Ballard Spahr 1735 Market Sree, ist oe ney B, Hockeime, J. Philadelphia PA p.05-7599, Tel: 215.868 204 181 215.6558500 Fax: 215 864.8999 25 86548999 hockeimerhblladepohrcom vw balladspahe com September 16, 2015 Via E-mail Magdalene C. Zeppos, Esq. Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 Re: OOR Dkt. AP 2015-1793 Dear Appeals Officer Zeppos: ‘We write in response to official denial of our right-to-know request and corresponding explanation provided on September 15, 2015 by Neil A. Grover, the Harrisburg City Solicitor. According to Mr. Grover, our request for documents belonging to the City of Harrisburg has been denied as precluded by the Investigating Grand Jury Act, 42 Pa, Cons. Stat. § 4549 and the exemption from disclosure for “tecord{s] of an agency relating to or resulting in a criminal investigation” contained in 65 Pa. Cons. Stat. § 67.708(b)(16). Both grounds for denial are plainly without any legal basi. Contrary to Mr. Grover’s position, nothing in the law concerning grand jury secrecy transforms public documents into non-public grand jury materials simply because the requested records concern the City of Harrisburg and an investigation into official conduct of City of Harrisburg public officials, is ongoing. Indeed, this overbroad interpretation has been squarely rejected. See Levy v. Senate of Pennsylvania, 65 A.3d 361, 365 (Pa. 2013). Second, the exception set forth at 65 Pa, Cons. Stat, § 67.708(b)(16) exempts from disclosure any record of an agency concerning a criminal investigation, such as investigative materials, notes, witness statements, correspondence, and reports. Section 67.708(b)(16) provides: Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act: A record of an agency relating to or resulting in a criminal investigation, including: @ Complaints of potential criminal conduct other than a private criminal complaint. ‘Adana | Bakinoe | Betesie | Delaware | Desner | Las Vegas | Los Angeles | NewJeney | New York | Pilaphie | Poesia SakateChy | SsnDigo | Wathngen DC | wwurlaratesomMagdalene C. Zeppos, Esq. September 16, 2015 Page 2 (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. (¥) 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, (B) Endanger the life or physical safety of an individual ‘As the Pennsylvania Commonwealth Court has recognized, this exemption applies only to “fijnformation assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing,” Pa. State Police v. Grove, 2015 Pa. ‘Commw. LEXIS 287, at *9 (Pa. Commw. Ct, 2015). In other words, the exemption applies to materials that reflect or contain investigative materials. See Pa. State Police v. Office of Open Records, 2010 PA. Commw. Unpub. LEXIS 698, at *6 (Pa. Commw. Ct. 2010). We have not made ‘any request for documents concerning any investigation. Rather, we seek clearly public records, including internal City of Harrisburg memoranda, documents reflecting the appropriation of public funds, financial reports, and other materials. These documents in no way reflect any investigative materials and are, therefore, not subject to the exemption contained in § 67.708(b)(16). Finally, Mr. Grover’s justification for denying our requests are disingenuous, at best, as his office has complied with numerous right-to-know requests submitted by other parties seeking the precise information we have sought and/or which are a part of the Statewide Investigating Grand Jury. For instance, an April 16, 2015 article on theburgnews.com is headlined “Mayor's Receipts For Artifact Purchases May Factor in Grand Jury Probe” and describes and reproduces numerous receiptsMagdalene C. Zeppos, Esq. September 16, 2015 Page 3 purportedly for artifact purchases that make up the subject matter of the Grand Jury Investigation. ‘The article goes on to explain that the records were provided “in response to a right-to-know request.” Similarly, a June 2, 2015 pennlive.com article headlined “Witness: Grand Jury Questioned, Him On former Mayor Stephen Reed's Artifact Purchases” discusses and describes receipts and other public records that “PennLive obtained from the city of Harrisburg through a Right to Know request.” In these and many more instances, the City of Harrisburg has timely provided other parties, the same materials it now denies us through similar right-to-know requests. Accordingly, because the City of Harrisburg has failed to provide any valid legal justification for denying our right-to-know requests, we respectfully request an order overturning the City’s decision and commanding Mr. Grover to produce to us the requested public records. Very truly yours, Henry E. Hockeimer, Jr, HEHvle ce: Neil A. Grover