IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Port Authority of Allegheny :

County, :

Petitioner :

:

v. : No. 92 C.D. 2017

: SUBMITTED: June 9, 2017

William Towne, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge1

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

SENIOR JUDGE LEADBETTER FILED: September 12, 2017

The Port Authority of Allegheny County (Authority) petitions for 

review of a final determination of the Office of Open Records (OOR) that granted 

the appeal of William Towne (Requester), acting pro se, from the Authority’s

denial of his request for video recordings from cameras aboard an identified bus 

pursuant to Section 708(b)(17) of the Right-to-Know Law (RTKL) (noncriminal 

investigation exception to public disclosure of records).

2

 On appeal, we consider 

whether the OOR erred in determining that the recordings were not exempt from 

public disclosure and directing that the Authority provide them to Requester. We 

conclude that the recordings were exempt from disclosure and, therefore, reverse.

In October 2016, Requester submitted an e-mail request to the 

Authority seeking: “All video recordings from all cameras aboard the bus running 

 

1

This decision was reached before Judge Hearthway’s service with the Court ended on 

September 1, 2017.

2 Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(17).
2

Route 67 which turned from Beeler onto Wilkins Avenue nearest to 10pm on the 

night of April 14, 2016, for that run of that route.” October 20, 2016, Request at 1; 

Reproduced Record (R.R.) at 14a. After invoking a thirty-day extension in which 

to respond,3the Authority denied the request pursuant to the noncriminal 

investigation exception. In support, the Authority stated:

Inasmuch as [the] Authority has downloaded and 

maintained bus surveillance video from the incident at 

issue [two vehicles collided when one sought to avoid a 

bus collision], [the] Authority did so specifically because 

its Claims Department engaged in a noncriminal 

investigation arising from the incident as said incident 

and video may pertain to and depict the conduct of 

involved parties and civil proceedings that are thereby 

implicated. It should also be noted that the Requester 

inspected the bus surveillance video on June 24, 2016, in 

the offices of [the] Authority and is invited to inspect the 

video again at [its] offices. . . .

December 1, 2016, Response at 5; R.R. at 36a.

Requester appealed, inter alia, averring that a portion of the 

recordings from one of the cameras was very limited, that he was not permitted to 

hear audio components from any of the recordings, and that he was advised of 

secret records which the Authority allegedly excluded. Further, observing that the 

Authority regularly collected video recordings for each bus from multiple cameras, 

he maintained that the recordings were not the result of any investigation. 

December 13, 2016, Appeal; R.R. at 9-10a.

In response, the Authority submitted a position statement describing 

the context of the request4and three affidavits. By way of background, Requester 

 

3

See Section 902(b) of the RTKL, 65 P.S. § 67.902(b).

4

It is well established that a requester’s interest for seeking disclosure of a public record is 

irrelevant. E.g., Current Status, Inc. v. Hykel, 778 A.2d 781, 784 n.3 (Pa. Cmwlth. 2001). To 

(Footnote continued on next page...)
3

filed a property damage claim with the Authority claiming that he collided with a 

vehicle on the date in question in order to avoid a collision with a bus, a property 

damage lawsuit against the Authority before a magisterial district judge, and a 

complaint in common pleas court claiming that the Authority and its bus driver 

violated the Vehicle Code.

5 Ultimately, Requester settled his claim with the 

Authority and discontinued his appeal in common pleas court. December 23, 

2016, Submission from Authority at 1-4; R.R. at 39-42a.

The Authority’s three affidavits were from Mr. Miller, Chief 

Operating Officer; Mr. Stoker, Director of Claims; and Mr. Monks, Associate 

Counsel. Mr. Miller explained that each bus is equipped with multiple cameras, a 

digital video recorder, and a hard drive that stores the recorded video surveillance 

footage. Depending on the size of the bus’s respective hard drive, the existing 

footage is overwritten with new footage anywhere from fourteen to thirty days 

after the recording date. Mr. Miller stated that the footage is not regularly or 

periodically downloaded, viewed, or saved for general quality control or for 

performance operations purposes. It is only downloaded and reviewed when an 

incident, claim, or accident is reported, thereby triggering an investigation. 

Further, he indicated that the Authority limits access to the recordings to recipients 

such as Authority police and the claims department for purposes of investigating 

accidents and complaints. Finally, he indicated that access requires the approval of 

the Chief Operating Officer. January 12, 2017, OOR Final Determination at 7-8; 

R.R. at 127-28a.

_____________________________

(continued...)

the extent that the background of the present request relates to the applicability of the 

noncriminal investigation exception and does not prejudice Requester, we have included it.

