MEDIA – The Borough of Sharon Hill contends it does not need to respond to a Right-to-Know Request seeking the full and unredacted version of its report on its community policing procedures, in the wake of an officer-involved shooting which killed an 8-year-old girl in August 2021.
Colleen Kennedy first filed a petition to that effect in the Delaware County Court of Common Pleas on Dec. 2 versus the Borough of Sharon Hill.
The petition described the events surrounding the shooting which killed 8-year-old Fanta Bility after a football game at Academy Park High School in Sharon Hill and the subsequent investigation surrounding the Borough’s community policing procedures, which led to the issuance of a report on that same information.
However, Kennedy said the report was full of redactions and her efforts to obtain an unredacted version, the complete series of the report’s exhibit documents and an in-camera review of the list of redactions was refused by the Borough, leading her to appeal to the Office of Open Records.
In its final decision on her appeal, the OOR determined that all of the Borough’s redactions were appropriate under the attorney-client privilege exemption, based solely upon the Attestation of the Borough’s Agency Open Records Officer, Iesea Nichols.
“As a result of the OOR’s decision in this case, as well as the actions of Sharon Hill Borough Council members, the Sharon Hill Police Department, of whom officers killed an eight year-old and endangered an entire gathering of residents, now operates under police department policies that the public has no ability to review, let alone remedy through public advocacy efforts,” the petition said.
“Should another dangerous situation occur again, these policies could and would in all likelihood absolutely be used by offending officers in defense of them keeping their jobs and pensions, as the three officers who shot into a crowd of innocent people did for months prior to their indictment.”
The petition added the Borough’s claim of attorney-client privilege is also inapplicable.
“It was impossible for the OOR and will be impossible for this Court to fully analyze the Borough’s claim of privilege without conducting an in camera review of the unredacted copy of the final report. The law not only allows, but demands a review of the unredacted report. Based on what can be gleaned from the Borough’s privilege log and the unredacted portions of the report, it appears likely that a neutral fact finder, reviewing the unredacted report in camera, could find that the Borough has not met its burden to establish that all of its redactions are protected by the attorney client privilege. A review of the redacted report and the face of the Borough’s privilege log indicates a distinct possibility that some of the redactions are not covered by the attorney-client privilege,” the petition stated.
The petition went on to detail that sections of the report dedicated to the exhibits used in the report, summaries of interviews of police officers, a factual summary of Sharon Hill Borough Police Department’s current use of force policies training and the conclusions of the investigation, were all heavily redacted and thus, of no real value.
“The mere scope of the investigation and the underlying factual materials reviewed would not constitute legal advice. Furthermore, a merely factual review of the training and use of force policies which were in place at the time of the incident also would not constitute legal advice. Finally, the recommendations to the department absent confidential communications, which cannot be known without a review are not legal advice. Therefore, this Court should reject the Borough’s claims of privilege. At the bare minimum, a neutral trier of fact must look at these areas to make sure that the Borough’s claim of privilege is being ‘strictly applied’ and not being abused,” the petition continued.
In November, three former Sharon Hill police officers, Brian Devany, Sean Dolan and Devon Smith each pled guilty to 10 counts of reckless endangerment in connection to the shooting, with each count carrying a maximum sentence of two years.
UPDATE
Counsel for the Borough filed a motion to dismiss the petition on March 14, citing improper service of the petition.
“Plaintiff Colleen Kennedy submitted a Right-to-Know Request on Aug. 1, 2022, listing four requests. On Sept. 8, 2022, the Borough issued its response, granting two requests and denying two requests. Plaintiff appealed the Borough’s denial to the Office of Open Records on Sept. 21, 2022. The Borough responded to petitioner’s appeal on Sept. 30, 2022. On Nov. 2, 2022, the Office of Open Records issued its final decision. Following the final decision, plaintiff filed a petition for review with the Delaware County Court of Common Pleas on Dec. 2, 2022,” the dismissal motion said.
“Plaintiff’s petition for review does not contain a certificate of service. Under 65 P.S. Section 67.1302(a), a requester may file a petition for review or other document as required by Rule of Court with the Court of Common Pleas for the county where the local agency is located. Additionally, 65 P.S. Section 67.1303(a), an agency, the requester and the Office of Open Records or designated appeals officer shall be served notice of actions commenced in accordance with Section 1302 and shall have an opportunity to respond in accordance with applicable local rules. Plaintiff did not effectuate service upon defendant for this petition for review in accordance with 65 P.S. Section 67.1303(a). Because of this deficiency, defendants moves this Honorable Court to dismiss this petition with prejudice.”
The petitioner is representing herself in this matter.
The respondent is represented by Kailie Melchior and Colleen J. Marsini of Kilkenny Law, in Norristown.
Delaware County Court of Common Pleas case CV-2022-009083
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com