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FINAL DETERMINATION

IN THE MATTER OF:

RICHARD POPLAWSKI,
Complainant

v.

PENNSYLVANIA DEPARTMENT OF
CORRECTIONS,
Respondent


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Docket No.: AP 2014-0207

INTRODUCTION
Richard Poplawski (Requester), an inmate at the State Correctional Institution at
Graterford, submitted a request (Request) to the Pennsylvania Department of Corrections
(Department) pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq., (RTKL),
seeking records of the Departments procedures and protocols for carrying out capital
punishment. The Department denied the Request, arguing, among other reasons, that disclosure
of the requested records would jeopardize public safety. 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 denied in part and the Department is required to take further action to take
further action as directed.


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FACTUAL BACKGROUND
On January 21, 2014, the Request was filed, seeking the Departments procedures and
protocols for conducting executions, including types of drugs/chemicals, current inventory,
expiration dates, and suppliers/providers. On January 24, 2014, the Department denied the
Request, arguing the requested records are exempt from disclosure under the RTKLs security
and investigative exemptions. See 65 P.S. 67.708(b)(1)-(2); 65 P.S. 67.708(b)(16)-(17).
On February 10, 2014, the Requester appealed to the OOR, challenging the denial and
stating grounds for disclosure. The OOR invited both parties to supplement the record. On
February 21, 2014, the Department submitted position statement with the supporting affidavit of
Major Victor Mirarchi, Chief of Security. In his affidavit, Major Mirarchi attests that the sole
responsive record at issue in this appeal is the Capital Case Procedures Manual (Department
Policy 6.5.8). Major Mirarchi attests that this document is a staff procedures manual containing
confidential and security-sensitive procedures pertaining to institutional security and the capital
punishment process. Specifically, this manual gives direction to staff regarding security
measures for capital case inmates and the execution procedure, as well as the procurement
process for drugs necessary to carry out an execution. Major Mirarchi further notes that the
procurement process to obtain drugs to perform an execution has become increasingly difficult
with suppliers reluctant to supply these drugs for fear of that their businesses and personnel will
be the subject of reprisals. As a result, Major Mirarchi notes, the sources of drugs necessary to
carry out the execution process are kept highly confidential and known only to Department staff
with a need to know. Pertinently, Major Mirarchi attests that knowledge of the information
contained within the Capital Case Procedures Manual would enable inmates to cause
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disruptions, risking the lives of staff, other inmates, vendors, suppliers and the general public and
others who might be at or near an institution.
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 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 resolve an appeal. The decision to hold a hearing is discretionary and non-
appealable. Id.; Giurintano v. Dept 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 Department is a Commonwealth agency subject to the RTKL that is required to
disclose public records. 65 P.S. 67.301. Records in possession of a Commonwealth 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
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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 Request seeks the Departments procedures and protocols for carrying out capital
punishment. The Department has identified the Capital Case Procedures Manual (Department
Policy 6.5.8) as the sole responsive record, and argues that disclosure of this document would
jeopardize or threaten public safety or preparedness or public protection activity. See 65 P.S.
67.708(b)(2). The RTKL exempts from public access for [a] record maintained by an agency
in connection with the ... law enforcement or other public safety activity that if disclosed would
be reasonably likely to jeopardize or threaten public safety ... or public protection activity... See
65 P.S. 67.708(b)(2). Based on the underlying purpose of the RTKL, however, exemptions
from disclosure must be narrowly construed. See Bowling, 990 A.2d at 824. In order for the
public safety exemption to apply, two elements must be satisfied: 1) the record must be
maintained by the agency in connection with its law enforcement or other public safety activity;
and 2) the release of the record must be reasonably likely to threaten public safety. See Walker
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v. Macungie, OOR Dkt. AP 2009-0509, 2009 PA O.O.R.D. LEXIS 229; Laigle v. City of Wilkes-
Barre, OOR Dkt. AP 2010-0267, 2010 PA O.O.R.D. LEXIS 327.
In his affidavit, Major Mirarchi attests that the requested records relates to the law
enforcement activity of carrying out the execution process, and describes the risks to institutional
security and public safety if the contents of the Capital Case Procedures Manual are made public,
and inmates gain greater knowledge of the security protocols associated with the execution
process and the procurement process for acquiring drugs necessary to carry out the execution
process. Under the RTKL, an affidavit may serve as sufficient evidentiary support. See Sherry
v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of
Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010).
In the context of a correctional institution setting a correctional facility need not
demonstrate specific prior examples of physical harm to personal security to meet the agency's
burden of proof under 65 P.S. 708(b)(1)(ii). See, e.g., Bernstein v. Dept of Corrections, OOR
Dkt. AP 2011-1603, 2011 PA O.O.R.D LEXIS 1295. Indeed in a prison setting an agency need
not demonstrate absolute certainty that the release of information will threaten public safety;
rather, an agency need only demonstrate a reasonable likelihood of a threat to public safety.
Woods v. Office of Open Records, 998 A.2d 665, 670 (Pa. Commw. Ct. 2010). The OOR finds
credible the professional opinion of individuals assessing the risks of security and will not
substitute its judgment for that of those with far more familiarity with the issues in this matter
that directly involve public safety. See Knauss v. Unionville-Chadds Ford School District, OOR
Dkt. AP 2009-0332, 2009 PA O.O.R.D. LEXIS 238. Therefore, the Department has met its
burden of proof that disclosure of security procedures, such as correctional officer assignments
and inmate transfer procedures, contained within the Capital Case Procedures Manual
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(Department Policy 6.5.8) is exempt from disclosure pursuant to Section 708(b)(2) of the RTKL.
Such information could clearly result in a substantial and demonstrable risk of physical harm or
risk to the personal security of the individuals required to follow these policies. Likewise, it is
reasonable that similar risks exist with the release of the names of any suppliers of drugs used in
the execution process.
However, the Department has failed to demonstrate how the disclosure of information
regarding the procurement, inventory, storage and use of drugs used in the execution process
would threaten public safety. Information unrelated to security such as the types of drugs used,
the method in which the Department procures these drugs, the expiration dates, and other
information regarding the use of drugs in the execution process cannot be said to constitute a
threat to the public. Accordingly, the Department is required disclosed information regarding
drugs used in the execution process.
CONCLUSION
For the foregoing reasons, the appeal is granted in part and denied in part and the
Department is required to take further action as directed. Within thirty (30) days of the mailing
date of this Final Determination, any party may appeal to the Commonwealth Court. 65 P.S.
67.1301(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.








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FINAL DETERMINATION ISSUED AND MAILED: March 12, 2014

APPEALS OFFICER
CHARLES REES BROWN, ESQ.


Sent to: Richard Poplawski, KB-7354;
Valerie Janosik-Nehilla, Esq. (via e-mail only);
Andrew Filkosky (via e-mail only)