5

75 Pa. C.S. §§ 101 - 9805.
4

Mr. Stoker described how the recordings requested in the present case 

were used in the Authority’s investigation of Requester’s property damage claim. 

The footage from the cameras on the subject bus was downloaded to an outside 

server for the claims department’s review. Reiterating that the footage would not 

have been requested or downloaded in the absence of an investigation, which was 

true for all situations, Mr. Stoker stated that the adjuster’s investigation included a 

site visit to the intersection at issue to ascertain the sequencing of the traffic lights, 

a review of the bus surveillance video, a review of the bus operator’s report, and a 

review of Requester’s submissions. Although the adjuster found the recordings to 

be inconclusive as to whether there was contact between the bus and Requester’s

vehicle, Mr. Stoker acknowledged that the recordings were reviewed as part of the

claims investigation. Id.

Mr. Monks described the processing of administrative claims against 

the Authority. He stated that, once Requester’s property damage claim was 

opened, “a representative from the Claims Department requested that the bus 

surveillance video be located, preserved and provided to the Claims Department

for review as part of its investigation of [Requester’s] claim.” December 23, 2016, 

Submission from Authority, Affidavit of Mr. Monks at 2; R.R. at 46a. Mr. Monks 

also described viewing the recordings with Requester at the Authority’s offices, 

stating that access to all seven camera angles was provided and that no additional

secret footage existed. Otherwise, Mr. Monks described the ensuing litigation and 

the outcome of that litigation. Id. at 3-5; R.R. at 47-49a.

After reviewing the Authority’s response, Requester contested some 

of the factual averments, including the number of videos made available, and a 

description of what they depicted. Subsequently, the OOR Appeals Officer sent an 

e-mail advising the parties of the potential applicability of what was then a pending 

appeal in the Supreme Court involving motor vehicle recordings (MVRs) created 
5

by the Pennsylvania State Police (PSP) and the criminal investigation exception

found in Section 708(b)(16) of the RTKL: Pennsylvania State Police v. Grove, 

119 A.3d 1102 (Pa. Cmwlth. 2015), aff’d in part, rev’d in part, and remanded, 161

A.3d 877 (Pa. 2017). Having failed to secure Requester’s consent to a stay of a 

final determination from OOR pending a decision in Grove,

6

the OOR granted his

appeal thereby requiring the Authority to provide the requested recordings. The 

Port Authority’s petition for review to this Court followed.

As a Commonwealth agency, the Authority is required to provide a 

requester with access to a public record pursuant to Section 301 of the RTKL, 65 

P.S. § 67.301.7 There is a presumption of openness as to any information of a 

Commonwealth agency that qualifies as a public record. Section 305(a) of the 

RTKL, 65 P.S. § 67.305(a). “The burden of proving that a record of a 

Commonwealth agency . . . is exempt from public access shall be on the 

Commonwealth agency . . . receiving a request by a preponderance of the 

evidence.” Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1). A 

preponderance of the evidence is that proof that would lead a fact-finder to find 

that the existence of a contested fact is more probable than its nonexistence. Pa. 

State Troopers Ass’n v. Scolforo, 18 A.3d 435, 438-39 (Pa. Cmwlth. 2011). In 

addition, “[c]onsistent with the RTKL’s goal of promoting government 

transparency and its remedial nature, the exceptions to disclosure of public records 

must be narrowly construed.” Office of Governor v. Davis, 122 A.3d 1185, 1191 

(Pa. Cmwlth. 2015).

 

6

See Section 1101(b)(1) and (2) of the RTKL, 65 P.S. § 67.1101(b)(1) and (2) (requiring the 

OOR Appeals Officer to issue a final determination within thirty days unless the requester 

consents to an extension of time).

7

“Commonwealth agency” is defined in Section 102 of the RTKL, 65 P.S. § 67.102.
6

In pertinent part, the exception at issue exempts from public 

disclosure: “A record of an agency relating to a noncriminal investigation, 

including: . . . [i]nvestigative materials, notes, correspondence and reports.” 

Section 708(b)(17)(ii) of the RTKL (emphasis added). In the absence of 

definitions in the RTKL for either “noncriminal” or “investigation,” we have 

concluded that “noncriminal” applies to investigations other than those which are

criminal in nature and that “investigation” means “a systematic or searching 

inquiry, a detailed examination, or an official probe.” Dep’t of Health v. Office of 

Open Records, 4 A.3d 803, 810-811 (Pa. Cmwlth. 2010). The inquiry, 

examination, or probe must be “conducted as part of the agency’s official duties.” 

Id. at 814. See also Dep’t of Pub. Welfare v. Chawaga, 91 A.3d 257, 259 (Pa. 

