off. of Open Records, 4 A.3d 803, 815 (Pa. Commw. 2010); Pa. State Police, 5 A.3d at 481 ("[W]here a record falls within an exemption under Section 708(b), it is not a public record as defined by the RTKL and an agency is not required to redact the record.") (emphasis in original); Saunders v. Pa. Dep't of Corr., 48 A.3d 540, 543 (Pa. Commw. 2012) (holding that an agency cannot be required to redact a record exempt in part under the Section 708(b)(2) Public Safety exception because that record "falls within one of the exemptions set forth in Section 708 does not constitute a 'public record'"); cf. Barros v. Martin, 92 A.3d 1243, 1250-51 (Pa. Commw. 2014) (holding that an agency was not required by the RTKL to exercise its discretion to release records exempt under Section 708(b)(16) and CHRIA under Section 506(c)).
Section 706 provides that "[i]f an agency determines that a public record [. . .] contains information which is subject to access as well as information which is not subject to access, [. . .] the agency shall redact from the record the information which is not subject to access[.]" 65 P.S. § 67.706. However, while Section 706 applies this redaction requirement to "public records," this requirement does not apply to records exempt from public access, specifically those exempted by Section 708(b). 65 P.S. § 67.706; Dep't of Health, 4 A.3d at 815; see also 65 P.S. § 67.305(a)(1) ("The presumption" that a record in the possession of a local agency is a public record "shall not apply if [. . .] the record is exempt under section 708[.]"). Thus, if "a record is determined to fall within one of the exemptions set forth in Section 708, that record does not constitute a 'public record' as defined by Section 102" and "Section 706 does not apply." Dep't of Health, 4 A.3d at 815.
In addition, it is not possible to redact the records in a way that provides nonexempt information without removing all context. Subject to and without waiving the foregoing, PPD has acknowledged to Appellant's colleagues that the vehicle that was the subject of his request was, in fact, a police vehicle. While this information exists within the email chain, it is not possible to redact the emails to provide such information without otherwise revealing exempt information.
PPD has provided an email ("Unresponsive Email to Appellant's Colleague") that was sent to a colleague of Appellant, that is not responsive to the request as it is outside the timeframe sought by Appellant of 1/1/12 to 5/11/16, but reflects the only otherwise nonexempt information in these exempt email chains.
Further, during the pendency of this appeal, PPD determined that the release of the vehicle identification number contained in the May 11, 2016 email at 12:29 PM (BN 0001, BN 0004), is a personal security concern, a public safety concern, and could impede an undercover or covert law enforcement activity. 65 P.S. § 67.708(b)(1)(ii); 65 P.S. § 67.708(b)(2); 65 P.S. § 67.708(b)(6)(iii).
As Lieutenant Edward Egenlauf, the Open Records Officer for the City of Philadelphia Police Department ("PPD"), attests in the attached certification, "[t]he identification number of an unmarked/undercover police vehicle, if publicly disclosed, would allow any individual, including ill-intentioned actors to identify a PPD employee performing an undercover or covert law enforcement activity to be identified as a police officer." Aff. of Lt. Edward Egenlauf, Philadelphia Police Department ("Egenlauf Aff.") ¶ 2 (August 22, 2016). Additionally, Lt. Egenlauf attests, "[t]he public identification of an individual performing an undercover or covert law enforcement activity would: (a) [c]ompromise the success of the undercover or covert law enforcement activity as it would expose the PPD employee and prevent them from being able to work undercover[;] (b) [b]e reasonably likely to threaten the personal security of the individual attempting to work undercover as undercover officers routinely work in dangerous and high-pressure situations where the revelation of their police officer status would likely cause the suspects they are surveilling to attempt to injure or kill the undercover officer; and (c) [b]e reasonably likely to threaten the public safety as an increase in the number of police officers injured or killed during undercover or covert law enforcement activities would reduce the pool of uninjured officers available for duty and undermine PPD's undercover and covert law enforcement activities, generally, due to the personal security concerns described above." Id. at ¶ 2 (a-c). Finally, Lt. Egenlauf attests, "[t]herefore, the disclosure of the identification number of an unmarked/undercover police vehicle would be reasonably likely to compromise the success of undercover or covert law enforcement activities, cause personal security risks for PPD employees attempting to work undercover, and cause larger public safety risks." Id. at ¶ 4.
PPD did not waive the above grounds of denial by failing to include them in its final response. See Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013); McClintock v. Coatesville Area School Dist., 74 A.3d 378 (Pa. Commw. Ct. 2013).
Copies of the In Camera Inspection Index and the Unresponsive Email to Appellant's Colleague have been separately emailed to Appellant.
Respectfully Submitted,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
From: Philadelphia Police Department
A letter stating that the request appeal has been received and is being processed.
From: Isenberg, Kelly
Dear parties,
Please find attached a confirmation of receipt for the records submitted by the Department for in camera review along with a Certificate of Nondisclosure.
Very truly yours,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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From: Isenberg, Kelly
Dear Parties,
Attached please find the final determination in the above-captioned appeal.
Sincerely,
Kelly Isenberg
[cid:image001.jpg@01CB50E7.66A46B70]
Kelly C. Isenberg | Attorney
Office of Open Records
Commonwealth Keystone Building
400 North St., Plaza Level
Harrisburg, PA 17120-0225
(717) 346-9903<tel:%28717%29%20346-9903> | http://openrecords.pa.gov<http://openrecords.pa.gov/>
kisenberg@pa.gov<mailto:kisenberg@pa.gov> | @OpenRecordsPA<https://twitter.com/OpenRecordsPA>
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From: MuckRock.com
To Whom It May Concern:
I'm following up on the following Right to Know request, copied below, and originally submitted on May 17, 2016. You had previously indicated that it would be completed on June 30, 2016. I wanted to check on the status of my request, and to see if there was a new estimated completion date. You had assigned it reference number #AP2016-1175.
Thanks for your help, and let me know if further clarification is needed.
From: MuckRock.com
To Whom It May Concern:
I'm following up on the following Right to Know request, copied below, and originally submitted on May 17, 2016. You had previously indicated that it would be completed on June 30, 2016. I wanted to check on the status of my request, and to see if there was a new estimated completion date. You had assigned it reference number #AP2016-1175.
Thanks for your help, and let me know if further clarification is needed.
From: Russell Crotts
Dear Mr. Mitch,
Please see attached for responsive records, subject to the redaction of Bates No. 0001 (e-mails dated 5/11/16 at 12:29 p.m. and 1:20 p.m.) and Bates No. 0004 (e-mail dated 5/11/16 at 12:30 p.m. only) that are being provided to you pursuant to the Office of Open Records' ("OOR") final determination of September 7, 2016.
Best,
Russell T. Crotts, Esquire
Assistant City Solicitor, Pensions and Investments Division
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
(215) 683-5403 (Phone)
(215) 683-5069 (Fax)
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