FINAL DETERMINATION

IN THE MATTER OF
AUSTIN NOLEN,
Requester
v.
PHILADELPHIA POLICE
DEPARTMENT,
Respondent

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Docket No.: AP 2015-0376

INTRODUCTION
Austin Nolen (Requester) submitted a request (Request) to the Philadelphia Police
Department (Department) pursuant to the Right-to-Know Law (RTKL), 65 P.S. 67.101 et
seq., seeking police shift logs for two days in December 2014. The Department denied the
Request, stating that public disclosure of the records would result in a threat to personal security
and public safety. The Requester appealed to the Office of Open Records (OOR). For the
reasons set forth in this Final Determination, the appeal is denied and the Department is not
required to take any further action.
FACTUAL BACKGROUND
On January 27, 2015, the Request was filed, seeking:
I.

Shift logs (i.e. records reflecting which officers were working which
shifts) for the 15th District on the dates of December 14th & 15th, 2014;

II.

75-67 forms/Daily Complaint Summaries & 75-158 forms/Patrol Activity

Logs for the already identified district and dates.

On February 3, 2015, the Department invoked a thirty day extension of time to respond to the
Request pursuant to 65 P.S. 67.902. On March 5, 2015, the Department denied the Request
stating that records relate to criminal and noncriminal investigations, 65 P.S. 67.708(b)(16)(17), and the disclosure of these records would jeopardize public safety, 65 P.S. 67.708(b)(2).
The Department also denied the Request for the 75-67 forms/Daily Complaint Summaries,
stating that no records exist.
On March 16, 2015, the Requester appealed to the OOR, challenging the partial denial
and stating grounds for disclosure.1 The OOR invited both parties to supplement the record and
directed the Department to notify any third parties of their ability to participate in the appeal
pursuant to 65 P.S. 67.1101(c).
On April 1, 2015, the Department submitted a position statement in response to the
appeal, along with an affidavit in support. The Department reiterates that the records sought are
not public records under Section 708(b)(2) and Section 708(b)(17) of the RTKL; however, the
Department also states that the public disclosure of the shift logs would threaten the personal
security of an individual, 65 P.S. 67.708(b)(1).2
On April 3, 2015, the Requester submitted his position statement arguing, among other
things, that the shift logs are more than four months old and would no longer pose a threat to
public safety if released. He also states that the City may redact undercover or covert officers
1

The Requester challenges only the denial of Item 1 of the Request seeking police shift logs. As the Requester does
not challenge the remaining items of the Request, the Requester has waived any objections regarding the sufficiency
of the responsive information provided by the Department. Accordingly, this discussion is limited to the item
identified by Requester as being at issue in his appeal. See Dept of Corrections v. Office of Open Records, 18 A.3d
429 (Pa. Commw. Ct. 2011).
2
While the Department did not cite Section 708(b)(1) as a basis for denial in its response, the Department is not
precluded from raising new grounds for denial on appeal. See Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013).

identified in the shift logs pursuant to 65 P.S. 67.708(b)(6)(iii). The Requester also states that
the evidence submitted by the City does not meet its burden of proving that the records are
exempt under any of the asserted exemptions.
On April 17, 2015, after further inquiry of the OOR, the Department submitted an
additional affidavit addressing the Requesters assertion that the records would no longer pose a
threat to public safety since the logs reflect shifts from four months prior.
In his appeal, the Requester also requested that the OOR conduct an in camera inspection
of the shift logs. However, the Department has provided sufficient evidence of what is contained
within the shift logs and the OOR has enough evidence to properly adjudicate the matter.
The Requester has agreed to allow the OOR until May 1, 2015 to issue a Final
Determination in this matter. See 65 P.S. 67.1101(b)(1).
LEGAL ANALYSIS
The objective of the Right to Know Law ... is to empower citizens by affording them
access to information concerning the activities of their government. SWB Yankees L.L.C. v.
Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is
designed 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. Commw. Ct. 2010), affd 75 A.3d
453 (Pa. 2013).
The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65
P.S. 67.503(a). An appeals officer is required to review all information filed relating to the
request. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an
appeal. The decision to hold a hearing is discretionary and non-appealable. Id. The law also