Cmwlth. 2014) (holding that, an official probe must be conducted pursuant to an 

agency’s legislatively granted fact-finding and investigative powers).

In the present case, the OOR determined that the Authority 

investigated the factual allegations of Requester’s claim pursuant to its right and 

power “[t]o do all acts and things necessary for the promotion of its business, and 

the general welfare of the authority to carry out the powers granted to it by this act 

or any other acts” and “[t]o self insure or otherwise provide for insurance of any 

property or operations of the authority against any risks or hazards.” Sections

3(b)(15) and (22) of the Second Class County Port Authority Act.

8

 Although the 

OOR concluded that the Authority established that investigating self-insurance 

claims related to its legislatively-granted authority, it determined that the 

recordings were not related to or the result of a noncriminal investigation. In 

support, it reasoned as follows:

 

8 Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. §§ 553(b)(15) and (22).
7

Because the bus videos are created prior to and 

independent of any investigation, they cannot be said to 

exist “merely or primarily” for investigative purposes and 

thus cannot be said to “relate” to a noncriminal 

investigation. In this regard, video records are no 

different than any other records that become part of an 

investigation. For example, an agency’s invoices and 

receipts are not exempt from disclosure under the RTKL 

because an investigation is being conducted into how an 

agency uses government funds. Further, there is no 

evidence that the bus videos include any inherently 

investigative content such as “witness interviews, 

interrogations, intoxication testing and other investigative 

work.” See Grove, 119 A.3d 1102 [(Pa. Cmwlth. 2015).]

January 12, 2017, OOR Final Determination at 8-9; R.R. at 129-30a (footnote 

omitted). We reject the OOR’s reasoning.

As the OOR concluded, the Authority’s noncriminal investigation of a 

property damage claim submitted to its claims department was within its 

legislatively-granted powers pertaining to its status as a self-insurer. However, the 

OOR erred in determining that the recordings automatically could not exist 

“merely or primarily” for investigative purposes and “relate” to a noncriminal 

investigation by virtue of the fact that they were created before an investigation

and independent thereof. The Authority’s affidavits bely this conclusion. As Mr. 

Miller stated, the footage is not regularly or periodically downloaded, viewed, or 

saved for general quality control or for performance operations purposes, but only 

downloaded and reviewed when an incident, claim, or accident is reported, thereby 

triggering an investigation. As Mr. Monks indicated, after a property damage 

claim is opened, a claims department representative requests that bus surveillance 

video be located, preserved and provided to it for review as part of its 

investigation. Accordingly, records created before investigations and accessed 

only when necessary can constitute investigative records, especially when the 
8

agency asserts that their only purpose is for use in investigations. We turn to 

Grove for additional support.

In Grove, the MVRs at issue were from two PSP troopers who arrived 

on the scene of an accident. Trooper Vanorden’s MVR was recorded from his 

vehicle and contained video only, showing him speaking to individuals involved in 

the accident, examining vehicle damage, directing one of the drivers to move his 

vehicle to a safer area, and relaying information to Trooper Thomas upon his 

arrival. Trooper Thomas’s MVR contained both video and audio recordings of his 

interviews with the two drivers, as well as bystanders. The investigative 

information on Trooper Thomas’s MVR included his conversations with the 

operators involved and the bystanders in an attempt to ascertain how the accident 

occurred. The PSP conceded that the only potential investigative information 

consisted of the verbal statements on Trooper Thomas’s MVR, which this Court 

expressly ordered should be redacted before release of the MVR.

On appeal, the Supreme Court held that we correctly determined that 

MVRs were not exempt from disclosure as a general rule and that whether they 

contained criminal investigative material had to be determined on a case-by-case 

basis. Grove, 161 A.3d at 894. To that end, the Court referenced an affidavit 

providing that an MVR will be retained when a person captured on the recording 

notifies PSP of his or her intent to use it in civil proceedings, which supports a 

conclusion that the MVRs do not always “relate to” or “result in” criminal 

investigations such that they should lead to a per se exemption under Section 

708(b)(16) of the RTKL. Id. at 893. Accordingly, emphasizing the PSP’s burden 

as the agency seeking an exemption to demonstrate that a record falls within such 

an exemption, the Court rejected the PSP’s position that MVRs are generally 

exempt and always contain criminal investigative material. Id. at 894.
9

Moreover, especially in light of the fact that the PSP did not explain 

how the video portion of the recordings captured any criminal investigation, the 

Court found no error in our conclusion that Trooper Vanorden’s MVR and the 

video aspects of Trooper Thomas’s MVR were not exempt from release pursuant 

to the criminal investigation exemption. In so determining, the Court noted that it 

was clear that Trooper Thomas acquired the requisite information to issue citations 

via his conversations with witnesses and drivers. In other words, the fact and the 

nature of the Vehicle Code violations could not have been gathered from the videoonly aspect of the MVRs. Id. at 895. Accordingly, the Court affirmed that portion 

of our decision determining that “Trooper Vanorden’s MVR and the video aspects 

of Trooper Thomas’s MVR [were] not exempt from release to Grove pursuant to 

Section 708(b)(16). . . .” Id.

