IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Diveglia, :

Petitioner :

:

v. : No. 1378 C.D. 2016

: Submitted: April 7, 2017

Pennsylvania State Police, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: September 1, 2017

Cynthia Diveglia (Requester) petitions for review of the Office of 

Open Records’ (OOR) deemed denial of her appeal of the refusal of the 

Pennsylvania State Police to provide records she requested. The OOR issued this

denial because Requester refused to give OOR an extension of time to issue a final 

determination. Requester contends that OOR erred and abused its discretion. We 

vacate and remand.

On April 6, 2016, Requester sought information from the 

Pennsylvania State Police pursuant to the Right-to-Know Law, 65 P.S. §§67.101-

67.3104.1 Specifically, Requester sought a copy of the “Dash Cam Recording -

Unedited,” commonly known as a mobile video recording (MVR), from State 

Police vehicle #H6-12 and relating to Criminal Complaint Incident #H06-2342590. 

Reproduced Record at 12a (R.R. __). The requested MVR details a police pursuit

 

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

of Requester’s vehicle that took place on November 16, 2014, and ended with her 

arrest by the State Police. She was charged with recklessly endangering another 

person; driving under the influence of alcohol or a controlled substance; and 

attempting to elude a police officer.

On May 16, 2016, the State Police denied the request for two reasons. 

First, it asserted that the MVR was exempt from disclosure under Section 

708(b)(16) of the Right-to-Know Law because it related to a criminal 

investigation.2 Second, it asserted that Section 9106(c)(4) of the Criminal History 

 

2

Section 708(b)(16) states that the following items are exempt from access by a requester under 

the Right-to-Know Law:

(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.

(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.

(Footnote continued on the next page . . .)
3

Record Information Act (CHRIA)3prohibits the State Police from releasing the 

MVR to any person other than a criminal justice agency. Thus, it would violate 

CHRIA for the State Police to comply with Requester’s Right-to-Know request. 

On May 25, 2016, Requester appealed to OOR, which requested a 30-

day extension of time to issue a final determination. Requester agreed to the 

extension. OOR confirmed that it would “issue a Final Determination in the 

above-captioned matter on or before July 25, 2016.” R.R. 31a. 

On May 31, 2016, Requester submitted her statement of facts and

legal argument. She presented several exhibits: an affidavit of probable cause in 

her criminal case prepared by the State Police; the incident report prepared by a

township police officer; and a complaint report prepared by a regional police 

officer. The exhibits recount the police pursuit of Requester’s vehicle that “was 

brought to an end with a rolling road block.” R.R. 52a. They also recount that

 

(continued . . .)

(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). 

3

It provides:

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, 

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

characteristic.

18 Pa. C.S. §9106(c)(4). 
4

when Requester was unable to perform field sobriety tests, she was driven to the 

hospital by the State Police for a blood test, which she refused. Thereafter, she 

was taken to the State Police station and charged criminally. 

On June 14, 2016, the State Police filed a response to Requester’s 

appeal. It included a verification signed by Trooper Isaac C. White, the arresting 

officer, that described the incident. After receiving a report of erratic driving, 

White located Requester’s vehicle, which was weaving in and out of its lane. He 

activated his emergency lights, which activated the MVR device. Requester did 

not stop until “forcibly stopped with the help of [local] officers.” R.R. 70a. 

The State Police also submitted an affidavit from William A. Rozier, 

its Open Records Officer, who viewed the MVR. The affidavit reported that the 

MVR showed Trooper White’s pursuit of the suspect; her apprehension; the search 

of her vehicle; and her transport by the State Police to the hospital. The transport

segment of the video was identified as the only portion that included audio, 

including Requester speaking to Trooper White.

The record contains the following e-mail correspondence between 

OOR’s Appeals Officer, Joshua T. Young, and Requester on July 13 and 14, 2016:

[Appeals Officer]: I write to request an indefinite extension of 

time to issue the Final Determination in the above-referenced 

Right-to-Know matter for the purpose of conducting an in 

camera inspection of records withheld by [the State Police]. At 

your earliest convenience, please confirm whether you will 

agree to the requested extension.

