Opinion
No. 819 C.D. 2014
06-05-2015
William A. Reeves, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, William A. Reeves, proceeding pro se, petitions for review of the final determination of the Office of Open Records (OOR) denying access to the Pennsylvania Board of Probation and Parole's 24/7 Operations Monitoring Center Protocol Desk Manual (Manual). We affirm.
Reeves is currently incarcerated in the State Correctional Institution at Mahanoy. Reeves was arrested by his parole agent and re-incarcerated for violating his parole. Specifically, Reeves was apprehended by his parole agent and local police while driving a vehicle, which was a violation of his parole conditions. After the arrest, Reeves' parole agent and local police executed a search of his registered residence. Reeves was not actually residing at the address registered with the Board, but in a different apartment in the same building, which was also searched. The second search returned guns, drugs, money and mail addressed to Reeves at the second apartment. Reeves sought to suppress the searches of both apartments.
On March 3, 2014, Reeves submitted a Right-to-Know Law (RTKL) request seeking "Outline of JNET notification protocol or operating procedures where a parolee's (sic) changes their [sic] address." The Board responded by identifying the Manual as responsive to the request, but denying the request on the basis that the records were exempt from disclosure.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
Reeves appealed the denial to the OOR, arguing that he requested the Manual because his parole agent and the Pennsylvania Department of Transportation (PennDOT) provided conflicting evidence regarding how the Board became aware of his change of address. Reeves argued that during the suppression hearing his parole agent testified that "when a parolee changes there (sic) address JNET will automatically notify PennDOT of this change and PennDOT will then notify Probation and Parole about his change." Certified Record (C.R.) at No. 1. In contrast, the director of the Bureau of Driver Licensing, Janet L. Dolan, advised him by letter that PennDOT does not notify the Board of a parolee's address change.
The Court notes that the parole agent's actual testimony was as follows: "[Reeves] went down to PennDot and changed it, and we get JNET notifications that his address was changed to Apartment 9." Petitioner's Brief, Exhibit B, Notes of Testimony at 34.
The Board submitted the affidavit of Colleen Fickel, the Director of the Bureau of Central Services, and a letter brief arguing that the Manual was exempt from disclosure under Sections 708(b)(2), the public safety exemption, 708(b)(16), the non-criminal investigation exemption, and 708(b)(17), the criminal investigation exemption. The Board explained that it subscribes to a variety of JNET notifications including: AOPC court event messages, warrants, protection from abuse orders, Pennsylvania State Police arrests, Maryland arrests and warrants, and PennDOT changes of address. C.R. at No. 4; Fickel Affidavit at ¶ 15. JNET notifications are not routed directly from one subscriber to another subscriber. Rather, PennDOT notifies JNET of all address changes it has processed. JNET then provides the Board with the information provided by PennDOT. Id.; Fickel Affidavit at ¶ 16. The Board's Monitoring Center sifts through the data to determine if any of the information matches an active offender. Id.; Fickel Affidavit at ¶ 17. If a match exists, the information is forwarded to the offender's parole agent. Id.; Fickel Affidavit at ¶ 18. The Board's JNET notification protocols or operating procedures are contained in the Manual and the Board maintains the Manual in connection with its public safety activities. Id.; Fickel Affidavit at ¶¶ 21.A, 21.B. The Board withheld the Manual because if an offender specifically knew the circumstance of how and when information from other agencies was shared with the Board, the offender could possibly manipulate the information provided. Id.; Fickel Affidavit at ¶ 22. Further, Fickel averred that if the Manual were disclosed, it would reveal the capabilities and scope of the Board's offender management procedures and policies, and offenders could use the information to circumvent existing parole supervision procedures and practices, thereby jeopardizing Board's public protection activity in monitoring and supervising offenders. Id.; Fickel Affidavit at ¶¶ 23-25.
The OOR denied Reeves' appeal, concluding that the Board had provided sufficient evidence to demonstrate that the Manual was exempt from disclosure. The OOR found that the Fickel Affidavit demonstrated that the Manual is used by the Board in its supervision of offenders and thus, is related to a public safety activity. The OOR also found that the Fickel Affidavit showed that disclosure of the Manual would be reasonably likely to threaten public safety because offenders could use it to circumvent supervision policies and procedures. This appeal followed.
