IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Judith Cassel and The Law Office of :
Hawke McKeon & Sniscak, LLP, :
Petitioners :
:
v. : No. 491 C.D. 2022
:
Department of Health (Office of :
Open Records), :
Respondent : Argued: December 12, 2022
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 10, 2023
Judith Cassel and The Law Office of Hawke McKeon & Sniscak, LLP
(collectively, Requesters) petitions this court for review of the Final Determination
Upon Reconsideration (Final Determination) of the Office of Open Records (OOR),
which concluded that records sought under the Right-to-Know Law (RTKL)1 were
exempt from disclosure pursuant to Section 708(b)(17) of the RTKL2 as they related
to the Department of Health’s (Department) non-criminal investigation into the
safety of vaporized medical marijuana products (Products). The issues on appeal
are whether the OOR erred in concluding that all records withheld by the Department
related to its non-criminal investigation or, in the alternative, whether the records at
issue were no longer exempt from disclosure once the Department revoked its
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
65 P.S. § 67.708(b)(17).
approval of certain Products. After careful review, we affirm in part and vacate in
part the OOR’s Final Determination, in part, and remand this matter to the OOR for
an in camera review of the Department’s records for purposes of determining the
exemption status thereof.
I. Background
The parties do not dispute the underlying facts in this matter. On November
16, 2021, as part of a non-criminal investigation by the Department into Products
that contain additives, Sunny Podolak (Podolak), Assistant Director and Chief
Compliance Officer of the Department’s Office of Medical Marijuana (OMM), sent
an email advising permitted medical marijuana growers and processors (Permittees)
that they must submit any Products containing additives to the Department for
approval, including Products that were previously approved.3 Reproduced Record
(R.R.) at 80a. Podolak sent Permittees a subsequent email on December 13, 2021,
requesting information about the determined safety of any additives used in their
Products.4 Id. The responses provided by Permittees were used by the Department
to evaluate Permittee compliance with the MMA, the Department’s regulations, and
other applicable laws. Id. at 81a. At the conclusion of its review, the Department
notified Permittees on February 4, 2022, that they could no longer sell any Products
containing additives not approved for inhalation by the United States Food and Drug
3
Section 301(a)(1) of the Medical Marijuana Act (MMA), enacted by the Act of April 17,
2016, P.L. 84, as amended, 35 P.S. § 10231.301(a)(1), established a medical marijuana program
that is implemented and administered by the Department. Section 301(a)(3) of the MMA explicitly
grants the Department regulatory and enforcement authority over the growing, processing, sale,
and use of medical marijuana. 35 P.S. § 10231.301(a)(3).
4
Podolak’s November 16 and December 12, 2021 emails do not appear in the certified
record (C.R.) filed with this Court.
2
Administration (FDA) and that any such Products were subject to a mandatory
recall. Id.
On December 22, 2021, Requesters submitted a RTKL request (Request) with
the Department, seeking “[a]ll documents, correspondence, and all other emails,
including but not limited to, internal and external emails, reports, complaints, and
notes” related to:
1. the OMM’s decision to use the FDA’s inactive ingredient database to
approve medical marijuana products;
2. the OMM’s November 16, 2021 decision to require that Permittees submit
Products for approval, including Products that were previously approved;
3. information that did not support the OMM’s November 16, 2021 decision;
4. any investigation made by the Department prior to November 16, 2021,
regarding the safety of terpene blends as an additive in medical marijuana products;
5. the Department’s review of Products submitted for approval pursuant to
Podolak’s November 16, 2021 email;
6. Podolak’s December 13, 2021 email to Permittees seeking information
regarding the determined safety of additives used in Products; and
7. any material received in response to Podolak’s December 13, 2021 email.
Id. at 6a-7a.
On December 30, 2021, the Department advised Requesters that it was unable
to locate any records responsive to Paragraph 1 of the Request. Id. at 9a. Although
the Department provided records responsive to Paragraph 5 of the Request, it denied
the Request with respect to Paragraphs 2-4, and 6-7, citing the exemption for non-
criminal investigative records in Section 708(b)(17) of the RTKL. Id. at 9a-10a.