[Requester]: Is it possible to tighten up this request just a bit as 

“indefinite” is a bit broad. Could we say 30 days, or 45 days? 

If there is a reason I am certainly willing to listen to that 

reasoning, as I am fully willing to cooperate and be flexible in 

the interest of justice.
5

[Appeals Officer]: Thank you for the e-mail. It is [OOR’s] 

general practice to seek an indefinite extension of time to issue 

its Final Determination when in camera inspection of records is 

necessary, given the time needed to gather and review the 

records and prepare the Final Determination. Many requesters 

grant the OOR an indefinite extension; however, in the past, we 

have had some requesters grant the OOR a ninety-day extension 

of time with the possibility of future extensions, if needed. 

Would you be willing to grant the OOR a ninety-day extension 

of time to issue the Final Determination?

[Requester]: I apologize for not understanding your policy, 

however, I have some time constraints on my end which was 

the purpose of this request. Could you please see if you could 

possibly have the requested information to me by September 2, 

2016?

[Appeals Officer]: The OOR has requested an indefinite 

extension of time to issue its Final Determination in this matter 

because access to similar records as those at issue in the abovereferenced appeal is currently being litigated before the 

Pennsylvania Supreme Court. Additionally, an enforcement 

action has been filed in the Commonwealth Court with respect 

to the OOR’s ability to receive dash/body camera video 

recordings for in camera review. We do not believe that either 

of these actions will be resolved prior to September 2, 2016. 

Therefore, please confirm whether you will agree to an 

extension later than September 2, 2016, or to the indefinite 

extension initially requested by the OOR.

[Requester]: I do not agree to an extension of time to issue a 

Final Determination on my request, based upon the information 

that you have provided. If you feel you can provide additional 

information for my reconsideration, please do. 

R.R. 86a, 88a-89a. 

The Appeals Officer did not respond to Requester’s final e-mail. 

Instead, on July 26, 2016, OOR issued a “Decision in Lieu of Final 

Determination.” R.R. 92a. The decision stated that because “Requester declined 
6

to agree to an extension of time for the OOR to issue a final determination in this 

matter, the appeal was deemed denied by operation of law on July 25, 2016.” 

OOR Deemed Decision at 1. OOR also stated that because the State Police refused

to provide an MVR for in camera review, OOR needed an extension “in this matter 

from the Requester so that the OOR could order in camera review and, if 

necessary, pursue an enforcement action against the [State Police] related to its in 

camera order.” OOR Deemed Decision at 4. The decision further stated that the 

legal questions of whether an MVR is exempt from disclosure and whether the 

State Police must produce an MVR for in camera review by the OOR were matters 

pending before the appellate courts not likely to be decided by September 2, 2016. 

For these reasons, the OOR requested an indefinite extension of time, which 

Requester declined. As a result, OOR found itself “unable to develop the 

evidentiary record before it [and as a result] OOR decline[d] to issue a final 

determination in this matter.” OOR Deemed Decision at 5.

Requester petitioned for this Court’s review and has raised three 

issues.

4

 First, she asserts that OOR erred because she did not refuse the extension

request; she merely asked OOR to justify its request for a longer extension. 

Second, she asserts that OOR had the evidence it needed to determine the case on 

the merits and, thus, erred in not issuing a final determination. Third, she asserts 

that the State Police did not meet its burden of proving her record was exempt from 

disclosure under the Right-to-Know Law.

 

4 Our standard of review of OOR determinations is de novo, and our scope of review is plenary. 

Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). 
7

We begin with Requester’s first and second issues. In them, 

Requester asserts that OOR erred in holding that she refused to grant an extension 

but, in any case, it had the evidence it needed to decide her appeal. 