The public safety exception of the RTKL, 65 P.S. §67.708(b)(2), provides that a record is exempt from disclosure if:
A record 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 or a record that is designated classified by an appropriate Federal or State military authority.To establish the public safety exception, an agency must show: (1) the record at issue relates to a law enforcement or public safety activity; and, (2) disclosure of the record would be "reasonably likely" to threaten public safety or a public protection activity. Adams v. Pennsylvania State Police, 51 A.3d 322 (Pa. Cmwlth. 2012). In interpreting the "reasonably likely" part of the test, the court looks to the likelihood that disclosure would cause the alleged harm, requiring more than speculation. Governor's Office of Admin. v. Purcell, 35 A.3d 811 (Pa. Cmwlth. 2011).
The Board bears the burden of proving by a preponderance of the evidence that the disclosure of the record "would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity ...." 65 P.S. §67.708(b)(2). A preponderance of the evidence standard, the lowest evidentiary standard, is tantamount to "a more likely than not" inquiry. Delaware Cnty. v. Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).
Reeves argues that the Board could have produced a redacted copy of the Manual, thus rendering it non-threatening to public safety. Reeves also argues that the Board failed to explain how a redacted copy of the Manual is exempt from disclosure in light of the fact that the Board provided a general subjective description of its procedures regarding JNET notification of PennDOT changes of address. As Reeves' arguments are interrelated, we will address them together.
Reeves relies upon Carey v. Pennsylvania Department of Corrections, 61 A.3d 367, 377 (Pa. Cmwlth. 2013), in which the court opined that the Department of Corrections could have produced responsive documents in redacted form, rendering the documents non-threatening. In Carey, numerous documents were responsive to the requestor's multi-pronged request for documents relating to the Department of Corrections' decision to transfer nearly 1000 inmates to Michigan prisons. The court held that the Department of Corrections had failed to explain which records were protected and which were not protected from disclosure, did not connect responsive records with a threat to public safety and did not explain how disclosure of communications was reasonably likely to impair prisoner transfers. Id. (stating that an "[a]dequate description of responsive records is crucial to demonstrate how disclosure threatens public safety").
Unlike Carey, which involved a voluminous number of responsive records, there is a single responsive document to Reeves' request. The Board, as required, identified the Manual and provided an adequate description of what the Manual contains and how it relates to the Board's public safety duties. The Board further explained how the information in the Manual, if disseminated, could jeopardize public safety. The Board has met its burden to prove that the Manual is exempt from disclosure under the public safety exception. Additionally, in Carey, the court ordered production of redacted copies of documents because the Department of Corrections had failed to satisfy its burden to demonstrate that the requested documents were exempt from disclosure. In the case at hand, the Board carried its burden, and therefore it was not necessary to provide a redacted copy of the Manual.
Reeves repeatedly argues that if the Board can give a subjective description of the information in the Manual, there is no harm in releasing the actual Manual. Reeves fails to comprehend that the Board is seeking to protect what strategies and protocols it uses in monitoring and supervising offenders upon notification of a change of address. Woods v. Office of Open Records, 998 A.2d 665, 670 (Pa. Cmwlth. 2010) (denying access to Board's sex offender supervision protocol manual because the manual provided a strategic guide for Board employees to use when monitoring and supervising sex offenders and release of such information would impair the effectiveness of that supervision, and thus threaten public safety). --------
Reeves also challenges the OOR's sole reliance upon the Fickel Affidavit in reaching its determination, asserting that speculative and conclusory statements in affidavits do not show a likelihood of a public threat. Carey, 61 A.3d at 376. Reeves argues that the affidavit does not explain how the procedures surrounding a parolee's change of address would compromise the scope of the Board's offender management procedure and policies, or how the information, from a redacted version of the Manual, if disclosed, could be used to circumvent existing parole supervision procedures and practices.
In her affidavit, Fickel stated that she had been employed by the Board since 1984 and currently held the position of Director of the Bureau of Central Services. Fickel explained that the Bureau was responsible for supervision of offenders including the supervision of the 24/7 Operations Monitoring Center, the electronic monitoring of offenders and urinalysis testing. Fickel also explained that parole agents must use a range of strategies and interventions to help offenders reintegrate into society. The Fickel Affidavit established Fickel's background, the purpose of the 24/7 Operations Monitoring Center, and the Board's goals in relation to the supervision of offenders. Further, the Fickel Affidavit explained the contents of the Manual and how the information in the Manual could threaten public safety and impair the Board's ability to supervise offenders. Thus, the affidavit is not a simple conclusory statement that disclosure would harm the public and the OOR properly relied upon it in reaching its determination.
For the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of June, 2015, the order of the Office of Open Records is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge