IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

:

v. : No. 1646 C.D. 2014

: Submitted: March 20, 2015

Casey Grove, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE LEAVITT FILED: September 28, 2015

The Pennsylvania State Police petition for review of a final 

adjudication of the Office of Open Records (OOR) ordering the State Police to

provide Casey Grove with a copy of a video recording of his interaction with a 

State trooper during a traffic stop. The State Police argues that OOR erred in 

concluding that the recording is not exempt from disclosure under both the Rightto-Know Law, 65 P.S. §§67.101-67.3104,1

and the Criminal History Record 

Information Act (CHRIA), 18 Pa. C.S. §§9101-9183. For the reasons that follow, 

we affirm OOR’s decision.

On April 27, 2014, Grove submitted the following records request to 

the State Police:

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2

I would like to have a copy of all audio & video pertaining to 

the traffic stop made by PA state police officer #10474 

(Shrivers?) [Shivery] with Rockview barracks, against Casey J 

Grove of 103 Hidden Springs Ln, Spring Mills PA. The traffic 

stop was made at 8:53am on 4/23/14 on Commercial Blvd, 

State College PA 16801 (College Township). I specifically 

request any and all audio/video from 8:30am until conclusion of 

the traffic stop, as well as any radio audio and transcript 

between the officer, fellow officers, headquarters, and 

supervisors from 8:30am until the conclusion of the traffic stop. 

Traffic stop was for an obstruction of license plate.

Reproduced Record at 1a (R.R.__). The State Police’s Deputy Agency Open 

Records Officer, Lissa Ferguson, denied Grove’s request by letter dated June 4, 

2014. Ferguson explained that the requested “Mobile Video Recording (MVR)”

was exempt from disclosure as an investigative record under Section 708(b)(16) of 

the Right-to-Know Law, 65 P.S. §67.708(b)(16), and Section 9106(c)(4) of 

CHRIA, 18 Pa. C.S. §9106(c)(4). R.R. 2a. Because Ferguson concluded that all 

responsive video recordings are exempt, she did not describe the particular 

recording requested to show how, in fact, it was investigative. Ferguson further 

explained that the State Police did not possess audio recordings or transcripts 

responsive to Grove’s request.

Grove appealed to OOR, arguing that the State Police’s invocation of 

the investigative exemption was overbroad. In this case, it did not show that the 

recording related to a criminal investigation. According to Grove, he did not

receive a citation, and the warning he received from Trooper Shivery for 

“obstruction of license plate” was later determined to be unfounded by Centre 

County Sheriff Dennis Nau. R.R. 12a.

In its response to Grove’s appeal, the State Police argued that OOR’s 

prior decision in Keller v. Pennsylvania State Police, Dkt. AP 2014-0241 (March 
3

13, 2014), was controlling. In that case, OOR held that mobile video/audio 

recordings are barred from disclosure under Section 708(b)(16) of the Right-toKnow Law. The State Police also cited OOR’s decision in Otto v. Pennsylvania 

State Police, Dkt. AP 2013-2323 (January 3, 2014), which was cited in Keller. 

Finally, the State Police provided an affidavit of their Agency Open Records 

Officer, William A. Rozier, J.D., confirming that there were no audio recordings 

responsive to Grove’s request and stating as follows with regard to the mobile 

video recording:

11. A review of the [Mobile Video Recording] details a 

traffic stop conducted by Trooper Shivery regarding an inprogress vehicle code violation. Although the “on person” 

microphone was active, it did not record the encounter as 

indicated by the MVR and [Mobile Video Recording]

download request form.

12. In accordance to PSP Field Regulation 6-12, Troopers 

should endeavor to use the [Mobile Video Recordings] for 

incidents involving traffic and enforcement stops and inprogress vehicle and crimes code violations.

Rozier Aff., June 25, 2014, at ¶¶11-12; R.R. 18a.

On review, OOR affirmed in part and reversed in part. Specifically, 

OOR affirmed that the State Police was under no obligation to produce audio 

recordings and transcripts that do not exist. However, OOR reversed the State 

Police’s decision to withhold the mobile video recording for the stated reason that 

it was “investigative” in nature. OOR expressly reversed Otto and Keller, holding 

that those decisions were overbroad because they created a blanket exemption for 

mobile video recordings without first considering whether the recording at issue is, 

in fact, investigatory in nature. OOR further explained:
4

[A Mobile Video Recording’s] purpose is to document traffic 

stops conducted by law enforcement. As such, [a Mobile Video 

Recording] is a routine and automatic function of police work 

and does not inherently relate to any specific investigation. 

Further, [a Mobile Video Recording] does not reveal whether 

an investigation has been instituted or the progress of an 

ongoing investigation. Therefore, the record itself – a video –

is not “investigatory” in nature, even though it may be or has 

been obtained and used as evidence during an investigation. 