Turning specifically to the applicability of Grove to the present case, 

we note that, similar to the recordings herein at issue, the MVRs in Grove “are 

retained and destroyed by PSP on a normal schedule, but will not be destroyed 

when there is an anticipation the records are going to [be] used ‘in civil, criminal, 

quasi-criminal, forfeiture, administrative enforcement or disciplinary 

proceedings.’” Id. at 884. As the Court determined, the portion of the MVR with

an investigative record was exempt from disclosure under the relevant exemption. 

Consistent with Grove, the exempt status of the recordings at issue is not solely 

determined by the fact that they are created before an investigation and 

downloaded and reviewed only after an incident, claim or accident is reported

thereby triggering an investigation. Accordingly, we reject the OOR’s rationale

that, because the recordings were created before and independent of any 

investigation, “they cannot be said to exist ‘merely or primarily’ for investigative 

purposes and thus cannot be said to ‘relate’ to a noncriminal investigation.” 

January 12, 2017, OOR Final Determination at 8-9; R.R. at 129-30a. If the OOR’s
10

somewhat circular reasoning was correct, then portions of the MVRs in Grove

never could have constituted investigative records due to the PSP’s recording and 

retention practice.

Moreover, a dissimilarity between the recordings in Grove and the 

ones at issue also supports our determination. Specifically, unlike the MVRs in 

Grove, which an affidavit indicated were also used to document troopers’ 

performance of their duties and interactions with members of the public,9the 

Authority’s affidavits indicated that the sole purpose of the recordings was for use 

in investigations. This brings us to the somewhat intertwined issue of the 

relatedness between the noncriminal investigation and the Authority’s recordings.

In Grove, the Court concluded that the PSP failed to explain how the 

video portion of the MVRs captured any criminal investigation. In contrast, the 

Authority in the present case submitted affidavits as to how it investigated 

Requester’s claim and the circumstances under which it downloaded and reviewed

its recordings when undertaking a noncriminal investigation of a claim. As noted, 

Mr. Stoker stated that the Authority’s claims adjuster reviewed the recordings as 

part of its investigation. Even though Mr. Stoker indicated that the adjuster’s 

review of the recordings was inconclusive as to whether there was contact between 

the bus and Requester’s vehicle, the adjuster nonetheless reviewed them as part of 

the noncriminal investigation into Requester’s claim against the Authority. The 

plain language of the noncriminal investigation exemption is also instructive.

As Section 708(b)(17)(ii) of the RTKL provides, a record is exempt

when it relates to a noncriminal investigation and includes “investigative 

materials.” The noncriminal investigation at issue (1) commenced when Requester 

filed a property damage claim with the Authority involving one of its buses; (2) 

 

9 Grove, 161 A.3d at 885.
11

was conducted pursuant to the Authority’s self-insurance right and power; and (3) 

was tantamount to a systematic or searching inquiry and/or a detailed examination.

Dep’t of Health, 4 A.3d at 810-811 (holding that an “investigation” means “a 

systematic or searching inquiry, a detailed examination, or an official probe”). 

Accordingly, the recordings, which the adjuster reviewed in the course of 

investigating Requester’s property damage claim, were related to and, indeed, part 

of the noncriminal investigation such that they constituted investigative materials. 

See Fennell v. Pa. Game Comm’n, 149 A.3d 101, 105 (Pa. Cmwlth. 2016) (holding 

that the requested materials, a copy of a report or anything put on record regarding 

the Commission’s investigation into a tree stand that was allegedly too close to a 

house, fell within noncriminal investigation exemption). The fact that the adjuster 

found the recordings to be inconclusive as to whether its bus collided with 

Requester’s vehicle is irrelevant in that they just as easily could have been 

conclusive in that regard. The salient point is that the recordings were sufficiently 

related to the noncriminal investigation such that they constituted investigative 

materials under the applicable exemption.

Accordingly, we reverse.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Port Authority of Allegheny :

County, :

Petitioner :

:

v. : No. 92 C.D. 2017

:

William Towne, :

Respondent :

O R D E R

AND NOW, this 12th day of September, 2017, the order of the Office 

of Open Records is hereby REVERSED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge