FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No.: AP 2020-0981
:
WEST EASTON BOROUGH, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to West Easton Borough

(“Borough”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking

records relating to the improper use of Borough funds and missing computers. The Borough

partially denied the Request, asserting that certain information relates to criminal and noncriminal

investigations. 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

Borough is required to take further action as directed.

FACTUAL BACKGROUND

On May 4, 2020, the Request was filed, seeking:

[E]lectronic copies of all documents, emails, videos, notes, papers,

communications, social media posts and messages, instant or group, in the
possession of West Easton Borough that related to and concern missing computers,

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 improper use of Borough funds, erroneous garbage bills from January 2016 through
December 2016 which relate to the enclosed document.1

On June 10, 2020, after extending its time to respond by thirty days, see 65 P.S. § 67.902(b)(2),

the Borough partially denied the Request, asserting that certain responsive records are exempt from

public access because they relate to criminal and noncriminal investigations, 65 P.S. §§

67.708(b)(16)-(17).

On June 15, 2020, the Requester appealed to the OOR, challenging the partial denial and

stating grounds for disclosure.2 The Requester argues, in part, that the records provided are

incomplete. The OOR invited both parties to supplement the record and directed the Borough to

notify any third parties of their ability to participate in this appeal. See 65 P.S. § 67.1101(c).

On July 8, 2020, the Borough submitted a position statement, reiterating its grounds for

denial and further stating that portions of the responsive records are protected by the attorney-

client privilege. In support of its position, the Borough submitted the attestation of Joan Heebner

(“Ms. Heebner”), the Borough’s Open Records Officer. On the same day, the Requester made a

submission, asserting that “[t]he records are not exempt because the investigation is clearly long

since over” and that the Borough waived the attorney-client privilege.

On August 27 and September 4, 2020, in response to a request for additional evidence from

the OOR, the Borough submitted the attestations of Ms. Heebner and Steven Goudsouzian, Esq.

(“Attorney Goudsouzian”), the Borough’s Solicitor. On September 4, 2020, the Requester

submitted a response to the Borough’s submissions, asking that the September 4, 2020 attestation

“be rejected in its entirety as conclusory and false.”

1
The enclosed document was a letter, dated August 23, 2016, from former Northampton County District Attorney
John Morganelli to the Borough’s Solicitor.
2
During the course of the appeal, the Requester provided the OOR with additional time to issue this Final
Determination. 65 P.S. § 67.1101(b)(1).

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 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), aff’d 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; however, the decision to hold a hearing is discretionary and

non-appealable. Id.; Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct.

2011). Here, the parties did not request a hearing, but the Requester asked the OOR to conduct an

in camera review of the withheld records; however, because the OOR has the requisite information

and evidence before it to properly adjudicate the matter, the request for in camera review is denied.

The Borough is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302. Records in the 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.

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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 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)(1). Similarly, the burden of proof in claiming a privilege is on the

party asserting that privilege. Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011).

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

Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Pa. Dep’t of Transp. v. Agric.

Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). Likewise, “[t]he

burden of proving a record does not exist ... is placed on the agency responding to the right-to-

know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011).

1. The Borough has demonstrated that one responsive record is protected by the
attorney-client privilege

The Borough asserts that it withheld one responsive record because it is protected under

the attorney-client privilege. The RTKL defines “privilege” as “[t]he attorney-work product

doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege

or other privilege recognized by a court interpreting the laws of this Commonwealth.” 65 P.S. §

67.102. In order for the attorney-client privilege to apply, an agency must demonstrate that: 1) the

asserted holder of the privilege is or sought to become a client; 2) the person to whom the

communication was made is a member of the bar of a court, or his subordinate; 3) the

communication relates to a fact of which the attorney was informed by his client, without the

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presence of strangers, for the purpose of securing either an opinion of law, legal services or

assistance in a legal matter, and not for the purpose of committing a crime or tort; and 4) the

privilege has been claimed and is not waived by the client. See Nationwide Mut. Ins. Co. v.

Fleming, 924 A.2d 1259, 1263-64 (Pa. Super. Ct. 2007). The attorney-client privilege protects

communications to and from a client. See Gillard v. AIG Ins. Co., 15 A.3d 44, 59 n.16 (Pa. 2011);

see, e.g., Romig v. Macungie Borough, OOR Dkt. AP 2010-0674, 2010 PA O.O.R.D. LEXIS 573;

Staley v. Pittsburgh Water & Sewer Auth., OOR Dkt. AP 2010-0544, 2010 PA O.O.R.D. LEXIS

466; Fikry v. Retirement Bd. of Allegheny Twp., OOR Dkt. AP 2009-1149, 2010 PA O.O.R.D.

LEXIS 19. The Commonwealth Court has confirmed that, after an agency establishes the privilege

was properly invoked under the first three prongs outlined above, the party challenging invocation

of the privilege must prove waiver under the fourth prong. Bagwell v. Pa. Dep’t of Educ., 103

A.3d 409, 420 (Pa. Commw. Ct. 2014).

Here, the Borough states that the one withheld record is correspondence to Borough

Council from the Council’s Solicitor, whereby the Borough Council “sought and received advice

from its counsel with regard to matters involving Ms. Gross.” The Borough further contends that

the privilege has not been waived. By way of background, the Borough explains that there were

allegations of “wrongful conduct” by Ms. Gross, who is the former Borough Council President

and one-time acting Borough Manager. In support of its argument that the letter is protected from

disclosure under the attorney-client privilege, the Borough relies on the attestations of Ms. Heebner

and Attorney Goudsouzian, who both attest, in relevant part, as follows:

5. Th[e] record is in the nature of a one-page letter, dated March 11, 2016 from
the Borough Solicitor … to Borough Council with regard to [the] subject of
Kelly Gross’ role as Emergency Management Coordinator, one of the issues
addressed in then-District Attorney John Morganelli’s letter of August 23,
2016.

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 Under the RTKL, an attestation is competent evidence to sustain an agency’s burden of

proof. 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 absence of any

competent evidence that the Borough acted in bad faith, “the averments in [the attestation] should

be accepted as true.” McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Commw.

Ct. 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw. Ct.

2013). Based on the evidence presented, the Borough has demonstrated that the attorney-client

privilege was properly invoked for the responsive letter, as the letter related to the Solicitor’s legal

advice and opinion regarding the alleged misconduct of a former Borough official.

The Requester argues that the privilege has been waived because the Borough “chose to

furnish information in the public domain to the District Attorney….” However, the Requester has

not presented any evidence indicating that the Borough shared the responsive letter with any

outside parties. Accordingly, the Borough has demonstrated that the withheld letter from the

Solicitor to Borough Council is protected by the attorney-client privilege.3 See 65 P.S. § 67.102.

2. The Borough has not demonstrated that certain records relate to a criminal
investigation

The Borough asserts that it withheld one responsive record because it relates to a criminal

investigation. Section 708(b)(16) of the RTKL exempts from disclosure “[a] record of an agency

relating to or resulting in a criminal investigation, including … [c]omplaints of potential criminal

conduct … [and] [i]nvestigative materials, notes, correspondence, videos and reports.” 65 P.S. §§

67.708(b)(16)(i)-(ii).

3
Because the responsive letter is exempt from disclosure under the attorney-client privilege, the OOR need not reach
the Borough’s alternative grounds for denying access. See Jamison v. Norristown Bor. Police Dept., OOR Dkt. AP
2011-1233, 2011 PA O.O.R.D. LEXIS 927.

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 While jurisdiction of appeals of local agency criminal investigative records normally rests

with the district attorney, 65 P.S. § 67.503(d)(2), a local agency claiming records are exempt under

Section 708(b)(16) does not automatically divest the OOR of jurisdiction over such appeals.

Section 503(d) creates a two-step analysis for determining when cases should be heard by the OOR

and when they should be heard by the appeals officer appointed by a District Attorney. First,

jurisdiction is properly transferred from the OOR to the District Attorney’s Office when an appeal,

on its face, involves records that relate to a criminal investigation (e.g., search warrants, witness

statements, etc.). See Porter v. Allegheny County Sheriff’s Office, OOR Dkt. AP 2014-1910, 2014

PA O.O.R.D. LEXIS 1444 (transferring appeal to District Attorney’s Office where the request for

a search warrant was, on its face, related to a criminal investigation). Second, when it is unclear

whether the requested records relate to a criminal investigation, the local agency must provide

some evidence showing how the records relate to a specific criminal investigation. Although a

low threshold for transferring a case is needed, an agency must provide more than a conclusory

affidavit that merely repeats the language of Sections 503(d) and 708(b)(16). See Bush v.

Westtown-East Goshen Police Dep’t, OOR Dkt. AP 2016-1869, 2016 PA O.O.R.D. LEXIS 1708

(Agency submitted affidavit demonstrating how the requested records related to a specific criminal

investigation); Burgess v. Willistown Twp. Police Dep’t, OOR Dkt. AP 2013-1511, 2013 PA

O.O.R.D. LEXIS 868 (holding that where a local agency made a preliminary showing that records

relate to a criminal investigation, the OOR lacked jurisdiction to consider the merits of the appeal).

In support of the Borough’s argument, Ms. Heebner and Attorney Goudsouzian both attest

that the withheld record is “a five-page letter, dated May 19, 2016 from [Attorney] Goudsouzian

to then-District Attorney John Morganelli, addressed to the Borough’s claims against Kelly Gross,

their evidence of the same, and a list of potential witnesses.” Thus, the Borough contends that the

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letter is exempt because it is “therefore in the nature of a complaint of potential criminal conduct

submitted to … the Northampton County Office of the District Attorney.” However, “the OOR

will not deprive itself of jurisdiction over appeals … where an entity other than the agency from

which records are requested has conducted the investigation.” Wise v. Borough of Steelton, OOR

Dkt. AP 2015-0063, 2015 PA O.O.R.D. LEXIS 204. The criminal investigative exemption has

“only been extended to protect the record of an agency carrying out an investigation.” Hayes v.

Pa. Dep’t of Pub. Welf., OOR Dkt. AP 2012-0415, 2012 PA O.O.R.D. LEXIS 530; see also Univ.

of Pittsburgh Medical Center v. City of Pittsburgh, OOR Dkt. AP 2014-0089, 2014 PA O.O.R.D.

LEXIS 186 (holding that records relating to a criminal investigation conducted by the Federal

Bureau of Investigation were not exempt from public access under Section 708(b)(16)). Similar

to the case cited above, the criminal investigation in the instant matter was conducted by an entity

other than the Borough. Accordingly, Section 708(b)(16) of the RTKL does not apply to the

records at issue, and the OOR retains jurisdiction over this appeal. See Konias v. Allegheny

County, OOR Dkt. AP 2018-0783, 2018 PA O.O.R.D. LEXIS 840.

3. The Borough had not demonstrated that certain records relate to a noncriminal
investigation

The Borough also argues that the letter sent from its Solicitor to the Northampton County

District Attorney’s Office is exempt from public access because it relates to a noncriminal

investigation. Section 708(b)(17) of the RTKL exempts from disclosure “[a] record of an agency

relating to a noncriminal investigation, including … [i]nvestigative materials, notes,

correspondence and reports.” 65 P.S. § 67.708(b)(17)(ii). To successfully assert the noncriminal

investigative records exemption, the agency must demonstrate that “a systematic or searching

inquiry, a detailed examination, or an official probe” was conducted regarding a noncriminal

matter. Pa. Dep’t of Health v. Office of Open Records, 4 A.3d 803, 810-11 (Pa. Commw. Ct.

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2010). Further, the inquiry, examination or probe must be “conducted as part of an agency’s

official duties.” Id. at 814. An official probe only applies to noncriminal investigations conducted

by agencies acting within their legislatively granted fact-finding and investigative powers.

Johnson v. Pa. Convention Center Auth., 49 A.3d 920 (Pa. Commw. Ct. 2012); see also Pa. Dep’t

of Pub. Welf. v. Chawaga, 91 A.3d 257 (Pa. Commw. Ct. 2014).

In this instance, the Borough acknowledges that the local District Attorney’s Office

conducted the investigation. Specifically, both Ms. Heebner and Attorney Goudsouzian attest that

“[r]ather than conduct the investigation itself, the Borough made a determination to forward the

information to the Office of the District Attorney to review and determine what steps, in any,

should be taken.” The Borough further acknowledges that “the District Attorney’s Office

conducted the investigation pursuant to their official duties, making a systematic or searching

inquiry, examination, or official probe.”

In Hayes v. Pa. Department of Public Welfare, the OOR found that Section 708(b)(17)

only protects records of the agency conducting the investigation. OOR Dkt. AP 2012-0415, 2012

PA O.O.R.D. LEXIS 530; see also Bagwell v. Pa. Office of the Governor, OOR Dkt. AP 2013-

1551, 2013 PA O.O.R.D. LEXIS 1227 (finding records possessed by the agency that relate to an

investigation conducted by a law firm on behalf of a state-related institution are not exempt under

Section 708(b)(17)); Silver v. City of Pittsburgh, OOR Dkt. AP 2013-1395, 2013 PA O.O.R.D.

LEXIS 886.

Here, the Borough acknowledges that it did not conduct the investigation; rather, the local

District Attorney’s Office conducted the investigation. While the Borough’s letter may have been

used as part of the investigation by the District Attorney’s Office, “the presence of an investigation

conducted by another … agency does not transform records existing independently of the

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investigation into non-public records, particularly where the records exist in the possession of an

agency that did not conduct the investigation.” Carter v. Pa. Dep’t of Human Servs., OOR Dkt.

AP 2017-2167, 2018 PA O.O.R.D. LEXIS 1246; see, e.g., Hockeimer v. City of Harrisburg, OOR

Dkt. AP 2015-1853, 2015 PA O.O.R.D. LEXIS 1655, affirmed by, No. 2015-CV-9289-MP

(Dauph. Com. Pl. Mar. 11, 2016). Therefore, the Borough has not met its burden of proving that

the withheld letter is exempt from disclosure under Section 708(b)(17) of the RTKL. See 65 P.S.

§ 67.708(a)(1).

4. The Borough has demonstrated that no other responsive records exist in the
Borough’s possession, custody or control

The Requester asserts that the records provided are “incomplete.” The Borough, in turn,

contends that other than what has been provided to the Requester and the two withheld letters, no

other responsive records exist in the Borough’s possession, custody or control. In support of the

Borough’s assertion, Ms. Heebner attests that she is “familiar with the records of the Borough”

and that she emailed the Requester “all responsive documents with the exception of a video that

[the Borough] offered to make available on a flash drive, and the two documents exempt from

disclosure under the RTKL.” Ms. Heebner further attests that “[a]ll documents and any other items

not exempt from disclosure have been provided to the Requester in their entirety.” The Requester

did not submit evidence challenging Ms. Heebner’s attestation.

As stated above, an attestation is competent evidence to sustain an agency’s burden of

proof. See Sherry, 20 A.3d at 520-21; Moore, 992 A.2d at 909. Accordingly, based on the

evidence submitted, the Borough has demonstrated that a search was conducted and that no

additional responsive records exist in the Borough’s possession, custody or control. Hodges, 29

A.3d at 1192.

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 CONCLUSION

For the foregoing reasons, the Requester’s appeal is granted in part and denied in part,

and the Borough is required to provide the Requester with the responsive letter, dated May 19,

2016, within thirty days. 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 Northampton 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. However, as the quasi-judicial tribunal adjudicating this matter, the OOR is

not a proper party to any appeal and should not be named as a party.4 This Final Determination

shall be placed on the OOR website at: https://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: October 14, 2020

/s/ Magdalene C. Zeppos

____________________________
MAGDALENE C. ZEPPOS, ESQ.
APPEALS OFFICER

Sent to: Tricia Mezzacappa (via email only);

Stephanie Steward, Esq. (via email only); and
Joan Heebner, AORO (via email only)

4
See Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

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