3
Requesters appealed to the OOR on January 20, 2022, arguing that the
requested records were not exempt from disclosure under the RTKL or other legal
authority. Id. at 24a. Requesters also challenged the Department’s claim that no
responsive records existed with respect to Paragraph 1 of the Request, and that the
Department had produced all records responsive to Paragraph 5 of the Request. Id.
at 25a-26a. Requester asserted that, at a minimum, the Department should be
required to submit an exemption log indicating how each responsive record related
to its non-criminal investigation, followed by an in camera review by an appeals
officer, who would determine the exemption status of each record. Id. at 26a.
In its response to Requesters’ appeal, the Department submitted an affidavit
from Lisa Keefer (Keefer), the Department’s Open Records Officer, in which Keefer
detailed the process she undertook to identify the relevant records. Id. at 61a. After
reviewing the results of her search, Keefer concluded there was “no reason to believe
that the Department [had] responsive records to Paragraph 1 of the [R]equest within
its custody or control.” Id. at 62a. The Department maintained that any responsive
records it possessed were utilized to initiate and conduct a non-criminal investigation
under the MMA. Id. at 52a, 54a-55a. In support, the Department submitted a
February 4, 2022 affidavit from Podolak, who confirmed that the records sought in
Paragraphs 2 and 4-7 of the Request related to the Department’s non-criminal
investigations into the safety of Products containing additives. Id. at 65a-66a. As
to Paragraph 3 of the Request, the Department argued that it was insufficiently
specific under Section 703 of the RTKL, which requires that a written request for
records “identify or describe the records sought with sufficient specificity to enable
the agency to ascertain which records are being requested . . . .” 65 P.S. § 67.703.
4
Id. at 50a. The Department disagreed with Requesters that an exemption log or in
camera review was necessary. Id. at 56a.
Following a request from the OOR for additional evidence, the Department
provided a supplemental affidavit from Podolak, in which Podolak clarified that
records withheld by the Department related to a single non-criminal investigation.
Id. at 80a. The results of this investigation prompted the Department’s February 4,
2022 notification to Permittees that they could no longer produce Products
containing non-FDA approved additives and that existing Products containing non-
approved additives were subject to mandatory recall procedures. Id. at 81a.
The OOR issued a decision on March 1, 2022, which granted in part and
denied in part Requesters’ appeal.5 C.R., Ex. 13 at 1. The OOR acknowledged that
Requesters sought an in camera review of the Department’s records; however, the
OOR felt it could decide the matter on the evidence presented. Id. at 5. To that end,
the OOR concluded that Keefer’s affidavit satisfied the Department’s burden of
proving that it did not possess any records responsive to Paragraph 1 of the Request.
Id. at 7. The OOR rejected the Department’s argument that Paragraph 3 of the
Request was insufficiently specific, as the Request was limited by scope and “an
implicit timeframe” to records that did not support the OMM’s November 16, 2021
decision. Id. at 8-9. The OOR noted that the Department was able to identify records
responsive to Paragraph 2 of the Request, which sought similar records, albeit those
that supported the OMM’s decision. Id. at 10. Accordingly, the OOR concluded
that Paragraph 3 of the Request was sufficiently specific to enable a good faith search
by the Department. Id. at 9.
5
The OOR stated that it had the necessary information and evidence to adjudicate the
matter and that an in camera review of Department reviews was unnecessary. C.R., Ex. 13 at 7.
5
In evaluating the exemption status of records sought in Paragraphs 4-7 of the
Request, the OOR recognized that the Department has exclusive regulatory and
enforcement authority over the growing, processing, sale, and use of medical
marijuana in Pennsylvania. Id. at 16. In conducting its non-criminal investigation
into the safety of Products, the Department requested a detailed narrative from each
Permittee about its manufacturing process. Id. The information provided by
Permittees was then used by the Department to evaluate whether Permittees had
complied with the MMA and any related regulations. Id.
The OOR concluded that records responsive to Paragraphs 2 and 3 of the
Request were not exempt under Section 708(b)(17), as those records preexisted the
Department’s investigation, which was initiated by Podolak’s November 16, 2021
email. Id. at 17. Accordingly, the OOR directed that the Department provide records
responsive to Paragraphs 2 and 3 of the Request within 30 days or provide a
statement indicating that no such records existed. Id. The OOR found that records
responsive to Paragraphs 4-7 of the Request related to the Department’s non-
criminal investigation, rendering those records exempt from disclosure under
Section 708(b)(17) of the RTKL. Id. at 17.
The Department filed a petition for reconsideration, reiterating its argument
that Paragraph 3 of the Request was insufficiently specific. R.R. at 88a. In seeking
records that “did not support” the Department’s decision requiring Permittees to
submit Products for approval, Paragraph 3 of the Request “encompasse[d] virtually
every type of record Department-wide,” including any document that did not support
the relevant decision. Id. at 89a (emphasis in original). Moreover, the Department
contended that a review of the responsive records would require that the Department
retroactively determine whether a record did or did not support the OMM’s decision.
6
Id. at 90a. The Department also disagreed with the OOR’s conclusion that records
responsive to Paragraphs 2 and 3 of the Request were not exempt under Section
708(b)(17) of the RTKL simply because they predated Podolak’s November 16,
2021 email. Id. at 95a. The Department asserted that such records directly related
to the “genesis of [its] non-criminal investigation” and the need for further
investigation. Id. at 96a-97a.
While the OOR once more rejected the Department’s claim that Paragraph 3
of the Request was insufficiently specific, the OOR granted reconsideration as to the
exemption status of records responsive to Paragraphs 2 and 3 of the Request. Id. at
99a. After reviewing the evidence, the OOR concluded that the Department met its
burden of proving, by a preponderance of the evidence, that Paragraphs 2 and 3
sought records relating to a non-criminal investigation, as those records “initiated
the fact-finding component of the [Department’s] investigation[,]” and were
“created exclusively for . . . use in the Department’s non-criminal investigatory role”
under the MMA. C.R., Ex. 17 at 16, 18. Therefore, the OOR denied Requesters’
appeal entirely, and the Department was not required to take any further action. Id.
at 1. This appeal followed.6
II. Issues
On appeal, Requesters argue that the OOR erred in concluding that the records
responsive to Paragraphs 2 and 3 of the Request related to the Department’s non-
criminal investigation. Alternatively, if the records relate to a non-criminal
6
This Court’s standard of review of a final determination by the OOR is de novo and our
scope of review is plenary. Wishnefsky v. Pa. Dep’t of Corr., 144 A.3d 290, 294 n.7 (Pa. Cmwlth.
2016).
7
investigation, Requesters argue that the exemption in Section 708(b)(17) no longer
applied once the Department rescinded its approval of the Products at issue.
III. Discussion
Under the RTKL, records in possession of a Commonwealth agency are
presumed to be public unless they are exempt under Section 708 of the RKTL,7
protected by a privilege, or exempt under any other Federal or State law or regulation
or judicial order or decree.8 Records relating to an agency’s non-criminal
investigation are exempt from disclosure under Section 708(b)(17) of the RTKL.
Such records relevantly include investigative materials, notes, and correspondence,
as well as records that, if disclosed, would
[r]eveal the institution, progress[,] or result of an agency
investigation, except the imposition of a fine or civil
penalty, the suspension, modification[,] or revocation of a
license, permit, registration, certification[,] or similar
authorization issued by an agency[,] or an executed
settlement agreement unless the agreement is determined
to be confidential by a court.
65 P.S. § 67.708(b)(17). This Court has construed the word “investigation” to mean
“a systematic or searching inquiry, a detailed examination, or an official probe.”
Dep’t of Health v. Off. of Open Recs., 4 A.3d 803, 810-11 (Pa. Cmwlth. 2010). The
inquiry, examination, or probe must be conducted as part of the agency’s official
duties. Id. at 814. Application of the non-criminal investigation exemption in
7
65 P.S. § 67.708.
8
Section 305 of the RTKL, 65 P.S. § 67.305.
8
Section 708(b)(17) does not require a prerequisite, such as the filing of a complaint
or other “triggering event[.]” Id. at 812.
The agency possessing the records bears the burden of proving by a
preponderance of the evidence that an exception to the presumption applies.9 A
preponderance of the evidence is proof that the existence of a contested fact is more
probable than its nonexistence. Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435,
438-39 (Pa. Cmwlth. 2011). Relevant and credible testimonial affidavits may
provide sufficient evidence to support the application of a claimed exemption;
however, such affidavits must be detailed, nonconclusory, and submitted in good
faith. McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014)
(internal citations omitted). Generic determinations or conclusory statements
contained within an affidavit “are not sufficient to justify the exemption of public
records.” Off. of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013)
(internal citations omitted).
Instantly, in finding that records responsive to Paragraphs 2 and 3 of the
Request were exempt under Section 708(b)(17) of the RTKL, the OOR relied on
Podolak’s supplemental affidavit, which attested that the Department initiated “the
fact-finding component” of its non-criminal investigation with Podolak’s November
16, 2021 email. R.R. at 80a. These records, according to Podolak’s February 4,
2022 affidavit, were “gathered, reviewed, analyzed[,] and maintained by the
Department as part of” its non-criminal investigation into Permittees’ compliance
with the MMA. Id. at 66a. As a result, the OOR found that the non-criminal
investigation exemption applied.
9
Section 708(a) of the RTKL, 65 P.S. § 67.708(a).
9
The OOR also relied on Port Authority of Allegheny County v. Towne, 174
A.3d 1167, 1171 (Pa. Cmwlth. 2017), in which this Court held that records created
prior to the initiation of an investigation and only accessed “when necessary can
constitute investigative records, especially when the agency asserts that their only
purpose is for use in investigations.” The records in Towne consisted of surveillance
videos taken from the camera of a bus that had been involved in a motor vehicle
accident. The OOR determined that the surveillance videos were not exempt under
Section 708(b)(17) of the RTKL, as they were created prior to the initiation of an
investigation into the cause of the accident. We reversed the OOR, as the evidence
demonstrated that surveillance videos were only downloaded and reviewed
following an incident, claim, or accident that triggered an investigation. Absent an
event that triggered an investigation, surveillance videos were overwritten within 30
days. Therefore, the sole purpose of the surveillance videos was for use in
investigations.
The OOR likened the records sought in Paragraphs 2 and 3 of the Request to
the exempted surveillance videos in Towne. While the Department’s records existed
prior to “the fact-finding component of the [Department’s] investigation,” which
began on November 16, 2021, the OOR found that they were created to serve the
Department’s investigatory role under the MMA and formed the basis for its non-
criminal investigation.
Turning to the arguments raised by the parties, Requesters concede that
records predating an investigation may be exempt from disclosure under Section
708(b)(17) of the RTKL. They argue, however, that evidence must be presented that
directly relates those records to a subsequent investigation, and Podolak’s affidavits
failed to demonstrate a relationship between the Department’s pre-investigative
10
records and its subsequent non-criminal investigation. Moreover, Requesters note
that Podolak’s affidavits only addressed records that supported the OMM’s
November 16, 2021 decision – they did not address records contravening that
decision. Therefore, Requesters maintain that the Department failed to meet its
burden of proving the records sought in Paragraphs 2 and 3 of the Request were
exempt under Section 708(b)(17) of the RTKL.
The Department does not dispute that the records sought in Paragraphs 2 and
3 of the Request predate Podolak’s November 16, 2021 email. The Department
maintains, however, that there is no evidence to suggest the Department’s non-
criminal investigation commenced on that date. In her February 4, 2022 affidavit,
Podolak indicated that, during the course of its investigation, the Department
generated internal records, including emails, correspondence, notes, and
memoranda, that were created and maintained for the purpose of conducting the non-
criminal investigation into the safety of medical marijuana products. These
“internally generated materials” were part of the Department’s non-criminal
investigation. R.R. at 65a. Moreover, Podolak explicitly stated in her February 23,
2022 affidavit that her November 16, 2021 email initiated the “fact-finding
component of” the Department’s non-criminal investigation, suggesting that the
overall investigation began prior to that date. R.R. at 80a. Even if the evidence
indicates that the Department’s formal investigation commenced on November 16,
2021, the Department asserts that records preexisting that date formed the basis for
the Department’s non-criminal investigation and the OOR correctly determined that
those records were exempt from disclosure under Section 708(b)(17) of the RTKL.
One duty of an appeals officer under the RTKL is to develop an adequate
factual record on appeal. Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1120 (Pa.
11
Cmwlth. 2015). The OOR has the authority to request the production of an
exemption log and to conduct an in camera review of documents where an
exemption has been asserted. UnitedHealthcare of Pa., Inc. v. Pa. Dep’t of Hum.
Servs., 187 A.3d 1046, 1060 (Pa. Cmwlth. 2018). In camera review may enable the
OOR in rendering an informed and reasoned decision that is based upon a sufficient
factual predicate and in developing an adequate record for judicial review. Off. of
Open Recs. v. Center Twp., 95 A.3d 354, 370 (Pa. Cmwlth. 2014). A log or in
camera review may be unnecessary where the agency sufficiently explains the basis
for its nondisclosure of records in an affidavit. UnitedHealthcare of Pa., 187 A.3d
at 1060.
In Scolforo, this Court reviewed the sufficiency of an affidavit submitted by
the Governor’s Office in support of its decision to redact information contained in
the Governor’s calendars, such as the subject matter of internal meetings. The
Governor’s Office characterized this information as “predecisional deliberations”
that were exempt from disclosure under Section 708(b)(10)(i) of the RTKL.10 The
OOR disagreed and granted the requester access, without redactions, after
concluding that, as a matter of law, such information was not protected from
disclosure under Section 708(b)(10) of the RTKL. While this Court rejected the
OOR’s holding that calendar entries could never constitute predecisional
deliberations, we nevertheless affirmed the OOR after concluding the affidavit
submitted by the Governor’s Office was insufficient to support the exemption. The
affidavit justified the redactions as reflecting “internal deliberations that preceded
decisions related to subjects including the transition into the new administration,
personnel, budgetary and policy decisions, related courses of actions[,] and
10
65 P.S. § 67.708(b)(10)(i).
12
implementation of changes in the direction of the administration.” Scolforo, 65 A.3d
at 1104. The affidavit provided no details, however, as to how the redacted calendar
entries reflected any internal deliberations on those subjects. Instead, it merely
included “a list of subjects to which internal deliberations may have related” and
“track[ed] the language of the exception it presuppose[d.]” Id.
Instantly, we must review Podolak’s affidavits to determine whether they
support nondisclosure of the records sought in Paragraphs 2 and 3 of the Request.
Podolak’s February 4, 2022 affidavit relevantly attests to the following:
5. All of the withheld records sought in Paragraph’s 2 and
4 through 7 of [the Request] relate to [the Department’s
non-criminal investigation] into the safety of medical
marijuana products. More specifically, the withheld
records relate to the Department’s investigation(s) into the
safety of additives to vaporized medical marijuana
products by [Permittees].
....
7. During the course of the investigation(s)[,] the
Department also generated internal records based on
information uncovered during the course of the
investigation, including but not limited to emails,
correspondence, notes, and memoranda, that were created
and maintained for the purpose of conducting the
investigation(s). The Department’s review of records
received by third parties and review of internally
generated materials is part of the Department’s non-
criminal investigation.
R.R. at 65a.
Based on the above statements, the Department withheld records, regardless
of when they were created, because they either related to an investigation or were
“created and maintained” for the purpose of conducting the investigation. Records
existing prior to November 16, 2021, cannot be said to have been “created and
13
maintained” for the purpose of conducting a then-nonexistent investigation. Under
Towne, such records could be considered noncriminal investigative records if
“accessed only when necessary[,]” particularly if the “only purpose” of the records
was for use in the Department’s investigation. Towne, 174 A.3d at 1171. Although
the OOR concluded that the records sought in Paragraphs 2 and 3 of the Request
were “created exclusively for . . . use in the Department’s noncriminal investigatory
role” under the MMA, Podolak’s February 4, 2022 affidavit notably contains no
language to support that conclusion. C.R., Ex. 17 at 20.
As for the February 23, 2022 affidavit, with the exception of a conclusory
statement that “records withheld in connection with [Requesters’] appeal relate to a
single non-criminal investigation[,]” Podolak’s attestations only concern records
received or generated after November 16, 2021. R.R. at 80a.
The Department’s affidavits appear to suffer from the same lack of detail as
the one rejected by this Court in Scolforo. The conclusory statement in the February
23, 2022 affidavit provides no detail whatsoever and is, therefore, insufficient to
justify nondisclosure of records responsive to Paragraphs 2 and 3 of the Request.
The February 4, 2022 affidavit recites a laundry list of documents generated by the
Department in the course of its investigation and declares that those records relate
to the Department’s non-criminal investigation. Accordingly, it, too, appears to be
insufficient to support the exemption under Section 708(b)(17) of the RTKL,
particularly in regard to Paragraph 3 of the Request, which the February 4, 2022
affidavit fails to even mention.
Given the insufficiency of Podolak’s affidavits, we conclude that a remand to
the OOR is appropriate for the purpose of conducting an in camera review of records
responsive to Paragraphs 2 and 3 of the Request and determining the exemption
14
status of each record. Accordingly, while we affirm the OOR’s Final Determination
with respect to Paragraphs 1 and 4-7 of the Request, we vacate the OOR’s Final
Determination to the extent it concluded records responsive to Paragraphs 2 and 3
of the Request were exempt from disclosure under Section 708(b)(17) of the
RTKL.11
__________________________________
ELLEN CEISLER, Judge
Judge Covey did not participate in the decision of this case.
11
We need not address Requesters’ second argument, given our disposition of the first. It
should be noted, however, that Requesters’ argument relies on a misconstruction of Section
708(b)(17)(vi)(A) of the RTKL, which creates an exception to the general rule that an agency’s
non-criminal investigative records are protected from disclosure. Section 708(b)(17)(vi)(A)
provides that agency records are exempt if they would reveal the institution, progress, or result of
an agency investigation, “except the . . . revocation of a license, permit, registration, certification[,]
or similar authorization issued by an agency . . . .” 65 P.S. § 67.708(b)(17)(vi)(A). Under the
plain language of the statute, the Department’s decision to revoke its approval of certain vaporized
medical marijuana products may be disclosed. It does not, however, mandate the release of the
non-criminal investigation records upon which the Department’s decision was based.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Judith Cassel and The Law Office of :
Hawke McKeon & Sniscak, LLP, :
Petitioners :
:
v. : No. 491 C.D. 2022
:
Department of Health (Office of :
Open Records), :
Respondent :
ORDER
AND NOW, this 10th day of January, 2023, the April 21, 2022 Final
Determination Upon Reconsideration (Final Determination) issued by the Office of
Open Records (OOR) is vacated to the extent it determined that records sought by
Judith Cassel and The Law Office of Hawke McKeon & Sniscak, LLP (collectively,
Petitioners), in Paragraphs 2 and 3 of Petitioners’ request for records under the
Right-to-Know Law (Request)1 were related to a non-criminal investigation by the
Department of Health (Department) and, therefore, exempt from disclosure. This
matter is remanded to the OOR for purposes of performing an in camera review of
records responsive to Paragraphs 2 and 3 of the Request and determining the
exemption status of each record. The OOR’s Final Determination is affirmed in all
other respects.
Jurisdiction is relinquished.
__________________________________
ELLEN CEISLER, Judge
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.