The video merely chronicles factual events with no indication 

of whether an investigation has commenced, is ongoing or will 

occur. The start of an investigation does not automatically 

convert a public record into an exempt one.

OOR Adjudication at 5 (emphasis added). The State Police petitioned this Court to 

review OOR’s decision.

On appeal,2the State Police contend that the mobile video recording

of Grove’s traffic stop is exempt from disclosure under Section 708(b)(16) of the

Right-to-Know Law and CHRIA because it is investigative in nature.3 The State 

Police also filed an application to supplement the record with an additional

affidavit by Rozier dated December 31, 2014, that provides more details about the 

mobile video recording.

We consider, first, the State Police’s application to supplement the 

record with Rozier’s December 31, 2014, affidavit. Under our de novo standard of 

review, this Court has “the authority to expand [the] record” in a Right-to-Know 

Law case when doing so will help us resolve the matter. Bowling v. Office of Open 

Records, 75 A.3d 453, 476 (Pa. 2013). “Consideration of additional evidence is 

 

2 When considering an appeal from the OOR under the Right-to-Know Law, this Court exercises 

plenary, de novo review. Bowling v. Office of Open Records, 75 A.3d 453, 476 (Pa. 2013).

3 Grove was precluded from participating in this appeal.
5

particularly appropriate where the requested items involve law enforcement or 

public security issues and the OOR record contains no information on their nature 

and content.” Pennsylvania State Police v. Grove, ___ A.3d ___ (Pa. Cmwlth., No. 

1146 C.D. 2014, filed July 7, 2015) at 4.

The State Police argues that, in its appeal to OOR, it relied upon

OOR’s prior rulings in Otto and Keller that mobile video recordings were 

inherently investigative in nature and therefore exempt. Thus, the State Police’s 

record before the OOR, including Rozier’s original affidavit of June 25, 2014, was

devoid of information on the purpose of a mobile video recording, details about the 

recording of Grove’s traffic stop, and the State Police’s reasoning for claiming the 

recording is exempt. Rozier’s supplemental affidavit aims to fill in those gaps.

Given this unusual circumstance, and the limited amendment to the 

record, we will grant the State Police’s application to supplement the record and 

not remand the matter to OOR. Rozier’s supplemental affidavit provides facts 

necessary to determine whether the mobile video recording at issue is investigative 

in nature. See also Grove, slip op. at 3-5 (granting State Police’s application to 

supplement record with affidavit of William Rozier in factually similar case). 

In his affidavit, Rozier states that the mobile video recording system 

in a police vehicle is activated when the trooper activates the emergency lights or 

siren. Pursuant to the State Police’s internal field regulations, troopers “shall 

endeavor” to use this technology to record, inter alia, “[t]raffic and criminal 

enforcement stops,” “[i]n-progress Vehicle and Crimes Code violations,” and 

“[p]olice pursuits.” Rozier Aff., December 31, 2014, at ¶14.4 Rozier confirms that 

 

4

Pursuant to the field regulation, state troopers shall also endeavor to record field interviews, 

interrogations and intoxication testing; patrol vehicle travel and movements when emergency 

(Footnote continued on the next page . . .)
6

he “personally viewed the MVR that is the subject of this appeal and it clearly 

depicts a traffic stop conducted by Trooper Shivery regarding an in-progress 

vehicle code violation, resulting in a written warning being issued [to Grove].” Id.

at ¶16. Rozier describes the events recorded in the video as follows:

The [Mobile Video Recording] begins with a maroon Nissan 

Frontier pickup truck being visible through Trooper Shivery’s 

windshield. The pickup truck then makes a right hand turn 

followed by a left hand turn before stopping. Trooper Shivery’s 

cruiser then pulls up behind the vehicle. Trooper Shivery can 

then be seen approaching the driver side of the pickup truck and 

then engaging in conversation with the driver. The driver then 

hands Trooper Shivery paperwork and Trooper Shivery returns 

to his vehicle. After some time passes, Trooper Shivery can 

then be seen again approaching the driver side of the pickup 

truck and returning paperwork to the driver, engaging in 

conversation with the driver, and then handing a written 

warning to the driver. The [Mobile Video Recording] ends 

following the end of the traffic stop. 

Id. at ¶11. Rozier attests that the purpose of a written warning “is to provide 

written notification of a violation of the Vehicle Code to an individual when a 

Traffic Citation is not issued due to the minor nature of the violation, or due to 

insufficient evidence for a prosecution.” Id. at ¶16. With the record now 

complete, we consider the merits of the State Police’s petition for review.

The Right-to-Know Law requires Commonwealth agencies to provide 

public records upon request. Section 3.1 of the Right-to-Know Law, 65 P.S. 

 

(continued . . .)

lights and/or siren are activated; fatal crash or major crime scenes, as necessary, to document the 

scene; traffic safety and sobriety checkpoints; prisoner transports; searches of vehicles and/or 

persons; and any other incident the trooper deems appropriate while acting in the performance of 

his or her official duties. Rozier Aff., December 31, 2014, at ¶14.
7

§67.301. A record is presumed to be a “public record” unless it is exempt from 

disclosure under Section 708 of the Right-to-Know Law, 65 P.S. §67.708; exempt 

from disclosure under federal or state law, regulation or judicial decree; or 

protected by privilege. Section 102 of the Right-to-Know Law, 65 P.S. §67.102 

(defining “public record”). A government agency claiming that a requested record 

is exempt from public access must prove by a preponderance of evidence that the 

claimed exemption applies. Section 708(a)(1) of the Right-to-Know Law, 65 P.S. 

§67.708(a)(1). A preponderance of the evidence standard, the lowest evidentiary 

standard, is tantamount to “a more likely than not” inquiry. Carey v. Department 

of Corrections, 61 A.3d 367, 374 (Pa. Cmwlth. 2013). 

Exemptions from disclosure under the Right-to-Know Law are 

narrowly construed. Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa. 

Cmwlth. 2014). The so-called “criminal investigation” exemption states that a 

requester shall not have access to “[a] record of an agency relating to or resulting 

in a criminal investigation,” including “[i]nvestigative ... videos.” 65 P.S. 

§67.708(b)(16)(ii).

5

The Right-to-Know Law does not define “criminal 

investigation.”

 

5

In full, Section 708(b)(16) of the Right-to-Know Law exempts the following from public 

access:

(16) A record of an agency relating to or resulting in a criminal investigation, 

including:

(i) Complaints of potential criminal conduct other than a private 

criminal complaint.

(ii) Investigative materials, notes, correspondence, videos and 

reports.

(iii) A record that includes the identity of a confidential source or 

the identity of a suspect who has not been charged with an offense 

to whom confidentiality has been promised.

(Footnote continued on the next page . . .)
8

Section 9106(c)(4) of CHRIA prohibits the disclosure of 

“investigative information” to departments, agencies, or individuals that are not 

classified as criminal justice agencies. 18 Pa. C.S. §9106(c)(4).6 CHRIA defines 

 

(continued . . .)

(iv) A record that includes information made confidential by law or 

court order.

(v) Victim information, including any information that would 

jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of a 

criminal investigation, except the filing of criminal 

charges.

(B) Deprive a person of the right to a fair trial or an 

impartial adjudication.

(C) Impair the ability to locate a defendant or 

codefendant.

(D) Hinder an agency’s ability to secure an arrest, 

prosecution or conviction.

(E) Endanger the life or physical safety of an 

individual.

This paragraph shall not apply to information contained in a police blotter as 

defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by 

the Pennsylvania State Police, local, campus, transit or port authority police 

department or other law enforcement agency or in a traffic report except as 

provided under 75 Pa. C.S. §3754(b)(relating to accident prevention 

investigations).

65 P.S. §67.708(b)(16) (emphasis added).

6

Section 9106(c)(4) of CHRIA states:

Investigative and treatment information shall not be disseminated to any 

department, agency or individual unless the department, agency or individual 

requesting the information is a criminal justice agency which requests the 

information in connection with its duties, and the request is based upon a name, 

fingerprint, modus operandi, genetic typing, voice print or other identifying 

characteristic. 

18 Pa. C.S. §9106(c)(4).
9

“investigative information” as “[i]nformation assembled as a result of the 

performance of any inquiry, formal or informal, into a criminal incident or an 

allegation of criminal wrongdoing and may include modus operandi information.” 

18 Pa. C.S. §9102.

Here, the State Police argues that OOR erred in holding that the 

mobile video recording was not “investigatory” in nature and, thus, not exempt 

from disclosure. The State Police contends that under Section 708(b)(16) of the

Right-to-Know Law, it need show only that the record “relates to or results in” a 

criminal investigation. OOR misinterpreted Section 708(b)(16)’s broad general 

exemption by importing language from the more specific example in subsection 

(b)(16)(vi)(A)7and requiring the State Police also to show that disclosure will 

reveal whether an investigation has been instituted or the progress of an ongoing 

investigation. The State Police further argues that it satisfied its burden of proving 

an exemption under Section 708(b)(16) by a preponderance of evidence. 

Specifically, the State Police asserts that the affidavit of Rozier establishes that the 

mobile video recording related to a criminal investigation because it depicted a 

traffic stop for an in-progress vehicle code violation. For the same reason, the 

State Police argues that the recording is exempt from disclosure under “state law,” 

i.e., CHRIA, and therefore not a “public” record. 

This Court recently addressed a request for access to mobile video 

recordings in Pennsylvania State Police v. Grove, ___ A.3d ___ (Pa. Cmwlth., No. 

1146 C.D. 2014, filed July 7, 2015).8 In Grove, State Troopers Vanorden and 

Thomas each responded to the scene of a two-vehicle accident. Both of their 

 

7

See n.5, supra, for the text of Section 708(b)(16)(vi)(A).

8 Although the requesters in these cases share the same surname, the cases are unrelated.
10

vehicles generated mobile vehicle recordings. Trooper Vanorden’s recording did 

not contain an audio component, but it showed the trooper speaking with the two 

drivers and directing one of them to move his vehicle. Trooper Thomas’ recording 

contained both video and audio of his interviews of the two drivers and bystanders 

concerning the accident. The requester sought access to both recordings. The 

State Police denied the request on the basis that the recordings were exempt from 

disclosure under Section 708(b)(16) and CHRIA because they related to a motor 

vehicle accident which resulted in traffic citations, which are summary criminal 

offenses. Further, one of the troopers investigated the accident before issuing the 

citations. The requester appealed to OOR, which reversed the State Police’s 

decision and, in doing so, also reversed its prior decisions in Keller and Otto

holding that mobile vehicle recordings are inherently investigative. The State 

Police petitioned for this Court’s review.

This Court affirmed OOR’s determination and ordered the State 

Police to provide the requester with unredacted copies of the Vanorden recording

and the video component of the Thomas recording.

9

 We rejected the State Police’s 

argument that the video recording documented a criminal investigation simply

because the traffic accident resulted in a citation. We stated that “[t]he mere fact

that a record has some connection to a criminal proceeding does not automatically 

exempt it under [the Right-to-Know Law or CHRIA].” Grove, slip op. at 8. We 

further explained that the State Police’s evidence demonstrated that

the [Mobile Video Recordings] are created to document 

troopers’ performance of their duties in responding to 

 

9 We remanded the case to permit the State Police to redact the audio portions of the Thomas 

recording to the extent they contained witness interviews or utterances of private individuals who 

had no notice of the recording.
11

emergencies and in their interactions with members of the 

public, not merely or primarily to document, assemble or report 

on evidence of a crime or possible crime. The [Mobile Video 

Recording] equipment is activated when an officer’s sirens or 

emergency lights are turned on, a non-investigative event. 

Moreover, [the State Police use Mobile Video Recordings] to 

document the entire interaction and actions of the trooper, 

including actions which have no investigative content, such as 

directions to motorists in a traffic stop or at an accident scene, 

police pursuits, and prisoner transports. [Mobile Video 

Recordings] themselves are therefore not investigative material 

or videos, investigative information, or records relating or 

resulting in a criminal investigation exempt from disclosure 

under Section 708(b)(16) of the [Right-to-Know Law] or 

[CHRIA].

Id. at 9-10 (internal citations omitted and emphasis added).

In sum, Grove held that mobile video recordings are not automatically 

exempt under Section 708(b)(16). Further, the State Police did not prove by a 

preponderance of evidence that the video recordings were exempt as records 

relating to a criminal investigation. According to Rozier’s affidavit, the Vanorden 

recording depicted the trooper “speaking with the operators of the vehicles,” 

“observing the crash scene and the damage to the vehicles,” and “directing the 

operator of the truck ... to move his vehicle.” Grove, slip op. at 11. We concluded 

that these activities did not constitute “investigative content,” which we suggested 

would include activities such as taking measurements, collecting evidence, or 

physically inspecting or analyzing an accident scene. Similarly, we held that the 

State Police offered no evidence that the video component of the Thomas 

recording depicting the trooper having conversations with the drivers and 

bystanders was investigative in nature.
12

The case sub judice is virtually indistinguishable from Grove. 

According to Rozier’s affidavit, the recording in this case depicts an “in-progress 

vehicle code violation,” i.e., obstruction of a license plate, that resulted in a 

warning. In Grove, the activity recorded actually did result in a traffic citation, i.e., 

a summary criminal offense. Nevertheless, we found the connection to a criminal 

investigation too tenuous to allow the State Police to claim the recording to be 

exempt as investigatory in nature. Here, “the connection to a criminal proceeding” 

is non-existent. Grove, slip op. at 4. Grove received only a warning. Based on the 

principles established in Grove, the recording requested by Grove is not exempt 

from disclosure under the Right-to-Know Law or CHRIA. 

Accordingly, we affirm the Final Determination of the Office of Open 

Records.

 ______________________________

 MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

:

v. : No. 1646 C.D. 2014

:

Casey Grove, :

Respondent :

O R D E R

AND NOW, this 28th day of September, 2015, the Application of 

Petitioner Pennsylvania State Police to Supplement the Record is GRANTED. The

Final Determination of the Office of Open Records dated August 18, 2014, in the 

above-captioned matter is hereby AFFIRMED.

 ______________________________

 MARY HANNAH LEAVITT, Judge