Requester notes that OOR’s Appeals Officer asked for an “indefinite 

extension” of time to conduct an in camera inspection of the MVR without 

explaining that the State Police would not likely produce the MVR for that 

purpose. Nor did the Appeals Officer inform her that OOR would not be able to 

decide her appeal on the merits without the MVR. When she asked that the

extension request be made more specific than “indefinite,” the Appeals Officer

responded that it was OOR’s “general practice to seek an indefinite extension of 

time” when an in camera review was necessary. R.R. 89a. The Appeals Officer

did not explain the origin of this “general practice.” After Requester agreed to a 

39-day extension, the Appeals Officer countered with a new reason, i.e., 

unidentified pending court cases that would not likely be decided in 39 days. 

Believing an extension of unknown duration was unreasonable, Requester invited 

the Appeals Officer to offer additional information to support his extension

request. He declined to do so and, instead, deemed her appeal denied. The 

Appeals Officer never advised Requester of this consequence should she refuse the 

extension.

The State Police respond that after Requester denied OOR’s request 

for an extension of time to conduct an in camera review of the record, OOR did 

not issue a decision. Pursuant to Section 1101(b) of the Right-to-Know Law,5if 

 

5

It provides, in relevant part:

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

OOR does not issue a final determination in 30 days, the appeal is deemed denied. 

The State Police contend that OOR’s handling of Requester’s appeal conformed 

perfectly to the dictates of the Right-to-Know Law and, thus, her petition for 

review lacks merit.

We begin with a review of the cases that informed the OOR’s deemed 

denial decision. The first case is Pennsylvania State Police v. Grove, 119 A.3d 

1102 (Pa. Cmwlth. 2015) (Grove I), affirmed in part, reversed in part and 

remanded, Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (Grove 

II).

6

 The second case is Office of Open Records v. Pennsylvania State Police, 146 

A.3d 814 (Pa. Cmwlth. 2016), which was decided by a single judge of this Court

on August 8, 2016. 

In Grove I, the requester sought two MVRs relating to a traffic 

accident. The State Police denied the request for the stated reasons that the MVRs 

were exempt under the Right-to-Know Law as investigatory records. In a final 

 

(continued . . .)

(1) Unless the requester agrees otherwise, the appeals officer shall make a final 

determination which shall be mailed to the requester and the agency within 30 

days of receipt of the appeal filed under subsection (a).

(2) If the appeals officer fails to issue a final determination within 30 days, the 

appeal is deemed denied.

65 P.S. §67.1101(b).

6

Shortly after the Supreme Court’s pronouncement in Grove II, Senate Bill No. 560 was signed 

by Governor Wolf. Act No. 2017-22 of July 7, 2017, amended Title 42 of the Judicial Code by 

adding Chapter 67A. Section 67A03 limits the disclosure of law enforcement audio and video 

recordings. 42 Pa. C.S. §67A03. Section 67A06 mandates that when a law enforcement agency 

denies a request, the appeal is not taken to OOR, but to the court of common pleas. 42 Pa. C.S. 

§67A06. 
9

determination, OOR sustained the requester’s appeal, and the State Police 

petitioned for this Court’s review.

7

The State Police argued that the MVRs were criminal investigative 

records because they involved a vehicle accident that resulted in traffic citations, 

i.e., summary criminal offenses. We held that “[t]he mere fact that a record has 

some connection to a criminal proceeding does not automatically exempt it under 

Section 708(b)(16) of the [Right-to-Know Law] or CHRIA.” Grove I, 119 A.3d at 

1108. We explained that an MVR is “created to document troopers’ performance 

of their duties in responding to 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.” Id. An MVR can include “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.” Id. However, they may 

contain information relating to a criminal investigation, including “witness 

interviews, interrogations, intoxication testing and other investigative work....” Id. 

at 1109. Where the MVR includes investigatory and non-investigatory 

information, “the agency must produce the record with the exempt information 

redacted.” Id. 