states that an appeals officer may admit into evidence testimony, evidence and documents that
the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id.
Here, neither party requested a hearing and the OOR has the necessary, requisite information and
evidence before it to properly adjudicate the matter.
The Department 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
P.S. 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. 65
P.S. 67.901. An agency bears the burden of proving the applicability of any cited exemptions.
See 65 P.S. 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 fact-finder to find that the existence of a contested fact is more probable
than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.
2011) (quoting Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827
(Pa. Commw. Ct. 2010)).
The Department identifies the responsive records as shift logs, which are used to record
officer duty assignments during a particular shift at a particular police district. The Department
states that the police shift logs are exempt from disclosure under Section 708(b)(2) of the RTKL.

Section 708(b)(2) of the RTKL exempts records 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). In
order to establish this exemption, an agency must show: (1) the record at issue relates to law
enforcement or public safety activity; and (2) disclosure of the record would be reasonably likely
to threaten public safety or a public protection activity. Carey v. Department of Corrections, 61
A.3d 367, 374-75 (Pa. Commw. Ct. 2013); Adams v. Pennsylvania State Police, 51 A.3d 322
(Pa. Commw. Ct. 2012).

Reasonably likely has been interpreted as the likelihood that

disclosure would cause the alleged harm requiring more than speculation. Carey, 61 A.3d at
375; Governors Office of Administration v. Purcell, 35 A.3d 811 (Pa. Commw. Ct. 2011); Lutz
v. City of Philadelphia, 6 A.3d 669 (Pa. Commw. Ct. 2010).
The Department performs law enforcement and public safety functions in the city of
Philadelphia. As the records at issue relate to the Department performing these functions, the
first element is met. The Department must also prove that disclosure of the records at issue
would be reasonably likely to jeopardize public safety and/or preparedness.
The Department submitted a statement made under penalty of perjury from Lieutenant
Edward Egenluaf, Open Records Officer the Department. Although the Requester challenges the
sufficiency of the Departments affidavit from Lt. Egenlauf, suggesting that he has been a
veteran of the Department and has not explained how he has personal knowledge of the
requested records, Lt. Egenlauf attests that he worked for the Department for 33 years and spent
26 of those years on patrol in various capacities, including foot and vehicle patrols of the City.
He further attests that he is familiar with the records sought in this appeal, i.e. shift logs. As

such, the Department presents a sufficient foundation to show that Lt. Egenlauf has personal
knowledge as to what records are held by the Department and the facts contained therein.
Here, Lt. Egenlauf attests that:
4. The records sought entirely consist of information on the number of officers on
duty during a particular shift, which officers are on duty during that shift, what
their assignments are during that shift, which locations within that particular
police district they are assigned to patrol, whether they are assigned to a foot
patrol or police vehicle, which officers are in plain clothes or in uniform, which
are on sensitive or covert assignments .
5. The disclosure of this information would indicate for a given shift the entire
manpower of a police district, the locations and types of focused policed activity,
which patrol cars have only one officer assigned, and the priority of police
assignments.
6. The disclosure would also indicate patterns of police activity within a district,
including but not limited to the areas and periods of time of sustained and focused
police activity; the areas and period of time of light or nonexistent police activity:
the type(s) of crimes on which police resources are being focused; the type(s) of
crime(s) on which few police resources are being focused; identities of the officer
most frequently assigned to plainclothes, sensitive or cover assignments The
more shift logs are disclosed, the more apparent these patterns would become.
7. A criminal with access to this information would be able to use it in the
following ways to avoid detection and/or arrest:
a. By avoiding areas and times of focused police activity, instead engaging in
criminal act when police activity and strength is focused elsewhere
b. By predicting vulnerabilities and gaps in police manpower
c. By monitoring the police presence in an area, looking for gaps in police
surveillance

g. By learning of shifts in tactics and prioritization of police activity

h. By learning of the police districts methods of general prioritization...
.
9. Therefore, the disclosure of the requested records to criminals and other illintentioned actors would be reasonably likely to result in more criminal activity,

reduced and/or hindered crime detection and prevention, and threats to officer
safety.
While determined on a case by case basis, the OOR has previously held that the work
schedules of police officers are generally exempt under Section 708(b)(2).

See Walker v.

Macungie Police Department, OOR Dkt. AP 2009-0509, 2009 PA O.O.R.D. LEXIS 229; see
also Varley v. Beaver County, OOR Dkt. AP 2010-0582, 2010 PA O.O.R.D. LEXIS 505. In
Walker, the police department verified that the police officers schedules are on a set rotation and
past schedules would reveal future police coverage and exposure to vulnerability on certain days,
thereby resulting in a threat to public safety or public protection.
In the instant matter, the Requester states that the shift logs would not be the same four
months later and, as a result, would be stale and not result in a threat to public safety.

In

response, the Department submitted an additional affidavit of Lt. Egenlauf, who affirms that
there are no set dates that a log becomes stale, as a police officer may be given the same
assignment for several months or years depending on the circumstances, thereby resulting in old
shift logs reflecting current assignments. Lt. Egenlauf attests that:
21. I have reviewed the two requested shift log at issue in the instant request.
23. The current information reflected by the two requested shift logs includes, but
is not limited to:
a. The identities and assignments of officers who are currently on duty on a
current Sunday or Monday whose assignments have not changed significantly
since December 14, 2014.
b. The identities of officer who are generally assigned to plainclothes,
sensitive, or covert assignments whose assignments have not changed
significantly since December 14, 2014.
.
d. Which officers are more vulnerable while currently on duty on a current
Sunday or Monday, because they are currently assigned to a patrol car without

a partner or to foot patrols rather than in vehicles, and/or because they are
currently assigned to periodically patrol specific locations.
24. Therefore, in accordance with the reasons stated above, the disclosure of the
two requested shift logs would enable a criminal to avoid detection and/or arrest,
and to plan attacks against [the Department] personnel when they are most
vulnerable:
a. By disclosing the identities and assignments of officers [who] are on duty
on a current Sunday or Monday. A criminal would be reasonably likely to use
this information to predict current vulnerabilities and gaps in police
manpower; to avoid current areas and times of focused police activity; and to
look for current gaps in police surveillance on a current Sunday or Monday.
b. By disclosing the identities of officers generally assigned to plainclothes,
sensitive, or cover assignments. A criminal would be reasonably likely to use
this information to learn the identities of officers currently assigned to
plainclothes, sensitive, or cover assignments in order to escape detection by
avoiding interacting with them altogether.
.
d. By disclosing which officers are more vulnerable while on duty on a
Sunday or a Monday, because they are regularly assigned to a patrol car
without a partner or to foot patrols rather than vehicles, and/or they are
regularly assigned to periodically patrol specific locations. A criminal would
be reasonably likely to use this information to plan an attack on a current
Sunday or a Monday
Similarly to Walker, the Department affirms that the current police shift logs have not
changed significantly since December 2014 and that the shift logs responsive to this Request
include identities and assignments of officers who are currently on duty on a Sunday or Monday.
As a result, disclosing these records would threaten public safety by revealing the pattern of
when and how many officers are on duty, by identifying the officers on duty and by revealing
when police coverage is limited. Therefore, based on the evidence provided, the Department has
established that the shift logs are exempt in their entirety and are not public records pursuant to
Section 708(b)(2) of the RTKL. Because these records are exempt in their entirety, they are

incapable of redaction. See Pennsylvania State Police v. Office of Open Records, 5 A.3d 473,
479 (Pa. Commw. Ct. 2010).
Based on this ruling, the OOR need not address the other exemptions raised by the
Department for these Items.
CONCLUSION
For the foregoing reasons, Requesters appeal is denied and the Department is not
required to take any further action. 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
Philadelphia 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: http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: April 29, 2015

_________________________
APPEALS OFFICER
JILL S. WOLFE, ESQ.

Sent to:

Austin Nolen (via e-mail only);

Jeffrey Cohen, Esq. (via e-mail);
Lt. Edward Egenlauf (via e-mail only)