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FINAL DETERMINATION


IN THE MATTER OF :
:
AUSTIN NOLEN, :
Requester :
:
v. : Docket No.: AP 2014-1421
:
DELAWARE COUNTY, :
Respondent :


INTRODUCTION
Austin Nolen (Requester) submitted a request (Request) to Delaware County
(County) pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq. (RTKL) seeking
various records from the Countys Emergency Services Department. The County denied the
Request, stating that the information requested would threaten public safety or pose a security
risk. The Requester appealed to the Office of Open Records (OOR). For the reasons set forth
in this Final Determination, the appeal is granted in part and dismissed as moot in part, and
the County is required to take further action as directed.
FACTUAL BACKGROUND
On August 13, 2014, the Request was filed, seeking copies of the following records from
the Countys Emergency Services Department:

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I. The entirety of the grant application file for the FEMA Urban Security
Area Initiative grant used to purchase SWAT One, a 2014 Lenco Bear
Cat;
II. Training manuals and procedures for the above vehicle;
III. Procedures or agreements for other agencies to request use of the above
vehicle.

On August 20, 2014, the County invoked an extension of time to respond to the Request under
Section 902 of the RTKL. On August 28, 2014, the County denied the Request, stating that the
requested records are not subject to disclosure because they are exempt under the RTKLs public
safety exception, 65 P.S. 67.708(b)(2), and the exception pertaining to the physical safety or
security of infrastructure or resources, 65 P.S. 67.708(b)(3)(ii)-(iii).
On September 16, 2014, the Requester appealed to the OOR, challenging the denial and
stating grounds for disclosure. In his appeal, the Requester acknowledges that certain portions of
responsive records may be exempt under Section 708(b)(2) of the RTKL, but adds that the
County must provide proof in enough detail to show that this exemption applies to all parts of all
requested records, and not just to certain portions of the requested records. Additionally, the
Requester contends that Section 708(b)(3) is not applicable to any records responsive to the
Request. The Requester also argues that the County failed to provide an adequate description of
the records to which he was denied access, as is required under Section 903 of the RTKL. The
Requester notes that, although his attempt to mediate this matter with County was unsuccessful,
he was interested in pursuing a resolution through mediation. The OOR invited both parties to
supplement the record and directed the County to notify any third parties of their ability to
participate in the appeal pursuant to 65 P.S. 67.1101(c).
Having received no submission from the County, the OOR, on October 2, 2014,
contacted the Countys Open Records Officer, Anne Coogan, to verify whether the County
received notice of the appeal. On that same date, Ms. Coogan replied that the County did not
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receive any notice of the appeal from the OOR. The Requester subsequently agreed to extend
the time period for the OOR to issue its final determination pursuant to 65 P.S. 67.1101(b)(1).
The OOR provided the County with additional time to submit supplemental information in
support of its position. Although the OOR offered mediation to the parties, neither party
responded to the invitation.
On October 9, 2014, the County submitted correspondence to the OOR stating that, to the
extent the County has access to responsive records, it believes the cited exemptions apply. The
repository for most of the records, the County asserted, was the entity identified as the
Southeastern Pennsylvania Regional Task Force. The County listed the contact information for
the Task Force. The County provided a record labeled Quotation 10257 from Lenco Armored
Vehicles, acknowledging that this record did not appear to fall within the claimed exemptions.
On October 10, 2014, the Requester filed a Memorandum of Law in response to the
Countys submission. The Requester reasserted his position that the County failed to meet its
burden of proof and asserted that any records in the possession of the Task Force remain within
the control of the County and must therefore also be produced.
LEGAL ANALYSIS
The objective of the Right to Know Law ... is to empower citizens by affording them
access to information concerning the activities of their government. SWB Yankees L.L.C. v.
Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is
designed to promote access to official government information in order to prohibit secrets,
scrutinize the actions of public officials and make public officials accountable for their
actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), affd
75 A.3d 453 (Pa. 2013).
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The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65
P.S. 67.503(a). An appeals officer is required to review all information filed relating to the
