Sample data collected by the Department of Environmental Protection (DEP) in a radiation exposure study is exempt from disclosure under the Right-to-Know Law as a record of a non-criminal investigation, the Commonwealth Court held in Department of Environmental Protection v. Delaware Riverkeeper Network, __ A.3d __ (No. 1373 CD 2014, filed April 10, 2015). This case addresses an issue the courts have grappled with under the prior and current versions of the Right-to-Know Law: what constitutes a non-criminal investigation under Section 708(b)(17) of the Law, 65 P.S. §67.708(b)(17)?
By way of background, in 2013, DEP’s Bureau of Radiation Protection began a comprehensive Technologically-Enhanced Naturally-Occurring Radioactive Material Study to evaluate potential radiation exposure to workers, the public, and the environment resulting from materials generated by oil and gas exploration and production in Pennsylvania. The Delaware Riverkeepers Network (Requester) requested access to DEP’s sample data, which it argued were “purely factual, were not deliberative and merely reflect information-gathering for study purposes rather than for conducting a non-criminal investigation.” The Office of Open Records concluded that DEP’s “study” is distinct from an “investigation” and ordered DEP to produce the responsive records.
On review, the Commonwealth Court reversed. Judge Covey, writing for the unanimous panel, surveyed Pennsylvania’s jurisprudence on the non-criminal investigation exception, noting the courts’ emphasis on the nature of the particular documents involved and whether they were created during the course of an investigation. In this case, DEP collected the sampling data at issue to comply with a mandate under the Radiation Protection Act that DEP monitor, control and regulate radiation sources on an ongoing basis. As such, the Court held that the collection of the data was the result of “a systematic or searching inquiry, a detailed examination, or an official probe” in the course of DEP’s official duties and, thus, related to a non-criminal investigation. Therefore, DEP proved by a preponderance of evidence that the sample data was exempt from disclosure under Section 708(b)(17) of the Right-to-Know Law.