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    The Declaration
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    This is the cover sheet and petition in Delaware County v. Austin Nolen, Civil Case No. 2014-010490 (Del. Com. Pls.). Delaware County filed the lawsuit after they lost an administrative decision in front of the Office of Open Records.

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    This is the cover sheet and petition in Delaware County v. Austin Nolen, Civil Case No. 2014-010490 (Del. Com. Pls.). Delaware County filed the lawsuit after they lost an administrative decision in front of the Office of Open Records.

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    © All Rights Reserved
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    Download as pdf
    624 views60 pages

    Cover Sheet and Petition in Delaware County v. Nolen

    Uploaded by

    The Declaration
    This is the cover sheet and petition in Delaware County v. Austin Nolen, Civil Case No. 2014-010490 (Del. Com. Pls.). Delaware County filed the lawsuit after they lost an administrative decision in front of the Office of Open Records.

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    IN THE Court oF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA COVER SHEET - NOTICE OF FILING OF MOTION OR PETITION UNDER. LOCAL RULES OF CIVIL PROCEDURE CASE CAPTION: CIVIL CASE NO. Delaware County v. Austin Nolen X ] “ (je Y 90) NATURE OF MATTER FILED: (please check ane) Ci Petition Pursuant to Rule 206.1 C1 Response to Petition [J Motion for Judgment on the Pleadings Pursuant to Rule 1034(2) (1 Motion Pursuant to Rule 2081 C1 Response to Motion 1] summary Judgment Pursuant to Rule 10 Ci Family Law Petition/Motion Pursuant to Rule 206.8 jovembe: A motion or petition was filed in the above captioned matter on the Clrequires you, Respondent, to file an Answer within twenty (20) days of the above date to this notice, or risk the entry of an Order in favor of the Petitioner. Answers must be filed and time stamped by the Office of Judicial Support by 4:30 PM on the following date 1 requires you, Respondent, to appear at a hearing/conference on the _day of _ at in Courtroom ___, Delaware County Courthouse, Media, Pennsylvania, At this hearing/conference ‘you must be prepared to present all testimony and/or argument, and must ensure that your witnesses will be present. 1 was timely answered, thus requiring the scheduling of the following hearing in the above captioned matter on: at 10:00 AM in Courtroom - You, Petitioner/Movant, are responsible for notifying all interested responding parties of this hearing date at least ten (10) days prior thereto. all parties must be prepared to present all testimony and/or argument and must ensure that their witnesses will be present 1 auatifies as an Uncontested Motion or Petition, and as such requires neither an answer from the Respondent nor the scheduling of a heating in this matter. Citas been assigned to Judge ee FOR OFFICE USE ONLY Mailing date: Processed by: = COUNTY SOLICITOR Attorneys for Delaware County COURT OF COMMON PLEAS DELAWARE COUNTY, PA CIVIL ACTION - LAW USTIN NOLEN NO. Appellee AND NOW, this : day of _ 2014, upon ation of Appellant Delaware County's Petition Requesting Judicial Review of a Final Determination of the Pennsylvania Office of Open Records and led thereto, it is hereby ORDERED and DECREED that nation dated October 30, 2014 by Appeals Officer Angela Eveler, Esquire of the Pen vania Office of Open Records is hereby reversed. BY THE COURT COUNTY SOLICITOR = ania, Esquire Attorneys for 610) 891-4072 Delaware County DE COUNTY COURT OF COMMON PLEAS Appellant DELAWARE COUNTY, PA v CIVIL ACTION - LAW NOLEN : NO. Appellee REQUEST FOR BRIEFING SCHEDULE/ORAL ARGUMENT Appellant, Delaware Countyrespectfully requests that this Honorable Court establish a briefing schedule and allow subsequent oral argument on the legal issues raised in the attached Petition Requesting Judicial Review of a Final Determination of the Pennsylvania Office of Open Records. JLE Francis J Catania) Esquire Attomey for Appéllant Delawate-Cotinty CE OF THE COUNTY SOLICITOR ront Street 19063 Catania, Esquire 1 Attorneys for Telephone: (610) 891-4072 Delaware County COUNTY COURT OF COMMON PLEAS Appellant DELAWARE COUNTY, PA iL ACTION - LAW NOLEN NO. Appellee PETITION REQUESTING JUDICIAL REVIEW OF A FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS 1. The Appellant, County of Delaware (“County Appellant”), by and through its undersigned attomey hereby appeals to the Court of Common Pleas of Delaware County, Pennsylvania, from the Final