Opinion
No. 1287 C.D. 2014
07-23-2015
Michael Kane, II, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Michael Kane, II (Requester) petitions this Court, pro se, for review of the Office of Open Records' (OOR) July 1, 2014 Final Determination denying Requester's appeal. Essentially, Requester presents one issue for this Court's review: whether the OOR erred in denying Requester's appeal. After review, we affirm.
On May 10, 2014, Requester filed a request under the Right-to-Know Law (RTKL) seeking "a copy of the documents submitted to the [Pennsylvania Board of Probation and Parole (Board)] by the Bucks County District Attorney[']s Office in support of the Board[']s decision to cite: 'NEGATIVE RECOMMENDATION MADE BY THE PROSECUTING ATTORNEY', on 10/27/2010, 1/04/2013, and 11/07/2013[,]" as a reason for denying his parole. Requester Br. App. A at A-1. On May 22, 2014, the Board denied the request, stating that records concerning a probationer or parolee are private, confidential and privileged pursuant to Section 61.2 of the Board's Regulations, 37 Pa. Code § 61.2. In support of its position, the Board also cited Pennsylvania's Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §§ 9101-9183, which prohibits secondary dissemination of information generated by another law enforcement agency, and Sections 708(b)(16)-(17) of the RTKL, 65 P.S. §§ 67.708(b)(16)-(17), which exempt criminal and noncriminal investigations from disclosure.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
On June 2, 2014, Requester appealed to the OOR, challenging the Board's denial and asserting grounds for disclosure. The OOR invited both parties to supplement the record. On June 12, 2014, Requester and the Board filed their respective position statements. The Board also filed an Affidavit in support of its position by its Deputy Agency Open Records Officer Janaki Theivakumaran (Open Records Officer), wherein, the Open Records Officer stated, under penalty of perjury, that "the records requested were records other than a statement of the reasons for actions by the Board granting or refusing a parole . . . ." Open Records Officer Aff. at 2 ¶8. On July 1, 2014, the OOR denied Requester's appeal. Requester appealed to this Court.
"This Court's standard of review of a final determination of the OOR is de novo and our scope of review is plenary." Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 2014).
Requester argues that the OOR's denial of his appeal violated his due process rights under the United States and Pennsylvania constitutions. Specifically, Requester contends that the government has a duty to comply with the request because the records are necessary to determine whether the documents were submitted to "magnify a term of incarceration[,]" and/or "in retaliation for [Requester's] successful exercise of 'access of the courts.'" Requester Br. at 8.
First, '[t]he objective of the RTKL 'is to empower citizens by affording them access to information concerning the
activities of their government.' ' Office of Open Records v. C[tr.] Twp., 95 A.3d 354, 358 (Pa.[]Cmwlth.[]2014) (quoting SWB Yankees LLC v. Wintermantel, . . . 45 A.3d 1029, 1042 ([Pa]. 2012)). Second, the RTKL is not a mechanism for an individual to access private or nonpublic information; it is a procedure for individuals to access 'public records'. 65 P.S. § 67.301; Section 302 of the RTKL, 65 P.S. § 67.302. Third, Section 301(a) of the RTKL requires that '[a] Commonwealth agency shall provide public records in accordance with [the RTKL].' 65 P.S. § 67.301(a) . . . .
Under Section 305 of the RTKL, records in the possession of an agency are presumed 'public' unless they are: (1) exempted by Section 708 (exceptions) of the RTKL; (2) protected by privilege; or (3) exempted 'under any other Federal or State law or regulation or judicial order or decree.' 65 P.S. § 67.305. Exemptions from disclosure must be narrowly construed due to the RTKL's remedial nature, which 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. Cmwlth. 2010) (en banc), . . . aff'd, 75 A.3d 458 (Pa. 2013)].
Clinkscale v. Dep't of Pub. Welfare, 101 A.3d 137, 140 (Pa. Cmwlth. 2014) (emphasis omitted).
Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa.[]Cmwlth.[]2013) . . . .
"[U]nder the [RTKL], the right to examine a public record is not based on whether the person requesting the disclosure is affected by the records or if his or her motives are not pure in seeking them, but whether any person's rights are fixed." Id. at 141 (quoting Weaver v. Dep't of Corr., 702 A.2d 370, 371 (Pa. Cmwlth. 1997)).
[U]nder the RTKL, whether the document is accessible is based only on whether a document is a public record, and if
so, whether it falls within an exemption that allows that it not be disclosed. The status of the individual requesting the record and the reason for the request, good or bad, are irrelevant as to whether a document must be made accessible under Section 301(b) [of the RTKL].Id. (emphasis added) (quoting Hunsicker v. Pa. State Police, 93 A.3d 911, 913 (Pa. Cmwlth. 2014)). Therefore, the fact that Requester may need the records to prove an alleged violation of his due process rights does not compel disclosure under the RTKL. Accordingly, the OOR's denial of Requester's appeal did not infringe upon Requester's constitutional rights.
Requester makes additional constitutional arguments, including but not limited to, his right to a jury trial, to confront witnesses and to Brady v. Maryland, 373 U.S. 83, 87 (1963) materials; however, as explained above, none of these reasons compel access to the requested records under the RTKL. --------
In the instant case, the OOR held in its Final Determination that the records requested were not subject to disclosure pursuant to Section 61.2 of the Board's Regulations and, therefore, the records were exempt under Section 305(a)(3) of the RTKL. Section 61.2 of the Board's Regulations provides:
Records, reports and other written things and information, evaluations, opinions and voice recordings in the Board's custody or possession touching on matters concerning a probationer or parolee are private, confidential and privileged; except that a brief statement of the reasons for actions by the Board granting or refusing a parole will at all reasonable times be open to public inspection in the offices of the Board.37 Pa. Code § 61.2 (emphasis added).
Requester requested documentation of the Bucks County District Attorney's Office regarding its negative recommendation upon which the Board relied to deny his parole. This Court has held that "any recommendation made by the . . . prosecuting attorney would qualify as '[r]ecords' and 'evaluations and opinions' that are 'in the Board's custody' that 'touch[ ] on matters concerning a probationer or parolee,' and thus would be considered 'private, confidential and privileged.'" Jones v. Office of Open Records, 993 A.2d 339, 342 (Pa. Cmwlth. 2010) (quoting 37 Pa. Code § 61.2). Further, the Open Records Officer stated in her Affidavit that "the records requested were records other than a statement of the reasons for actions by the Board granting or refusing a parole . . . ." Open Records Officer Aff. at 2 ¶8. Thus, because the requested records are records, evaluations and opinions in the Board's custody that touch on matters concerning a probationer or parolee, and are not a statement of the reasons that the Board refused parole, the requested records are private, confidential and privileged pursuant to Section 61.2 of the Board's Regulations. "[A]s to [an] administrative agency or body itself, a duly promulgated regulation has the force and effect of law." Cugini v. Commonwealth, 512 A.2d 1169, 1172-73 (Pa. 1986). Accordingly, the OOR properly denied Requester's appeal under Section 305(a)(3) of the RTKL.
For all of the above reasons, the OOR's Final Determination is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 23rd day of July, 2015, the Office of Open Records' July 1, 2014 Final Determination is affirmed.
/s/_________
ANNE E. COVEY, Judge