The affidavit regarding the first MVR sought by the requester stated 

that the MVR did not have an audio component; rather, it showed a trooper 

speaking to the drivers of the vehicles and photographing the crash scene. We 

 

7

The State Police explained that OOR had issued other final determinations that MVRs are 

exempt from disclosure as investigatory records. As a result, the State Police believed that it was 

unnecessary to offer a detailed description of the content of an MVR. This Court allowed the 

State Police to supplement the record with a more detailed affidavit describing the contents of 

the MVRs.
10

concluded that this affidavit did not establish that the MVR included investigative 

information and ordered the State Police to release a copy to the requester.

The affidavit regarding the second MVR, which did have an audio 

component, stated that it contained interviews of the drivers involved in the 

accident. We concluded that this audio information constituted an investigation 

that could lead to possible criminal charges. However, the video depiction of the 

conversations was not claimed to be investigative in nature. Thus, we ordered the 

State Police to redact the audio component and provide the remainder to requester.

A portion of the second MVR also included audio of police 

interactions with persons that were not claimed to be investigative interviews. We

concluded these audio interactions should be disclosed, with instructions to OOR 

on remand to consider whether they were subject to the Wiretapping and 

Electronic Surveillance Control Act (Wiretap Act), 18 Pa. C.S. §§5701-5782. 

We explained that the Wiretap Act does not apply to “non-wire oral 

communications where the speaker has notice that the conversation may be 

recorded.” Grove I, 119 A.3d at 1110. Obviously, police officers know that their 

conversations are being recorded. However, the evidence did not disclose whether 

the private citizens at the accident scene were aware that they were being recorded. 

Accordingly, we remanded the matter “to permit [the State Police], before 

providing that MVR to [r]equester, to redact from its audio component witness 

interviews and utterances of private citizens who had no notice of the recording.” 

Id. at 1111. 

The State Police petitioned for allowance of appeal to the Supreme 

Court, which granted review. In Grove II, 161 A.3d 877, our Supreme Court 

agreed that MVRs are not automatically exempt from disclosure as criminal 
11

investigative information under Section 708 of the Right-to-Know Law or under 

CHRIA. As such, whether the information contained on a requested MVR is 

exempt must be determined on a case-by-case basis. 

In Grove I, this Court remanded for consideration of whether the 

audio portion of one of the MVRs could be released under the Wiretap Act. We 

directed the State Police on remand to review the audio recordings to determine 

whether the drivers or any other private citizens who were recorded had notice of 

the recording or reason to believe they were being recorded. If so, the State Police 

could redact their utterances, subject to Requester’s appeal of that determination to 

OOR. In Grove II, the Supreme Court held that the conversations took place at an 

accident scene on a public roadway and within earshot of bystanders. As such, the 

speakers could not have had a justifiable expectation that their conversations would 

not be intercepted. In sum, Grove II reversed this Court on the issue of notice 

under the Wiretap Act, and affirmed in all other respects. 

The second case identified by OOR, Pennsylvania State Police, 146 

A.3d 814, involved three consolidated appeals of final determinations by OOR 

requiring the State Police to produce requested MVRs for in camera review. Two 

of the MVRs were created by the State Police; the third was created by the Mount 

Airy Casino but was in the possession of the State Police. The State Police refused 

to produce any of the MVRs, and OOR filed a petition to enforce the production of 

the MVRs with this Court. CHRIA prohibits the dissemination of investigative 

information “to any department, agency or individual unless the department, 

agency or individual requesting the information is a criminal justice agency,” 18 

Pa. C.S. §9106(c)(4), and this Court agreed that OOR is not a criminal justice 

agency. Citing Grove I, 119 A.3d at 1108, this Court held that an MVR is “not 
12

automatically exempt” from disclosure. Pennsylvania State Police, 146 A.3d at 

818. However, the video obtained by the State Police from the casino was found to 

be exempt from disclosure under Section 708(b)(16) of the Right-to-Know Law, 

65 P.S. §67.708(b)(16), as a record “relating” to “a criminal investigation.” 

Because a ruling on the other two MVRs hinged on the outcome of Grove II, this 

Court ordered the two petitions held in abeyance pending a decision in Grove II. 

Section 1101(b)(1) of the Right-to-Know Law requires that OOR

issue a final determination within thirty days of receipt of the appeal, unless the 

requester agrees otherwise. 65 P.S. §67.1101(b)(1). This “more streamlined 

process before appeals officers under the [Right-to-Know Law] is apparently 

designed to dispose of most disputes in an efficient and timely fashion.” Bowling 

v. Office of Open Records, 75 A.3d 453, 474 (Pa. 2013). 

In Kokinda v. County of Lehigh (Pa Cmwlth., No. 1146 C.D. 2013, 

filed January 8, 2014), OOR dismissed a requester’s appeal because the requester 

did not comply with OOR’s interim guidelines by including a copy of his request 

and the agency response. The requester appealed to the trial court. The trial court 

held that the availability of the requested document, a county prison’s visitation log 

book, could be decided by the trial court on de novo review. After conducting its 

review, the trial court denied the request. Both parties appealed to this Court. 

The county prison argued that the trial court should not have

addressed the merits of the appeal because the requester did not submit a proper 

request that conformed to OOR’s interim guidelines. We rejected this argument 

because a guideline is not a binding regulation. Noting that the trial court’s “de 

novo review may cure certain defects,” we nevertheless held that the court’s review

would not correct the OOR’s failure to fulfill its “statutory obligation to review the 
13

merits of the case.” Id., Slip Op. at 5. Accordingly, we vacated the trial court’s 

order and remanded to OOR for it to make a determination on the merits.

8

In this case, as in Kokinda, OOR has refused, improperly, to issue a 

determination on the merits. First, OOR’s Appeals Officer never explained to

Requester that OOR could not decide her case without an extension of time. 

Second, OOR had no authority to require Requester to submit to an “indefinite” 

extension. “Unless the requester agrees otherwise, the appeals officer shall make a 

final determination ... within 30 days ....” Section 1101(b)(1) of the Right-toKnow Law, 65 P.S. §67.1101(b)(1). Third, and most importantly, OOR has not 

established that it was unable to reach a decision on the merits without an 

extension. The record before OOR contained several exhibits that detail the 

content of the MVR. Requester does not dispute the State Police’s description of 

the MVR, and she submitted exhibits from her criminal case to OOR. There does 

not appear to be any controversy regarding the contents of the MVR.

OOR issued a five-page decision in support of its deemed denial, but

it did not explain why the record is inadequate. Grove I and II were decided on the 

basis of affidavits from the State Police describing the content of the MVRs at 

issue. Likewise, here, the record includes a verification from the arresting officer 

about when the recording commenced as well as an affidavit from the State Police 

describing the contents of the MVR. This information appears adequate to decide 

 

8 Our holding in Kokinda was based on Barnett v. Pennsylvania Department of Public Welfare, 

71 A.3d 399 (Pa. Cmwlth. 2013). Therein, OOR summarily dismissed a requester’s appeal 

because it was not sufficiently specific. This Court agreed that the appeal was not sufficiently 

specific, but we remanded to the OOR. We explained “that the General Assembly intended that 

an appeals officer generally have the opportunity to consider the merits of an appeal before a 

final determination is issued.” Id. at 407. 
14

the merits of Requester’s appeal. That OOR would like to do an in camera review 

does not mean it must do so.

Accordingly, we vacate OOR’s decision in lieu of a final 

determination and remand the matter to OOR to (1) reach a final determination on 

the merits, or (2) issue a decision explaining why the record before it is insufficient 

to reach a final determination on the merits.9

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

9 Because we remand, we do not address Requester’s third issue. This remand does not preclude 

OOR from seeking an extension of time from Requester.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cynthia Diveglia, :

Petitioner :

:

v. : No. 1378 C.D. 2016

:

Pennsylvania State Police, :

Respondent :

O R D E R

AND NOW, this 1st day of September, 2017, the Decision In lieu Of 

Final Determination issued by the Office of Open Records on July 26, 2016, is 

VACATED and the matter is REMANDED in accordance with the attached 

opinion.

Jurisdiction relinquished.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge