IN THE COMMONWEALTH COURT OF PENNSYLVANIA

JEAN CROCCO, ) Petitioner, ) ) v. ) ) PENNSYLVANIA DEPARTMENT ) OF HEALTH, ) Respondent, ) ) and ) DREXEL UNIVERSITY d/b/a DREXEL OB/GYN ) No. 1085 CD 2018 ASSOCIATES OF FEINSTEIN, DELAWARE ) COUNTY WOMEN’S CENTER, MAZZONI ) CENTER FAMILY AND COMMUNITY ) MEDICINE, PLANNED PARENTHOOD ) KEYSTONE, PLANNED PARENTHOOD ) SOUTHEASTERN PENNSYLVANIA, BERGER ) & BENJAMIN, ALLEGHENY REPRODUCTIVE ) HEALTH CENTER, ALLENTOWN WOMEN’S ) CENTER, PHILADELPHIA WOMEN’S CENTER, ) and PLANNED PARENTHOOD OF WESTERN ) PENNSYLVANIA, ) )

Intervenors. )

REPLY BRIEF OF JEAN CROCCO

Christopher G. Sweet, Esq. 1955 Cassel Rd. Quakertown, PA 18951

Dated: March 18, 2019

Thomas Brejcha, Esq. Thomas Olp, Esq. The Thomas More Society A National Public Interest Law Firm 19 S. LaSalle Street, Suite 603 Chicago, IL 60603

Attorneys for Petitioner, Jean Crocco

i

TABLE OF AUTHORITIES .......................................................................... ii SUMMARY OF ARGUMENT ....................................................................... 1

ARGUMENT ................................................................................................... 2

I. The DOH’s Policy Of Shielding from Public Access Names and License Numbers of Employees and Associates of Abortion Clinics Is An Unlawful Unpromulgated Regulation. ....................................... 2

II. DOH’s Redaction Decision Is Not Permitted by Either the Abortion Control Act or the Right To Know Law. ............................................. 5

A. The Requested Records are Not Exempt from Disclosure Under the Abortion Control Act. ....................................................................... 5

B. The DOH Has Not Met Its Burden of Proving That the Requested Records Are Exempt Under the RTKL. ........................................... 7

1. DOH Did Not Evaluate Risk As to “An Individual”, The Test Required By RTKL §708(b)(1)(ii). ............................................... 7

2. DOH May Not Evade the Requirement For Individualized Evaluation By Citing A “Large Group” Exception. ...................... 9

3. This Court Owes No Deference to the DOH’s Redaction Decision Because Abortion Clinics Are Not Analogous to Prisons. ........................................................................................10

4. The Evidence, Taken Individually And As a Whole, Fails to Satisfy DOH’s Burden of Proving That the Records are Exempt From Disclosure. .........................................................................13

i. The Evidence Fails to Connect Disclosure of a Name with a “Reasonably Likely” Substantial Risk to “An Individual” as Required by §708(b)(1)(ii). .....................................................13

ii. The Survey Reports, Which are Based on Hearsay, Lack the Trustworthiness Required to Be Relied On As Evidence. ......15

iii. There Is No Proof That Crocco or Her Employer Poses Any Risk to Any Individual Named in the Records. .....................18

iv. DOH’s Speculation About Use of Names by Third Parties is Insufficient to Satisfy its Burden of Proof. ............................21

v. Since Intervenors Have, in Almost All Cases, Voluntarily Placed Their Names In The Public Realm, Disclosure of Their Names or License Numbers Will Not Affect Their Risk. .......22

ii

III. Crocco Did Not Waive Her Argument That the Names of the 5% Owners, Officers and Board Members of Certain Intervenors Are Unconditionally Disclosable under the Health Care Facilities Act. ........................................................................................................24

IV. Crocco Did Not Waive Her Argument that State-Funded Facilities’ Applications are Public Records. ....................................................26

CONCLUSION ..............................................................................................27

CERTIFICATE OF WORD COUNT ...........................................................28

CERTIFICATE OF SERVICE ......................................................................29

TABLE OF AUTHORITIES

Cases

Abraham v. Sch. Dist. of Phila., 2012 PA O.O.R.D. LEXIS 47 *14 ...................9, 22 Buehl v. Pa. Dept. of Corrections, 955 A.2d 488 ............................................. 12, 15 Carey v. Pa. Dept. of Corrections, 61 A3d 367, 374 (2013) ...................................12 County Investigating Grand Jury XXIII, 2011 WL 711902 (2011) ........................17 Delaware County v. Schaefer, 45 A.3d 1149, 1158 (Pa. Commw. 2012) ................. 7 Dep’t. of Environmental Resources v. Rushton Mining Co., 139 Pa. Commw. 648,

656-57 (1991) ................................................................................................ 3, 5, 8 Dept. of Conservation and Natural Resources v. Office of Open Records 1 A.3d

929 (Commw. Ct. 2010) ......................................................................................17 Dept. of Labor and Industry v. Helzel, 90 A.3d, at 831-32 .....................................26 DOH v. Wallace McKelvey et al., 2018 Pa. Commw. Unpub. LEXIS 520, *14 .9, 22 Eastwood Nursing & Rehab. Ctr. v. Dep't of Pub. Welfare, 910 A.2d 134, 144

(Commw. Ct. 2006) ...........................................................................................3, 4 Glenn v. Md. Dep’t of Health & Mental Hygiene, 446 Md. 378, 132 A.3d 245

(2016) ...................................................................................................................21 Gross v. DOH, OOR Docket AP 2013-1595 ............................................ 2, 3, 18, 19 Hoy v. Angelone, 554 Pa. 134, 143 (Pa. S.Ct. 1998) ................................................. 6 In the Matter of Pennsylvanians for Union Reform, 2014 PA O.O.R.D. LEXIS 99,

*26 .......................................................................................................................... 7 In the Matter of Timothy Carroll, 2009 PA O.O.R.D. LEXIS 201, 8 ....................... 7 Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C.Cir. 2006) ...........................21 Lukes v. Dept. of Public Welfare, 976 A.2d 609, 625 (Commw. Ct. 2009) ............27 Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 730 (Pa. Commw. Ct. 2016)

..............................................................................................................................10

iii

N.H. Right to Life v. Dir. N.H. Charitable Trusts Unit ...........................................21 Northwestern Youth Servs. v. Commonwealth Dep't of Pub. Welfare, 1 A.3d 988,

994-996 (Commw. Ct. 2010) ................................................................................. 3 NOW, Inc. v. Scheidler, 750 F.3d 696, 697 (7th Cir. 2014) ....................................20 Office of the Governor v. Donahue, 98 A.3d 1223 (2014) ......................................27 Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 656 n.12 (Pa. Commw. Ct. 2016).”

(R. 301a) ...............................................................................................................27 Philadelphia Public School Notebook v. School Dist. of Philadelphia, 49 A.3d 445,

449 (Commw. 2012) ............................................................................................24 Pittsburgh Press Club, 579 F.2d 751, 758 (3d Cir. 1978) .......................................15 Purcell v. Governor’s Office of Admin., 35 A.3d 811, 818 (Pa Commw. Ct. 2011) . 9 Rosalie Gross v. Pa. Dept. of Health, OOR Docket AP 2013-1595 ................ 18, 19 State Employees’ Retirement System v. Fultz, 107 A.3d 860, 868 (Pa Commw. Ct.

2015) ................................................................................................................9, 12 Stein v. Office of Open Records, 2010 Pa. Commw. Unpub. LEXIS 313 . 10, 11, 12,

13 Statutes

1 Pa.C.S. § 1921(b) .................................................................................................... 6 35 P.S. § 448.806(e) .................................................................................................25 65 P.S. § 67.1102(a)(2) ............................................................................................17 65 P.S. § 67.306 .......................................................................................................25 Abortion Control Act, 18 Pa. C.S. §3214 ......................................................... 2, 5, 6 Health Care Facilities Act ("HCFA"), 35 P.S. § 448.807 ................................ passim Right to Know Law .......................................................................................... passim

1

Jean Crocco (“Crocco” or “Petitioner”), by undersigned counsel, replies to

the briefs of Respondent Pennsylvania Department of Health (“DOH”) and

Intervenors as follows:

SUMMARY OF ARGUMENT

The DOH seeks the Court’s imprimatur on its unpromulgated policy of

redacting names and license numbers of abortion clinic personnel from public

records requested under Pennsylvania’s Right to Know Law, 65 P.S. § § 67.101-

67.3104 (“RTKL”). The policy is aimed to protect a regulated industry at the

expense of the public’s access to important information about abortion services,

information that is readily accessible with respect to non-abortion medical

providers. The DOH cites insufficient legal grounds for its policy, and the Court

should reject it.

Since the DOH’s policy was never promulgated, the Court should reject it

for that reason alone. But even as a non-regulation “statement of policy” it fails.

Contrary to the DOH's position, the Pennsylvania Abortion Control Act does not

require the policy. RTKL exemption §708(b)(1)(ii) contradicts it, because it

requires just the individualized evaluation of risk that the DOH policy eschews.

When the RTKL exemption itself, rather than the policy, is applied, the DOH’s and

Intervenors’ evidence falls far short. The generalized reports of industry trade

2

group National Abortion Federation, and Feminist Majority Foundation, do not

identify any particularized risk causally connected to the release of names or

professional license numbers. The Intervenors’ affidavits are just as lacking.

Together they amount to no more than speculation about the risk of harm attendant

on disclosure. Finally, names of 5% owners of abortion facilities, and those

receiving public funds, are unconditionally discloseable.

For these reasons, the Court should order the release of the requested records

without redaction of names and professional license numbers. The Court should

not acquiesce to the DOH’s apparent collaboration with a regulated industry to

protect it at the expense of public access to important public health information.

ARGUMENT

I. The DOH’s Policy Of Shielding from Public Access Names and License Numbers of Employees and Associates of Abortion Clinics Is An Unlawful Unpromulgated Regulation.

In its OOR submission, DOH claimed that under Section 3214 of the

Abortion Control Act (“ACA”), 18 Pa. C.S. §3214, “the Department cannot and

will not release the names of medical personnel who are associated with and who

may be providing services at, an abortion facility.” R.41a-42a.1 The DOH asserts

that the OOR upheld its policy in Gross v. DOH, OOR Docket AP 2013-1595.

R.42a. DOH also stated that “it is Department policy not to release the names, 1 The OOR rejected the DOH’s argument that the ACA prohibited release of

the requested records. Final Determination, 6-7. The DOH and the Intervenors continue to argue before this Court that the ACA prohibits disclosure of the records. DOH Br., 16-17; Intervenors’ Br., 22-25.

3

provider numbers, phone numbers, or email addresses associated with abortion

facilities’ personnel.” R.44a.

DOH’s “policy” to redact names and license numbers of abortion providers

is a “binding norm” which should have been promulgated in accordance with the

notice and comment procedures of Pennsylvania’s administrative law. See Dep’t.

of Environmental Resources v. Rushton Mining Co., 139 Pa. Commw. 648, 656-57

(1991). Whether an agency policy is in fact a binding norm rests on three inquiries:

(1) the plain language of the enactment; (2) the manner in which the agency

implements it; and (3) whether it restricts the agency’s discretion.” Eastwood

Nursing & Rehab. Ctr. v. Dep't of Pub. Welfare, 910 A.2d 134, 144 (Commw. Ct.

2006); Northwestern Youth Servs. v. Commonwealth Dep't of Pub. Welfare, 1 A.3d

988, 994-996 (Commw. Ct. 2010).

As to the first inquiry, the plain language of the policy is restrictive,

directive and substantive. It directs DOH staff to withhold the names and other

data, associated with abortion facilities, it restricts them by offering no exceptions

to the rule, and it is substantive because it constrains the public’s right to access

important government information. DOH has determined that the ACA requires

this policy and currently gives assurances to abortion facilities that it will not

disclose the records they file. DOH has apparently followed this practice at least

since 2013, the year Gross v. DOH, AP 2013-1595, was decided. R.42a. DOH’s

4

policy thus establishes “a standard of conduct with the force of law, and a binding

norm.” Eastwood Nursing & Rehab. Ctr., 910 A.2d at 146.

As to the second inquiry, the agency did not announce its policy as covering

an area which it will deal with in future regulations. The policy is the rule it intends

to follow in the present and future. Id., 910 A.2d at 146-147. Moreover, in

promulgating its policy, DOH did not follow the RTKL, which requires that

policies be posted on its website. §504(b)(4). No such policy is evidenced there.

As to the third inquiry, the policy restricts DOH’s discretion. DOH said

flatly in its OOR submission that it “cannot and will not” release the names of

medical personnel associated with an abortion provider. It repeats that statement to

this Court. DOH Br.,18. It further cites a report of the National Abortion

Federation (“NAF”), the abortion industry’s trade association, characterizing it as

“material statistics from real incidents”, and concluding that all abortion clinic

personnel are and will be subject to a “potential for harm” if the records are

released. R.44a. In view of this, no discretion based on further evaluation would

prompt DOH to take a different position. Thus DOH “policy” is a binding norm,

which should have been promulgated with notice and comment, and cannot be

enforced absent proper promulgation.

5

II. DOH’s Redaction Decision Is Not Permitted by Either the Abortion Control Act or the Right To Know Law.

In the alternative, assuming DOH’s redaction decision in this case was based

on a policy that did not require promulgation, its decision must be justified “as if

the policy did not exist.” Rushton Mining, supra, 139 Pa. Commw. 648, at 658.

DOH’s redaction decision is unjustified under either the ACA or the RTKL.

A. The Requested Records are Not Exempt from Disclosure Under the Abortion Control Act.

The OOR correctly rejected DOH’s argument, based on the ACA, that the

requested records are not public records at all. OOR Fin. Det., 6-7. The ACA

provides that “[r]eports filed pursuant to subsection (a) or (h) [of the ACA] shall

not be deemed public records within the meaning of … the Right to Know Law,”

18 Pa.C.S. 3214(e)(2) (emphasis added). Crocco did not request reports filed

pursuant to the ACA. As DOH acknowledges, she requested licensure applications

whose filing is required by the Health Care Facilities Act (“HCFA”), 35 P.S. §

448.807. The OOR correctly found that the ACA’s treatment of reports filed under

it does not apply to licensure applications filed under the HCFA.2

DOH and Intervenors repeat their argument before this Court, but the

argument is no more persuasive. (DOH Br., 16-18; Intervenors Br., 22-25). While,

as noted, the ACA provides that certain reports filed pursuant to it are not to be

considered public records, the HCFA contains no such provision. Since the 2 Some reports filed under the ACA are public, such as facility reports filed

by state-funded facilities. §3207(b).

6

legislature is presumed to know the laws it passes, the Court may not conclude that

the legislature’s treatment of license applications and renewals under the HCFA as

public records was unintended. See 1 Pa.C.S. § 1921(b) (“Construction of Statutes

... (b) When the words of a statute are free and clear of ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit.”); Hoy v. Angelone,

554 Pa. 134, 143 (Pa. S.Ct. 1998) (Legislature’s silence on punitive damages, in

view of the “nature and purpose” of the legislation, indicated punitive damages are

not recoverable under it.)

The “nature and purpose” of the ACA and HCFA are different, justifying

their differing treatment of records filed under each statute. Reports under ACA §

3214(a) include sensitive information on each abortion procedure performed in the

Commonwealth, including about the patient, the pregnancy, the physician

performing the abortion, the facility where it was performed, and the procedure

itself. 18 Pa.C.S. § 3214(a). HCFA licensure applications contain no information

specific to an abortion procedure, just information relevant to a facility’s

qualification to perform medical services. These differences justify treatment of

these ACA records as non-public, and HCFA records as public.

7

B. The DOH Has Not Met Its Burden of Proving That the Requested Records Are Exempt Under the RTKL.

1. DOH Did Not Evaluate Risk As to “An Individual”, The Test Required By RTKL §708(b)(1)(ii).

The phrase “of an individual” in RTKL §708(b)(1)(ii)3 focuses the

exemption on individualized risk, i.e. evaluation of risk for each individual who is

potentially placed in harm’s way by a disclosure. A generalized analysis of risk is

insufficient to satisfy the exemption. See In the Matter of Pennsylvanians for

Union Reform, 2014 PA O.O.R.D. LEXIS 99, *26 (a “general and broad-sweeping

approach to withhold records of individuals of a certain age, without more concrete

evidence of how each individual’s address is exempt from disclosure under Section

708(1)(ii), does not meet [the agency’s] burden of proof under the RTKL.”); In the

Matter of Timothy Carroll, 2009 PA O.O.R.D. LEXIS 201, 8 (“the physical safety

of an individual is a fact-driven, case-by-case determination.”); Delaware County

v. Schaefer, 45 A.3d 1149, 1158 (Pa. Commw. 2012) (“General, broad-sweeping

conclusions will not be a substitute for actual evidence of the likelihood of

demonstrable risk to the individuals involved posed by a particular disclosure. A

denial under the RTKL must be supported by demonstrable evidence...that the

release of the specific information about a person would be reasonably likely to

result in substantial risk to his personal security.”)

3 RTKL §708(b)(1)(ii) exempts from disclosure “a record the disclosure of

which: . . . (ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”

8

DOH ignored this requirement when it applied its policy, adopting just the

“general and broad-sweeping approach” that the exemption prohibits. Citing only

generalized data, DOH essentially held that all “abortion facility staff and their

families” in Pennsylvania would face a substantial and demonstrable risk to their

physical safety and personal security if the requested records were released

unredacted.4 R.44a. Applying its policy freed DOH from making an individualized

evaluation of risk, which was the policy’s very purpose given its lack of evidence

that any “individual” faced a substantial and demonstrable risk. But, as noted

earlier, DOH is not entitled to apply a general statement of policy, but must ignore

the policy and satisfy the exemption as it is written. Rushton Mining, 139 Pa.

Commw., at 658. In applying its policy rather than satisfying the requirements of

the exemption, DOH based its redaction decision on “[m]ere speculation of harm

from the possible use of records [which], without more, does not demonstrate a

reasonable likelihood of harm from the disclosure of records.” Abraham v. Sch.

4 DOH cited the following in support of its decision: (a) a report of an

industry trade group (National Abortion Federation), R.46a-51a; (b) an article on cyber-warfare against abortion clinic websites, R.52a-60a; and (c) a 2010 RAND Corp. study (which studied whether violence significantly reduced the number of abortions performed, concluding that it did not.). R.61a-117a. None of this evidence focused on Pennsylvania, let alone on risk “an individual” in Pennsylvania, whose name is contained in the requested records, would face if his or her name were disclosed.

The DOH also said in support of its policy that it gave assurances to filers that it would not disclose their information. R. 44a. This is not a valid justification for a blanket redaction policy. The RTKL does not allow a mandatory filer to reach a private arrangement with the government to shield otherwise public records from public scrutiny.

9

Dist. of Phila., 2012 PA O.O.R.D. LEXIS 47 *14. See also DOH v. Wallace

McKelvey et al., 2018 Pa. Commw. Unpub. LEXIS 520, *14 (“‘Reasonably likely’

means more than just ‘may.’”).

2. DOH May Not Evade the Requirement For Individualized Evaluation By Citing A “Large Group” Exception.

Intervenors try to evade the requirement for individualized proof by citing

Purcell v. Governor’s Office of Admin., 35 A.3d 811, 818 (Pa Commw. Ct. 2011)

(Intervenors’ Br., 12). In that case this Court permitted an agency to exempt birth

dates of about 70,000 employees, finding that there were no distinguishing factors

among the 70,000 and that the normal individualized proof standard would be

“impractical” given the large number of records involved. That precedent does not

control this case, which involves records of medical professionals and others in

supervisory positions in only 17 facilities. DOH and Intervenors offer no reason

why a case-by-case individualized evaluation cannot be made. That they have

chosen not to identify individualized risk rather obviously reveals their inability to

do so. But a Purcell-type generalized showing is exceptional and normally

insufficient to meet the exemption. State Employees’ Retirement System v. Fultz,

107 A.3d 860, 868 (Pa Commw. Ct. 2015) (“By its terms, the personal security

exception does not specifically provide for a blanket exception for certain classes

or large groups of individuals.”). Rather, the RTKL exemptions are to be read

narrowly, and applied strictly as written. Municipality of Mt. Lebanon v. Gillen,

10

151 A.3d 722, 730 (Pa. Commw. Ct. 2016). DOH has identified no exceptional

circumstances justifying other than individualized proof.

3. This Court Owes No Deference to the DOH’s Redaction Decision Because Abortion Clinics Are Not Analogous to Prisons.

DOH cites Stein v. Office of Open Records, 2010 Pa. Commw. Unpub.

LEXIS 313, at *10-11, essentially arguing that this Court should defer to its

redaction decision in the case of abortion clinics just as the judiciary defers to

judgments made by prison officials in matters involving the security of prisons.

R.44a; DOH Br., 14. However, the two settings are not analogous, and deference in

this case is wholly inappropriate. In Stein the Department of Corrections had a

policy of disallowing inmates from learning the first names of corrections officers

in order to protect the latter and their families from retaliation in a setting where

guards work daily with criminals in a close, constrained and adversarial

environment. When an inmate requested the names of prison employees, the

Department cited its confidentiality policy -- and other evidence showing examples

of actual harm flowing from knowledge of first names -- to support its redaction of

first (but not last) names from requested records. This Court noted that the security

concerns in prisons are unique and courts should defer to the expertise in these

matters of prison professionals. It allowed the redaction, explaining:

[i]n doing so, this Court is mindful that Requester is an inmate of the Department, and that "[a] prison setting involves unique concerns and security risks." Commonwealth v. Dugger, 506 Pa. 537, 542, 486 A.2d 382,

11

384 (1985). The Pennsylvania Supreme Court has stated that . . ."prison officials must be allowed to exercise their judgment in the execution of policies necessary to preserve order and maintain security free from judicial interference." Bronson v. Central Office Review Committee, 554 Pa. 317, 321, 721 A.2d 357, 358 (1998); see also Beard v. Banks, 548 U.S. 521, 530, 126 S. Ct. 2572, 165 L. Ed. 2d 697 (2006) (stating that with respect to matters involving professional judgment, courts' "inferences must accord deference to the views of prison authorities").

Stein, at *10-11. No similar grounds for deference to DOH exist in this case.

Unlike prison authorities, DOH claims no expertise in identifying safety risks in

abortion clinic operations. That much is clear from its citation of the report

prepared by the NAF, an industry trade group, to support its redaction decision,

rather than its own experience or expertise. Moreover, the Pennsylvania Grand

Jury’s finding, in the case of Dr. Kermit Gosnell, that DOH acted in “utter

disregard” for “the safety of women who seek treatment at abortion clinics and for

the health of fetuses after they become viable” as well as its “disregard for the laws

it is supposed to enforce” hardly speaks well of any claimed basis for deference by

this Court.5 Grand Jury Report, cited at Petitioner’s Br., 27.

Moreover an abortion clinic does not present the same “unique concerns and

security risks” that a prison does. Inmates and their corrections officers have a

direct, personal relationship including physical contact. That relationship includes

the imposition of discipline on the inmates by the corrections officer. Crocco has 5 The Grand Jury report blames DOH’s political agenda for failing to

properly regulate Gosnell’s clinic. “[T]he Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all. The politics in question were not anti-abortion, but pro.” Id., at Section I.

12

no relationship of any kind with any of the persons whose names and license

numbers are contained in the requested records. Crocco, as a member of the

public, not an incarcerated inmate, is requesting the records. (As this Court said in

Stein, “Inmates do not enjoy the same “panoply of rights” as non-incarcerated

citizens” and “[d]isclosure of the first names of corrections officers to the general

public might not pose the same risk of harm as disclosure of those names to an

inmate.” Stein, *14).

Even in a prison setting, where courts show special sensitivity to heightened

safety and security risks, courts do not allow the safety and security exemption to

apply as a per se policy or rule, but require relevant and material evidence

supporting a decision to withhold records. See, e.g., State Employees’ Retirement

System v. Fultz, 107 A.3d. 860 (Commw. Ct. 2015); Carey v. Pa. Dept. of

Corrections, 61 A3d 367, 374 (2013); Buehl v. Pa. Dept. of Corrections, 955 A.2d

488, 493 (Commw. Ct. 2008) (in overturning OOR denial of records, “The

Department [of Corrections] offers only conclusory and alarmist statements of

potential harm. In effect, the Department asks that we assume a connection

between disclosure of the [record] and the potential for impaired prison or personal

security.").

For these reasons, the setting of an abortion facility cannot legitimately be

equated to that of a prison. Nor can a request from Crocco, a registered nurse

whose research is not self-interested, and has never harmed the physical safety or

13

security of any individual, be equated with the request of an incarcerated criminal.

Stein offers no support for DOH’s redaction decision.

4. The Evidence, Taken Individually And As a Whole, Fails to Satisfy DOH’s Burden of Proving That the Records are Exempt From Disclosure.

DOH asserts that the record shows “specific factual evidence” and “cold

hard facts”, and that “there has never been a more apt usage of the personal safety

and security exemption than in this case.” (DOH Br., 15). The Intervenors echo

this, asserting that their evidence is “highly detailed, particularized, first-hand,

unrebutted” and corroborated and contextualized by accompanying studies and

articles. (Intervenors Br., 12). However, none of the “facts” the DOH or

Intervenors put forward establishes that “an individual” whose name is contained

in the disputed records is reasonably likely to face a substantial risk of physical

harm as a result of disclosure of that person’s name or professional license number.

i. The Evidence Fails to Connect Disclosure of a Name with a “Reasonably Likely” Substantial Risk to “An Individual” as Required by §708(b)(1)(ii).

None of the incidents in the twenty-one categories of anti-abortion incidents

culled by DOH from the Intervenors’ affidavits is shown to have been caused by

disclosure of a name or license number. (DOH Br., 6-8). Otherwise stated, non-

disclosure of a name or license number would not have prevented any of the

recited incidents. All incidents either occurred at abortion facilities -- and so by

definition were unconnected with disclosure of a name or license number (DOH

14

Br., 6-8, categories 1-9; 13-15; 19-21) -- or were facilitated by a perpetrator who

had obtained an individual’s personal identification information, which is not at

issue here since Petitioner does not seek personal identification information. (Id.,

categories 10-12, 16). As an example, DOH states in category one that there are

“regular protests outside facilities”. DOH Br., 6. This may be true, but even so,

protests at abortion facilities are irrelevant to assessing the risk faced by an

individual from disclosure of his or her name or license number. Each of the 21

categories of incidents suffers from this defect. None establish that disclosure of a

name or license number alone caused a listed incident.

The Intervenors similarly categorize incidents culled from their affidavits,

but the incidents again are non-probative because they either occurred at abortion

facilities, or were facilitated by disclosure of personal identification information,

not a name or license number. None of the affidavit evidence shows “an

individual” whose safety or security was substantially put at risk by disclosure of a

name or professional license number alone. (Intervenors Br., 12-13).

DOH and Intervenors try to cure this lack of probative evidence by piling up

ever more incidents, harking back decades, and stretching across the U.S. and

Canada, hoping that the quantity of incidents will make up for their lack of

probative quality. See NAF Report (R. 216a - 238a), Feminist Majority Foundation

15

(“FMF”)6 (R.154a), and a 2010 RAND report (R. 61a-117a). However, all the

incidents listed suffer from the same defect: they do not link disclosure of a name

or license number with a substantial risk of physical harm or to the personal

security of an individual.7 Buehl v. Pa. Dept. of Corrections, supra, 955 A.2d at

493 (“conclusory and alarmist statements of potential harm” do not establish “a

connection between disclosure of the [record] and the potential for impaired prison

or personal security” at 493).

ii. The Survey Reports, Which are Based on Hearsay, Lack the Trustworthiness Required to Be Relied On As Evidence.

DOH and Intervenors rely heavily on the NAF and FMF survey reports.8

These reports are hearsay, and lack the elements of trustworthiness required by

courts to accept, let alone rely on, such survey evidence. See Pittsburgh Press

Club, 579 F.2d 751, 758 (3d Cir. 1978). The Court should not rely on these reports

as probative evidence.

6https:www.feminist.org/anti-abortion-violence/images/2016-national-clinic-

violence-survey.pdf. (last accessed 3/18/2019). 7 The OOR’s Final Determination is no more specific. After listing examples

of abortion-related incidents, the OOR simply concluded that the evidence was sufficient. R.293a. Lacking was any connection of incidents with disclosure of a name or professional license number of an individual.

8 DOH and Intervenors cite the NAF report no fewer than 19 times in the

record. R. 030a, ¶¶ 8-9; R. 036a, ¶¶ 6-8; R. 042a; R. 046a-051a; R. 056a; R. 061a; R. 066a; R. 067a; R. 069a; R. 095a; R. 098a; R.116a; R. 153a-154a; R. 212a-214a; R. 216a-238a; Resp. Br. at 8, ¶¶ 18-21; Resp. Br. at 12; Intervenor Br. at 7, 14-15. The OOR appeals officer also cited the NAF Survey in her Final Determination. R. 290a, 292a.

16

One defect in them is that an appropriate population, i.e. Pennsylvania

abortion facilities, is not surveyed. The NAF survey is nationwide, and also

includes Canada, and since 2013, Colombia. R. 217a - 221a. The NAF data is not

referenceable by state, except for incidents of severe violence as to which

Pennsylvania is not listed at all. R. 223a-238a. Consequently, there is no evidence

to what extent Pennsylvania participated in the survey, and no evidence that the

report’s nationwide results are representative of Pennsylvania. The FMF report

likewise contains no state-specific data. In addition, only 319 of 740 invited clinics

participated in the FMF survey.9 Like the NAF report, there is no evidence of data

reported from Pennsylvania or that the general results are characteristic of

Pennsylvania’s experience. As a result, extrapolation of results from either report

to Pennsylvania is speculative.

Another defect in the NAF report is that member facilities self-report

knowing that NAF uses the report data to promote the abortion industry’s self-

interested narrative that abortion providers are in danger and need more protective

laws and security services (which NAF offers to its members). (Brown affidavit, R.

212a, Paras 2-4). Accordingly, responders have an incentive to report inaccurately.

FMF members also complete their surveys knowing data will be used to advance

an agenda. As a result, both surveys are biased, not objective. They are no more

9 One can reasonably assume selection bias kept the response number low,

because clinics free from violence could determine that there is no benefit to itself or to the industry to submit an incident-free survey.

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than self-serving advocacy pieces intended to advance an industry agenda.

There is no doubt that the NAF’s agenda influences its ability to perceive

and evaluate events. Its willingness to protect the abortion industry was on stark

display when it inspected Dr. Gosnell’s abortion clinic for two days on December

14 and 15, 2009, a clinic objective authorities described as filthy and vile. After

observing these conditions, NAF never reported the horrific conditions to DOH,

even though it denied Gosnell a clinic certification as a result of the inspection.

Clearly, NAF’s allegiances do not run to the public health, but only to its members

and potential members. In re County Investigating Grand Jury XXIII, 2011 WL

711902 (2011), at Sections I & III. (After reciting numerous dangerous practices

witnessed by the NAF evaluator, who called the clinic the worst facility she had

ever seen, the Grand Jury offers, “[W]e have to question why an evaluator from

NAF, whose stated mission is to ensure safe, legal, and acceptable abortion care,

and to promote health and justice for women, did not report Gosnell to authorities.”

Id., at Section III).

While the OOR appeals officer has a right to consider any evidence she finds

“reasonably probative and relevant,” 65 P.S. § 67.1102(a)(2), and while she

decided to take the NAF and FMF reports at face value, this Court may, and

should, examine the record with fresh eyes and reject an appeals officer’s findings

of fact and law that are not based on objective fact. Dept. of Conservation and

Natural Resources v. Office of Open Records 1 A.3d 929, 936 (Commw. Ct. 2010)

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(confirms Court’s authority to “substitute its own findings of fact for that of the

agency” and “look to information beyond the contents of the record to be

reviewed… . In other words, the Court can accept additional evidence and make its

own factual findings”). The Court should do so in this case. The absence of

recognized safeguards of accuracy and reliability, and their obvious bias, renders

the NAF and FMF reports unqualified for this Court’s consideration as probative

evidence.

iii. There Is No Proof That Crocco or Her Employer Poses Any Risk to Any Individual Named in the Records.

The motives of the requester are obviously relevant in assessing the

applicability of the §708(b)(1)(ii) exemption because they bear on the likelihood

that the hypothesized harm will occur. Sparing no effort to malign the motives of

Crocco and her employer, the Pro-Life Action League, DOH and Intervenors liken

this case to Rosalie Gross v. Pa. Dept. of Health, OOR Docket AP 2013-1595, at

5-6.

In so doing they ignore Crocco’s credentials as a licensed nurse who has, for

the last 7 years, used records of the same sort she requested here to check medical

professionals’ bona fides, including related felony convictions, medical board

disciplinary actions, and facility deficiencies. She has affirmed in her affidavit that

she has “never been accused of using the information in those records to harass any

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individual and I have never done so.” R. 268a.10 This is unrebutted.

In Rosalie Gross, Gross sought names and medical licenses of medical

personnel whom she had “verbally harassed” at an abortion clinic, and whose

“behavior was escalating”. Nothing of the sort has been alleged against Crocco.

DOH and Intervenors next turn to Crocco’s employer, Pro-Life Action

League (“PLAL”), asserting 14 times in their briefs that the organization is

“extremist.” Actually, PLAL is totally non-violent and peaceful in its pro-life

activities. Its mission is to save unborn children from being aborted through

counseling and actions designed to remind the public what abortion really is, the

killing of human beings. See https://prolifeaction.org/about/ (last accessed

3/18/2019). Even the authors of the RAND Corp. article offered by DOH

recognize this, stating in 2010 that PLAL promotes non-violent, “less

confrontational” activities such as sidewalk counseling. R. 067a. No evidence to

the contrary since 2010 has been pointed to by DOH or Intervenors.

Significantly, PLAL’s founder, Joseph Scheidler, who was targeted in a

1980’s lawsuit by the National Organization of Women, was totally exonerated

after 28 years of litigation, which included three trips to the U.S. Supreme Court.

At its end, Scheider’s opponents were ordered to pay his costs and fees. NOW, Inc.

10 Intervenors assert that Crocco helped shut down an abortion clinic.

R.148a. Actually, the State of Illinois closed it when the clinic chose not to pay a $36,000 fine the State levied for violations of law. R.273a.

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v. Scheidler, 750 F.3d 696, 697 (7th Cir. 2014) (“All defendants who stuck it out to

the end (some settled) prevailed across the board.”)

Neither DOH nor the Intervenors have identified any action PLAL has

undertaken that would pose a threat of physical harm or to personal security of any

of the individuals whose names were redacted in the records. The only direct

connection pointed to between PLAL and a clinic was in the form of a letter

written by Eric Scheidler, Executive Director of PLAL, to the Mazzoni facility.

R.194a. In it he urged the clinic to pay close attention to the case of Oklahoma

abortion doctor Naresh Patel, who had been arrested for fraud in 2014. Scheidler’s

January 22, 2015 letter said: “Could you be next? If you want to get out of the

abortion business, give me a call.” Scheidler included his own name and telephone

number. R.194a.

Subsequent events underscored Scheidler’s message. In 2016 Patel

surrendered his medical license after being convicted, which can be verified by

checking Oklahoma's medical board (http://www.okmedicalboard.org/search )

using Patel’s name. (Status: surrendered license after admitting "to dishonorable

or immoral conduct which is likely to deceive, defraud or harm the public. . .”).

Petitioner wants this ability to investigate abortion professionals in Pennsylvania,

which provides similar general access to information about license holders, except

abortion providers. Without a name or license number, she is cannot do so.

Nothing in Scheidler’s letter to the abortion facility constitutes a “substantial

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and demonstrable” threat of physical harm to, or an invasion of personal security

of, any individual at the facility. To suggest otherwise is ludicrous.

Intervenors cite several cases from jurisdictions other than Pennsylvania,

which, they claim, support their argument that names should be protected from

disclosure, but the cases are distinguishable. In Judicial Watch, Inc. v. FDA, 449

F.3d 141, 152 (D.C.Cir. 2006), decided under the federal Freedom of Information

Act, redaction of names and addresses was upheld because “the release . . . would

‘create[] a palpable threat to privacy.’” In Glenn v. Md. Dep’t of Health & Mental

Hygiene, 446 Md. 378, 132 A.3d 245 (2016), names and email addresses were

redacted. Significantly, the Court pointed out that the information was available

elsewhere such that any woman could find the desired information about providers

in other forms. 446 Md. at 394. This has not been shown to be the case here. In

N.H. Right to Life v. Dir. N.H. Charitable Trusts Unit, 169 N.H. 95 (2016), the

redaction issue turned on balancing privacy vs. public interests in the particular

setting involved. Here, the RTKL governs, not a balancing test. Thus, none of the

cases is controlling or persuasive.

iv. DOH’s Speculation About Use of Names by Third Parties is Insufficient to Satisfy its Burden of Proof.

Having pointed to nothing but speculation that unredacted release of the

requested records to Crocco could harm an individual named in the records, DOH

and Intervenors resort to even more speculation. DOH contends that even if Crocco

refrains from misusing the requested information, “there is nothing to prevent the

22

information from being shared directly or indirectly far beyond the requester.”

(DOH Br. 13; R.043a). But this is true of any information, and this Court has

emphasized that “reasonably likely” means more than just “may.” DOH v. Wallace

McKelvey et al., 2018 Pa. Commw. Unpub. LEXIS 520, *14. (claim that disclosure

‘may expose the Review Panel to a plethora of issues’ is conjecture and simply too

speculative.”); Abraham v. Sch. Dist. of Phila., 2012 PA O.O.R.D. LEXIS 47, *14

(agency’s contention that “an individual's use of the records might result in a risk

of harm” rather than that the release would invariably create a reasonable

likelihood of harm, deemed insufficient to satisfy the agency’s burden of proof).

Here, DOH’s speculation that others might use the disclosed names for nefarious

purposes, is likewise inadequate to satisfy the agency’s burden of proof.11

v. Since Intervenors Have, in Almost All Cases, Voluntarily Placed Their Names In The Public Realm, Disclosure of Their Names or License Numbers Will Not Affect Their Risk.

Intervenors declined to execute their affidavits in their actual names,

implying that they were afraid for their health and safety if they did. This was a

play for sympathy since, as multiple web site references show, in almost all cases,

they voluntarily and intentionally publicize their names on the internet, in social

11 A good example of speculation is DOH’s claim that internet “doxxing”

could put abortion providers’ lives at risk. (DOH Br., 12). The DOH cites a digital article on Wired.com (R. 052a-060a), which, despite its claim that about 14% of clinics in a 2016 survey reported doxxing, fails to cite a single incident of harm to an abortion provider caused by a doxxing event.

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media, and in the press. (Amended Brief of Petitioner, Exhibit 2). Nine of the ten

Intervenors publicize individuals connected with them in this way. These

individuals do not fear publicity, putting the lie to their contrary affidavit claims,

and their refusal to sign them in their own names. This, Petitioner believes, is

strong evidence of the affiants’ bad faith.

Respondents attempt to deflect the force of this contradiction -- a stark one --

by claiming Crocco is raising a “new issue” for the first time on appeal, and

therefore one that must be considered waived. DOH Br.,19, Intervenors' Br., 27.

This is incorrect, inasmuch as Crocco is simply pointing the Court to additional

relevant evidence, of which it can take judicial notice. What is “new” here is the

duplicity of the Intervenors on display and showing that while cowering in their

affidavits they cavort on the web and in social media.12

Finally, DOH and Intervenors argue, ludicrously, that Crocco’s request must

be moot if the Intervenors’ names are already publicly disclosed. DOH Br., 15;

Intervenors’ Br., 10, 16, 27). Crocco is entitled, by the RTKL, to the “public

records” she has requested residing with the DOH. The RTKL does not erase the

12 Even if this were “new” evidence or argument, this Court, in an RTKL

case, “functions as a trial court although the matter appears in our appellate jurisdiction.” Bowling v. Office of Open Records, 990 A.2d 813, 819 (Commw. Ct., 2010), aff'd, 75 A. 3d 453 (2013). As such, it may “look to information beyond the contents of the record to be reviewed ... and make its own factual findings.” Dept. of Conserv. and Natural Resources v. Office of Open Records, 1 A.3d 929, 936 (Commw. Ct. 2010). It should do so here.

24

efficacy of her request because similar information may be found elsewhere in

another form. Nor has she obtained all the information she seeks. For example, she

has not received the professional license numbers she requested.

Even if Crocco had secured all of the information she requested, this matter

would not be moot. The Court recognizes the “capable of repetition yet evading

review” exception to the mootness doctrine. In Philadelphia Public School

Notebook v. School Dist. of Philadelphia, 49 A.3d 445, 449 (Commw. 2012), a

news service requested school district records but was able to secure them from

other sources during the course of litigating the denial. The Court held the request

was not moot because the agency could deny a new request, and the denial might

not be resolved in litigation while the information remained useful. The same is

true here. Since the requested records are filed yearly, and the litigation of DOH’s

denial will take more than a year to reach a decision, the 2018 information will be

superseded before the litigation is over. Thus, no part of Crocco’s appeal is moot.

III. Crocco Did Not Waive Her Argument That the Names of the 5% Owners, Officers and Board Members of Certain Intervenors Are Unconditionally Disclosable under the Health Care Facilities Act.

In its Final Determination, the OOR noted that Crocco claimed the records

were public under the Health Care Facilities Act, but did not “point to any

language which suggests that such records are unconditionally public” R. 254a,

289a. Crocco filed a timely Petition for Reconsideration arguing that Chapter 8 of

the HCFA unconditionally requires DOH to disclose the names of 5% owners,

25

officers, and board members:

(e) Public disclosure. -- The department shall require disclosure of the persons owning 5% or more of the health care facility as well as the health care facility’s officers and members of the board of directors.

35 P.S. § 448.806(e) (emphasis added). The OOR considered but rejected

Crocco’s 806(e) public records argument: “the provisions of 35 P.S. § 448.806(e)

do not alter our conclusion that the Right to Know Law exemptions are applicable

to the information requested.” R. 301a. Crocco appealed this finding. The DOH

and Intervenors do not cite any case that Crocco’s legal argument in her Petition

For Reconsideration, decided by the OOR, was waived on appeal. It was not since

the OOR considered and decided the issue on its merits, and its decision was

timely appealed. The OOR considered no additional evidence in deciding the

issue. The issue is therefore properly before the Court. Crocco substantive position

is located at her opening brief at pp. 32-33.

In a footnote, Intervenors respond to the merits of the argument, saying,

“[s]imply because a record is generally a public record does not remove it from the

protection of the RTKL’s statutory exemptions.” (Intervenors’ Br., 27, n.2). That

statement is only true when there is no Federal or State law establishing the record

as “public”. 65 P.S. § 67.306.13 As this Court held in Dept. of Labor and Industry

13 65 P.S. §67.306 “Nothing in this [RTKL] Act shall supersede or modify

the public or nonpublic nature of a record or document established in Federal or State law, regulation, or judicial order or decree.”

26

v. Helzel, 90 A.3d, at 831-32, “Once ‘established’ by statute as ‘public,’ a record is

no longer subjected to the traditional public record analysis under the RTKL.

Given this significant consequence, a statute should be clear when it establishes the

public nature of records.” Because HCFA’s § 806. Licensure. (e) Public

Disclosure section explicitly requires public disclosure of a facility’s 5% owners,

its officers, and its board members, the license is a public record under State law

and the RTKL analysis (including its exemptions) is inapplicable. Language more

clearly establishing the public nature of the specified elements of the requested

records than, “Public Disclosure: The Department shall require disclosure…” is

difficult to formulate.

IV. Crocco Did Not Waive Her Argument that State-Funded Facilities’ Applications are Public Records.

In her Petition for Reconsideration, Crocco pointed out that (1) the facilities’

licensure application forms explicitly state that the application constitutes “a public

record if it is filed by a facility that received State-appropriated funds during the

12-months period preceding” a request for the record, and (2) the completed

applications of Drexel OB/GYN Associates and Mazzoni Center Family &

Community Medicine acknowledged receipt of State-appropriated funds.

(Petitioner’s Br., Ex. 3). The quoted language from the application forms reflects a

State law or regulation identifying State-funded facilities records as public records

and comports with the long-held public policy underpinnings of the RTKL. Lukes

27

v. Dept. of Public Welfare, 976 A.2d 609, 625 (Commw. Ct. 2009) (“accountability

in the disbursement of public funds is a primary purpose of the [Right to Know]

Law. (Commw Ct. 2009) (cited favorably Supreme Ct. in Office of the Governor v.

Donahue, 98 A.3d 1223 (2014). As stated above, State laws and regulations

override the RTKL process for determining whether a record is public or nonpublic

(including the application of RTKL exemptions). The OOR declined to address the

issue saying that “your petition alleges evidence that was not before the OOR

during the appeal. The OOR is not permitted to accept new evidence on

Reconsideration, Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 656 n.12 (Pa.

Commw. Ct. 2016).” R. 301a.

The licensure application forms were in fact before the OOR during the

appeal. They are the records DOH sent as an enclosure in response to Crocco's

records request. In her appeal letter, Crocco referred to multiple pages, and offered

to send hard copies to the OOR if requested. R. 12a-13a. No request was made.

Therefore, the OOR cannot reasonably claim that it did not have the applications

before it during the appeal. The Court should address the issue in accordance with

Petitioner’s previously stated arguments. (Petitioner’s Br., 25).

CONCLUSION

Access to HCFA records is too important to be foreclosed because a

regulated industry wants to conduct its operations in secret and finds a willing

listener in a governmental agency. Legitimate concerns about safety of personnel

28

in this industry can be, and are being, addressed through existing laws. No

individual here has shown he or she would face a substantial risk of physical harm

or to personal security as a result of the disclosure. For this reason, closing down

this important source of public safety information is unwarranted and proscribed

by the RTKL. The records the Petitioner seeks should be provided without

redaction of name or license number.

Respectfully submitted, Christopher G. Sweet, Esq. 1955 Cassel Rd. Quakertown, PA 18951

Thomas Brejcha, Esq. Thomas Olp, Esq. The Thomas More Society A National Public Interest Law Firm 309 W. Washington, Suite 1250 Chicago, IL 60606 312-782-1680 tolp@thomasmoresociety.org

Date: March 18, 2019

Attorneys for Jean Crocco

CERTIFICATE OF WORD COUNT

Pursuant to Pa. R. App. P. 2135, the text of the foregoing Brief consists of

6991 words as determined by the Microsoft Word word-processing program used

to generate this document.

Dated: March 18, 2019 /s/ Thomas Olp

29

CERTIFICATE OF SERVICE

The undersigned certifies that he serve the foregoing by sending same by email

March 18, 2019 to:

Susan Frietsche, Esq. Women's Law Project 428 Forbes Ave Ste 1710 Pittsburgh, PA 15219

Kevin Joseph Hoffman, Esq. Office of General Counsel Pa Dept Of Health 625 Forster St RM 825 Harrisburg, PA 17120

John Robert Gyllenhammer, Esq. Drexel University College of Medicine Drexel Univ College/medicine 1505 Race St 13th Fl MS 627 Philadelphia, PA 19102

Jonathan David Koltash, Esq. PA. Department of Health Pa Office Of General Counsel 625 Forster St RM 825 Harrisburg, PA 17120-0701

Carol J. Mowery, Esq. Government Agency Pa Dept Of Health 625 Forster St RM 825 Harrisburg, PA 17120

/s/ Thomas Olp