Determination, pursuant to 65 PS. $67 503(2), of Angela Eveler, Esquire, Appeals Officer for the Pennsylvania Office of Open Records (“OOR”) issued and mailed October 30, 2014, A true and correct copy of the Final Determination that Appellant asks this Honorable Court to review is attached hereto, incorporated herein and labeled Exhibit “” 2, The County Appellant is the Home Rule Charter based county government of Delaware County designated as a Second Class A County by the Pennsylvania Legislature, physically located in the southeastern corner of the vania and as such is a “Local agency” as that term is defined Right-to-Know Law ("RTKL”). See 65 P.S. §67.102 and §67.302 upon information and belief, the Appellee, Austin Nolen is an adult th a mailing address of PO Box 54560, Philadelphia, PA 19148. Austin Nolen (“Appellee”) addressed a Standard Right-to-Know Request was received by the Delaware County Open Records Officer on or about 13, 2014 requesting: “The following records of the Emergency Services Department: I. The entirety of the grant application file for the FEMA Urban Security Area Initiative granted used to purchase “SWAT One,” a 2014 Lenco BearCat; II. Training manuals and procedures for the above vehicle; III. Procedures or agreements for other agencies to request use of the above vehicle.” ‘A true and correct copy of Appellee’s request is incorporated herein by reference and attached hereto as Exhibit “2” On or about August 20, 2014, the Appellant issued a letter to Requestor/ Appellee advising Requestor/Appellee that it needed an additional thirty (30) days to respond to the request for the reasons set forth in the letter which is attached hereto incorporated herein and labeled Exhibit “3” 6. On or about August 28, 2014, the Appellant issued a letter to Requestor/Appellee denying Requestor/Appellee request, under four (4) Public Safety of the August 28, 2014 letter is attached hereto, incorporated herein On or about October 2, 2014 at 10:09 a.m., the Appellant received an email ce of Open Records asking whether the Appellant received a copy of 1 to the Oifice of Open Records. The email included a copy of ellee's September 16, 2014 appeal are attached hereto, incorporated herein and eled Exhibit “5” 8. On or about October 2, 2014 at 3:04 pm., the Appellant responded via ‘email to the Office of Open Records indicating Appellant had not previously received a copy of Appellee’s appeal to the Office of Open Records. A copy of this email of October 2, 2014 is included in the email chain attached as Exhibit “5” 9. Onor about October 2, 2014 at 3-41 p.m, the Office of Open Records responded via email to Appellant and Appellee set forth timeline of the submission of additional information, A copy of this email of October 2, 2014 is included in the email chain attached as Exhibit “5” 10. On or about October 9, 2014, Appellant submitted correspondence via email to Angela Eveler, Esquire of the Office of Open Records to the Office of Open Records indicating that the requested records were in the possession of a third party + the claimed exemptions still apply. Additionally, Appellant document which was in its possession. A copy of the complete is attached hereto, incorporated herein and labeled Exhibit “6”. On or about October 10, 2014, Appellee submitted a Memorandum of Law 2 of Open Records. A copy of the Memorandum of Law is attached hereto, herein and labeled Exhibit “7” 12. The Office of Open Records sent their Final Determination on or about October 30, 2014 to the Delaware County Office of Open Records. A true and correct copy of Office of Open Records’ Final Determination dated October 30, 2014 is incorporated herein by reference and attached hereto as Exhibit “1” 13. The record on appeal before this Honorable Court is defined by 65 PS. §67.1303(b) as: a. Pennsylvania Office of Open Record’s Final Determination (Exhibit % b. The Appellee’s request (Exhibit “2”); ¢. County/Appellant's thirty-day extension letter dated August 20, 2014 to Appellee’s Request (Exhibit “3"}; d. County/Appellant’s Response to Appellee dated August 28, 2014 (Exhibit ’4"); fe. Office of Open’ Records email chain of October 2, 2014 including a copy of Appellee’s September 16, 2014 appeal (Exhibit “5"); f County Appellant's Correspondence dated October 9, 2014 (Exhibit “6"); and, g _ Appellee’s Memorandum of Law (Exhibit “7") 14, The Final Determination is not supported by competent and/or substantial and/or any probative evidence. The Office of Open Records improperly considered facts and/or argument submitted by Appellee in his appeal which was not supported by competent evidence and not part of the initial request. 15, The purpose of the RTKL is “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. CmwIth. 2010), appeal granted in part, 609 Pa. 265, A3d 427 (2011) 16. As set forth in Exhibit "to the extent that there are records that may be responsive to Appellee’s request they are in the possession of Evalyn L. Fisher, Executive Director, Southeastern Pennsylvania Regional Task Force, 111 Camars Drive, Warminister, PA 18974, telephone number: 267-880-5177 and Appellee should make his request of that entity. 17. The County Office of Open Records does not specifically know what records that may be responsive to Appellee’ initial request are in the possession of the Southeastern Pennsylvania Regional Task Force and it is unnecessarily burdensome for Appellee to request that Delaware County Office of Open Records provide him with access to records that it does not physically have. lee would not be prejudiced by simply being required to make a Southeastern Pennsylvania Regional Task Force. The OOR Appeal Officer erred as a matter of law and abused her discretion in ordering that the County produce the records of the Southeastern Pennsylvania Regional Task Force. The OOR Appeal Officer acknowledged in the Final Determination that the County Office of Open Records had produced the invoice that it had in its possession (See Exhibit “6”) and that is not subject of this appeal 20. County Appellant respectfully requests permission to submit with this Notice and Petition of Appeal, a memorandum of law in support of its appeal which shall be deemed incorporated herein as though fully set forth prior to this Honorable Court scheduling oral argument. In addition to its substantive arguments, County ‘Appellant believes that there are important procedural/due process considerations that were violated by the Oifice of Open Records in how the appeal was decided and what standard was used in reviewing County Appellants’ denial that involved legal issues and require a complete briefing. WHEREFORE, the County Appellant prays that this Honorable Court grants this Appeal, reverses the determination of the OOR Appeal Officer and deny Appellee’s est or, in the alternative, vacate the determination of the OOR Appeal Officer and remand this matter for a new determination after the relevant parties are provided a full opportunity to present competent evidence, challenge evidence presented by the other side and make legal argument at a hearing to be conducted by the OOR Appeal Officer, Jete record to be made of any and all proceedings before the OOR Frantis}-Catania Attorney fér Ap) Delaware‘ a November o% 2014 VERIFICATION 1, Anne M. Coogan,hereby verify that Lam the duly appointed County Clerk and the duly appointed Open Records Officer of County of Delaware and that the facts zecited in the foregoing Petition of Appeal are true and correct to the best of my knowledge, information and belief; however, the aforementioned pleading was drafted by my attorney in language chosen by him in order to comply with the appropriate Rules, understand that false statements herein are made subject to the provisions of 18 Pa. CS.A. §4904, relating to unsworn falsification to authorities. ‘Anne M. Coogan, den Clerk and Open Records Officer County of Delaware Date: ih 25 /oolt CERTIFICATION OF SERVICE I certify that a true and correct copy of the foregoing Petition Requesting Judicial Review of a Final Determination of the Pennsylvania Office of Open Records was served this 25" day of November, 2014 by First Class United States with postage prepaid, upon the following: Austin Nolan PO Box 54560 Philadelphia, PA 19148 Angela Eveler, Esquire OOR Appeals Officer Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0025 Date: November Baer EXHIBIT “1” pennsylvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF : AUSTIN NOLEN, Requester 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, 63 P.S. §§ 67.101 et seq. (*RTKL") secking various records from the County's Emergency Services Department. The County denied the equest, 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 County's Emergency Services Department: 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; 1. Training manuals and procedures for the above vehicle; Il, 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 RTKL's 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(bX3) 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 unsuecessfl 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(¢), Having received no submission from the County, the COR, on October 2, 2014, contacted the County’s 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 he appeal from the OOR. The Requester subsequently agreed to extend the OOR to issue its final determination pursuant to 65 P.S. § 67.1101(0)(1). ded the County with additional time to submit supplemental information in position, Although the OOR offered mediation to the parties, neither party to the invitation, On October 9, 2014, the County submitted correspondence to the OOR stating that, to the the County has access to responsive records, it believes the cited exemptions apply. The ry for most of the records, the County asserted, was the entity identified as the eastern Pennsylvania Regional Task Fore. The County listed the contact information for che 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 Requesier filed 2 Memorandum of Law in response to the County’s 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 Foree remain withi 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 10 information concerning the activities of theit government.” SWB Yankees LLC. v. Winrermantel, 45 A.3d 1029, 1041 (Pa, 2012). Further, this important open-government law is ‘designed to promote access 10 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), aff'd 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 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 resoive an appeal. The decision to hold a hearing is discretionary and non- appealable. Jd; Giurintano v. Dep't 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 PS. § 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. 63 PS. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 PS. § 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 factefinder ... to find that the existence of a contested fact is more probable than its nonexistence.” Pa, Siate Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa, Commw. Ct 2011) (quoting Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.34 821, 827 P= Commw. Ct. 2010)), "The burden of proving a record does not exist ... is placed on the sponding to the right-to-know request." Hodges v. Pennsylvania Department of (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 west and for which it is not claiming any exemptions. The appeal as to that record, Quotation refore dismissed as moot. ‘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 diselosure pursuant to Sections 708(b)(2) and (3) of the RTKL, Section 708(b(2) exempts ftom 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)(i)-(ii). “Reasonably likely” has been interpreted as “requiring more than speculation.” Carey v, Dep't 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 control. Unsworn statements in the County's final response and correspondence filed during the course of the appeal cannot be considered competent evidence to sustain the County's burden of proof, See Housing Authority of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 216 (Pa w. Ct. 2012) (holding that unswom statements of counsel are not competent evidence): . 2048 (Phila. Com. Pl. June 28, 2011) City of Philadelphia v. Jucang, July Term 2010, holding that unswom factual statements in a legal memorandum are not evidence). Therefore, 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 of the RTKL. CONCLUSION For the foregoing reasons, the Requester’s 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: hitp://openrecords.state.pa. FINAL DETERMINATION ISSUED AND MAILED: October 30, 2014 ANGELA EVELER, ESQ. APPEALS OFFICER Sent to: Austin Nolen (via e-mail only); ‘Anne Coogan (via ¢-mail only) EXHIBIT “2” pennsylvania OFFICE OF OPEN RECORDS STANDARD RIGHT-TO-KNOW REQUEST FORM August 13th, 2014 DATE REQUESTED: REQUEST SUBMITTED BY: = [W| E-MAIL U.S. MAIL ]Fax — [_] IN-PERSON REQUEST SUBMITTED TO (Agency name & address): CONMtY of Delaware, Anne Coogan Open Records Oicer, 201 West Front Street, Room 208, Media, PA 19063 NAME oF REQUESTER Avstin Nolen P.O, Box 54560 STREET ADDRESS hiladelphia, PA 19148 CITYISTATEICOUNTY/ZIP(Reauired): TELEPHONE (Optional): EMAIL (optional): Publicrecords@jonntowery.com RECORDS REQUESTED: "Provide as much specific detail as possible so the agency can identify the Information. Please use additional sheets if necessary The following records of the Emergency Services Department: |. The entirety of the grant application file for the FEMA Urban Seourity Area Initiative grant used to purchase "SWAT One," a 2014 Lenco BearCat: |, Training manuals and procedures for the above vehicle; Ill, Procecures or agreements for other agencies to request use of the above vehicle, Yes to copies, no to inspection, no to certified copies, yes to advance notification DO YOU WANT COPIES? YES or NO DO YOU WANT TO INSPECT THE RECORDS? YES or NO DO YOU WANT CERTIFIED COPIES OF RECORDS? YES or NO DO YOU WANT TO BE NOTIFIED IN ADVANCE IF THE COST EXCEEDS $100? YES or NO ** PLEASE NOTE: RETAIN A COPY OF THIS REQUEST FOR YOUR FILES ** “TIS A REQUIRED DOCUMENT IF YOU WOULD NEED TO FILE AN APPEAL ** FOR AGENCY USE ONLY OPEN-RECORDS OFFICER: 2 Ihave provided notice to appropriate third parties and given them an opportunity to object to request DATE RECEIVED BY THE AGENCY: AGENCY FIVE (5) BUSINESS DAY RESPONSE DUE: “Public badies may fill anonymous verbal or written requesis, If the Fe provided for in this Act, the request must be in writing. (Section why information is sought or the intended use af the information unless otherw to pursue the relief and remedies ssis need not include an explanation 1d by law. (Section 708.) EXHIBIT “3” COUNTY CLERK (GOVERNMENT CENTER BUILDING 201 WEST FRONT STREET MEDIA, PENNSYLVANIA 19063, Phen (630) 91-1260 COUNCIL ‘THOMAS. MeGABRICLE ane a co0GaN cualnaiaY OUNTY CLERK Mamio s.cIvaa JR. eens August 20, 2014 ‘COLLEEN P. MORRONE. SOHN P, MefLAIN ‘DAVID, WETTE, Mr, Austin Nolen P.O, Box 54560 Philadelohia, PA 19148 Re: Right-to-Know Law Request No. 2014-183 Dear Mr. Nolen: ‘This letter acknowledges receipt by the County of Delaware Office of Open Records of your written request whicn you made under the Pennsylvania Right- to-Know Law (Act 2 of 2008, 65 P.S. § 67.101, et seq.).(‘RTKL)). This office received your request on August 13, 2014. Therefore, under the R , awritien: response to your request was due on or before August 20, 2044. This letter is provided pursuant fo that requirement. You are hereby notified that, for the reason(s) sst forth below, the County of Delaware will require an additional 30 calendar days, (2., until September 20, 2044, in which to provide a final written response to your request, Your request is under legal review which is necessary whether the requested record(s) is/are @ "public recor the RTKL. RTKL 65 P.S, §67.902(a)(4) determine Yor purposes of Thank you for writing to the County of Delaware Open Records Office, Sincerely Lae Ht Cogirs ‘Anne M, Coogan ‘Open Records Offic EXHIBIT “4” August 28, 2014 Mr, Austin Nolen P.O. Box 54560 Philadelphia, PA 19148 Re: Right-to-Know Law Request No. 2014-163 Dear Mr, Nolen: You were notified by letter from this office dated August 20, 2014 that the RTKL Office required an additional 30 calendar days, i.e., until September 20, 2014 in which to provide a final written response to your request. This letter is provided pursuant to that requirement, We have reviewed your request and determined that what you have requested is/are not "public records” for purposes of the RTKL. Consequently your request is denied for reasons set forth in Section 708 of the RTKL, specifically: The record you requested is 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 85 P.S, 67.708(b)(2) ‘The record you requested is 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 which may include documents or data relating to computer hardware, source files, software and system networks that could jeceardize computer security by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act; 65 P.S, 67.708(b)(3)(i) Mr. Austin Nolen August 28, 2014 Page 2 The record you requested is a record, the disclosure of which creates & reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system which may include lists of infrastructure, resources and significant special events, including those defined by the Federal Government in the National Infrastructure Protections, which are deemed critical due to their nature and which result from risk analy consequences assessments; antiterrorism protective measures and plans; counterterrorism measures and plans: and security and response needs assessments; and 65 P.S. 67.708(b)(3)(ii) The record you requested is a record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of @ building, public utiity, resource, infrastructure, facility or information storage system which may include building plans or infrastructure records that expose or create vulnerability through disclosure of location, configuration or security of critical systems, including public utility systems, structural elements, technology, ‘communication, electrical, fire suppression, ventilation, vasteweater sewage and gas systems. 65 P.S. 67.708(b)(3)(ii) Right to Appeal YOU HAVE A RIGHT TO CHALLENGE THIS DENIAL OF YOUR REQUEST. IN ORDER TO DO SO, YOU MUST FILE WRITTEN "EXCEPTIONS" WITH THIS AGENCY'S RIGHT TO KNOW LAW EXCEPTIONS UNIT WITHIN FIFTEEN (15 BUSINESS DAYS OF THE MAILING DATE OF THIS LETTER. YOUR WRITTEN EXCEPTIONS MUST STATE THE REASONS WHY YOU CLAIM THAT EACH IDENTIFIED RECORD IS A PUBLIC RECORD FOR PURPOSES OF THE RIGHT-TO- KNOW ACT. YOUR WRITTEN EXCEPTIONS ALSO MUST EXPLAIN WHY YOU DISAGREE WITH THE REASONS SET FORTH IN THIS LETTER FOR DENYING YOUR REQUEST. YOUR EXCEPTIONS MUST BE ADDRESSED TO THE FOLLOWING OFFICE: Terry Mutchler, Executive Director Office of Open Records Commonwealth Keystone Building 400 North Street joor Harrisburg, PA 17120 Mr, Austin Noien August 28, 2014 Page 3 1 be advise yermitted by law. this correspondence will serve to c this record with our office Sincerely. Anne M. Coogan Open Records © County of Delaware 201 W. Front Street Media, PA 19063 EXHIBIT “5” OpenRecords ‘Thursday, November 20, 2014 3:14 PM Denise Latch (dmiep@att.net) denise Jan Delavtare County; AP 2074-1421 - Response from Ms, Coogan and Mr. Nol requested Importance: High Jer, Angela [mailto:aeveler@p2.gov} ‘hursday, October 02, 2014 3:41 PM To: OpenRecords; publicrecorés@johntowery.com Subject: RE: Nolen v, Deleware County; AP 2014-1421 - Response from Ms, Coogan and Mr, Nolen recuested Importance: High Dear Ms. Coogan, he OOR will re-open the record to allow Given that the County is asserting that it did not receive notice of the appe the County an opportunity to file supplemental information/evidence in SypPAT of its position. Given the time sion in this matter, however, the County's submission should be mace 6n O° sible to extending the submission period further, such extension iS ime frame within which the OR may issue a Final constraints imposed by the ATKL for before October 8, 2014. While the OOR is am dependent on the agreement of Mr. Nolen to extend the © Determination. Please confirm your receipt of this e-mail Dear Mr. Nolen, Would you be agreeable to extending the time period within which the (OR is required to issue a det er, such that the led on of before October 30, 2014? Please advis: possible. as soon as tion wor eal that he is interested in pursuing a resolution of this that Mr, Nolen indicates in his ree DOR to mediate this appeal, both parties must agree to participate [0 he ‘to mediation, the OR will conduct a mediation. Here is lin to our Mediation Alternatively, itis no’ dispute through mediation. In order fo jon process. If the parties 2a medial Request Form: 20.%20informaivé20Med 2oRequest%20Fill%20in.odf 1 state.pa.us/public/oor/Form¥ bites://www. appeals officer wt The appeals office Mediation d -e confidential and, where mediatian fails, the appeals was not privy to who conduct the medi hich would most ny pending appeat in t ‘ediation sessions, jon will not deci successful. ree to mediation. Then, each pa » and submit the completed form and ail if you ‘edule a mediation session. let me knew vie e 2ipt, the OOR will upon s on Monday, October pate in mediation. Unless the OOR reeable to mediation, the abo you wish t Kindly advise by close of busin fat hoth parties are Ce. ‘ounty submission is due et 8, 2014) remains in pie Anasta Eveter The OOR’s Annual Training on the RTKL is being held on October 22, 2014 in Harrisburg. Details and registration forms are available at http://openrecords.state.pa.us. From: OpenRecords [mailto:OnenRecords‘co.delaware.pa.us] Sent: Thursday, October 02, 2014 3:04 PM To: Eveler, Angela Subject: RE: Nolen v. Delaware County; AP 201: 1424 fice of Ope! veler, Angela [mailto:aeveler@pa.cov] ‘Thursday, October 02, 2014 10:09 AM To: OpenRecords Ce: public ‘Subject: Nolen v, Delaware County; AP 2014-1421 jogan, e-mailed a Notice of Appeal packet to Delaware County on September 18, 2024 pertaining to ice of Open Record fase confirm whether or not the County received the Notice? (See attached) jove-referenced appeal. Can you ples ‘ank you for your time and attention in this regard. Sincerely, ‘Angela Eveler | Attorney Office of Open Records Commonwealth Keystone Bu 400 North Street, 4th Floor | Harrisburg, Pi e: 717-346-9903 | aeveler@oa.cov sw.newPA.com | www.visitPA.com ing Confidentiality Notice: Ths electronic communication is privileged and confidential and is intended only for the party ‘0 whom it is addressed. If received in error, please return to sender ‘the OOR's Annual Training on the RTKLis being held on October 22, 2014 in Harrisburg. Details and registration forms are available at http://openrecords.state.p2.us. V pen| Gence Septer Via E- Mail only: Via E- Mail only: Austin Nolen Anne M. Coogen, PO Box 54560 Open Records Officer Philadelphia, PA 19148 Delaware County Government Center Building 201 West Front Street Media, PA 19063, enrecor RE; OFFICIAL NOTICE OF APPEAL - OCKET # AP 201 Dear Parties: Please review this information carefully as it affects your legal rights. ¢ Office of Open Records (“OOR”) received this appeal under the Right-to- now Law, 65 P.S. §§ 67.101, er seg. (“RIXL”) on September 16, 2014, The process to follow in submitting information to the OOR is attached, A binding Final Determination will be issued in 30 calendar days as set forth in the RTKL ‘The Supreme Court of Pennsylvania has held that an agency is permitted to assert exemptions on appeal, even if the agency did not assert them when the request was originally denied. Levy v, Senate of Pa, 65 A.34 361 (Pa. 2013). Accordingly, the agency may supplement its response within the time irame set forth below. ‘You may submit information and legal argument to support your position by 5:00 p.m, seven (7) business days from the date on this letter, Please include the docket number above on all submissions. ‘The law requires that your position must be supported by sufficient facts and citation to all relevant sections of the RTKL, case law, and Final Determinations of the OOR. Statements of fact must be supported by an affidavit made under penalty of perjury by a person with actual knowledge. An affidavit is required to demonstrate tence of records. Blank sample afSdavits are available on our website len of proving that records are not subject to public 1 provide to OOR must be provided to all parties, Agency Must Notify Third Parties: or seourity intere: of an employee of the agency; contain confidential, proprietary or trademarked records a person or business entity; of i by acontzactor or vendor, the agency must n uch parties of this appeal immediately and provide proof of that notice to the OOR within 7 business days. Such notice must y ana 2) advising that interested persons may request to participate in this appeal ( The has held that “the burden {is} on third-party contractors ... to prove by a preponderance of the evidence that the [requested] are exemnp' legheny County Dep't of Admin. Servs. v. A Second Chance, Ine., 13 sree ds, 1042 (Pa. Commw, Ct. 2011), Failure to participate in an appeal before the OOR may be construed as a waiver of objections regarding release of the roquested records. Law Enforcement Records of Local Agencies: District Attorneys are to appoint appeals officers to hear appeals regarding access to criminal inves records in possession of a local agency. If records were denied in part upon requester may consider filing @ concurrent ap ¢ District Attorney ¢ County where the agency is located if the recor in part, because they are investigative records of a local agency. f you have qué sions, contact the assigned Appeals Officer in writing and copy Enclosures: Assigned Ay er contact information hOOR REQUEST TO PARTICIPATE AS DIRECT INTEREST PARTY Please accept this as a Request to participate as a 3 party with a di pending appeal before the Office of Open Records pursuant to 65 P.S. § 67. ‘he following stasements under penalty of perjury as more fully OOR Pocket No: Name of Direet Interest Partiefpant Information: ct E-mail Date you received actual notice of the appeal: Name of Requester: ess/CitylStatelZi Telephone/Fax Numbers_ Bee Name of Agency: a - Address/City/State/Zi Record at issue:_ ee Statement of Direct Interest Thave a direct int record(s) at issue as maployes of the agency ation or trademarked records containing confidentiel or proprictary inf Other: (attach adcitional pa o the final determination in support [L] thave atached 2's final determination, (aust be signed) Please submit this form the Appeals Officer assigned to the appeal. Remember to copy all parties on {itis correspondence. The Office of Open Records will not consider cirect interest filings submitted after a Final Determination has been issued in the appeal. pennsylvania OF OPEN RECORDS APPEALS OFFICER: Angela Kveler, Esquire CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 4400 North Street, 4" Floor Harrisburg, PA 17120-02, PHONE (717) 346-9903 EACSIMILE: (717) 428-5343, ATL Preferred method of contact and submission of information: EMAIL Please direct submissions and correspondence related to this appeal to the above Appeals Officer. Please include the case name and docket number on all submissions. You must copy the other party on evervthing you subn to the OOR. ‘nable and both involving similar The OOR website, hitp://openrec ged to review prior final determin at may impact this ap; e encour records and fees parties a Avstin Nolen 2.0, Box 5456 Philadelphia, PA 19148 pen Ri h Keystone Build eystone ‘am appealing the adverse y, Tam at [public

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