request and may consider testimony, evidence and documents that are reasonably probative and
relevant to the matter at issue. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a
hearing to resolve an appeal. The decision to hold a hearing is discretionary and non-
appealable. Id.; Giurintano v. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011).
Here, neither party requested a hearing and the OOR has the necessary, requisite information and
evidence before it to properly adjudicate the matter.
The County is a local agency subject to the RTKL that is required to disclose public
records. 65 P.S. 67.302. Records in possession of a local agency are presumed public unless
exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65
P.S. 67.305. Upon receipt of a request, an agency is required to assess whether a record
requested is within its possession, custody or control and respond within five business days. 65
P.S. 67.901. An agency bears the burden of proving the applicability of any cited exemptions.
See 65 P.S. 67.708(b).
Section 708 of the RTKL clearly places the burden of proof on the public body to
demonstrate that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of
proving that a record of a Commonwealth agency or local agency is exempt from public access
shall be on the Commonwealth agency or local agency receiving a request by a preponderance of
the evidence. 65 P.S. 67.708(a). Preponderance of the evidence has been defined as such
proof as leads the fact-finder to find that the existence of a contested fact is more probable
than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.
2011) (quoting Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827
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(Pa. Commw. Ct. 2010)). "The burden of proving a record does not exist ... is placed on the
agency responding to the right-to-know request." Hodges v. Pennsylvania Department of
Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011).
1. The appeal is moot as to the record provided during the appeal
The County, during the course of the appeal, produced one record responsive to the
Request and for which it is not claiming any exemptions. The appeal as to that record, Quotation
10257, is therefore dismissed as moot.
2. The County has not met its burden of proof for all remaining records
As for all other records responsive to the Request, the County asserts those records are
exempt from disclosure pursuant to Sections 708(b)(2) and (3) of the RTKL. Section 708(b)(2)
exempts from disclosure [a] record 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 public protection activity. 65 P.S. 67.708(b)(2).
Section 708(b)(3) of the RTKL exempts from disclosure [a] record, the disclosure of which
creates a reasonable likelihood of endangering the safety or the physical security of a building,
public utility, resource, infrastructure, facility or information storage system. 65 P.S.
67.708(b)(3)(ii)-(iii). Reasonably likely has been interpreted as requiring more than
speculation. Carey v. Dept of Corr., 61 A.3d 367, 374-75 (Pa. Commw. Ct. 2014).
In the present case, the County did not present any evidence to prove that disclosure of
the records responsive to the Request would be reasonably likely to jeopardize public safety or a
public protection activity, or endanger the safety or the physical security of a building, public
utility, resource, infrastructure, facility or information storage system. Nor did it present
evidence that records responsive to the Request do not exist within its possession, custody or
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control. Unsworn statements in the Countys final response and correspondence filed during the
course of the appeal cannot be considered competent evidence to sustain the Countys burden of
proof. See Housing Authority of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 216 (Pa.
Commw. Ct. 2012) (holding that unsworn statements of counsel are not competent evidence);
City of Philadelphia v. Juzang, July Term 2010, No. 2048 (Phila. Com. Pl. June 28, 2011)
(holding that unsworn factual statements in a legal memorandum are not evidence). Therefore,
the County has not met its burden of proving that records responsive to the Request do not exist
in its possession, custody or control, or are exempt from disclosure under Section 708(b)(2) or
(3) of the RTKL.
CONCLUSION
For the foregoing reasons, the Requesters appeal is granted in part and dismissed as
moot in part, and the County is required to provide access to all responsive records, other than
Quotation 10257, within thirty days. This Final Determination is binding on all parties. Within
thirty days of the mailing date of this Final Determination, any party may appeal to the Delaware
County Court of Common Pleas. 65 P.S. 67.1302(a). All parties must be served with notice of
the appeal. The OOR also shall be served notice and have an opportunity to respond as per
Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at:
http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: October 30, 2014



ANGELA EVELER, ESQ.
APPEALS OFFICER

Sent to: Austin Nolen (via e-mail only);
Anne Coogan (via e-mail only)