OOR and the Non-Criminal Investigation Exception

September 2010Alerts

In another setback for the Office of Open Records ("OOR"), the Commonwealth Court has ruled that records collected as part of a mandatory inspection and survey are covered by the "non-criminal investigation" exception of the RTKL.

The OOR stated that this could make the "exception [one that] that swallows the rule" and that if these records were covered, then almost anything else could be, too.

The Commonwealth Court disagreed. In finding that this exception applies, the court decided that there is no requirement for a triggering event -- such as a complaint -- which the OOR had made a prerequisite for this exception. Further, the definition of "investigation" is now set by the court in this context:

Therefore, we conclude that, as used in Section 708(b)(17), the term “investigation” means a systematic or searching inquiry, a detailed examination, or an official probe

As it applied to this case, the court also decided that since all the records were gathered as part of the non-criminal investigation, that they were all covered by the exception. This meant that no part of the record had to be redacted and released.

Separately, the court chose not to address an argument concerning a second possible exception -- internal pre-decisional deliberation -- because it had already found the records were not available under the first exception.

If you have any questions about this Alert, please contact Kyle Berman at 610.397.7980 or [email protected] , or any member of Fox Rothschild’s Education Law Group.