Opinion
No. 740 C.D. 2014
02-17-2015
David Lambert, Petitioner v. Office of Attorney General, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
David Lambert (Requestor) petitions, pro se, for a review of a Final Determination of the Commonwealth of Pennsylvania's Office of Attorney General (OAG) denying his request under the Right-to-Know Law (RTKL) for access to various documents regarding two of the witnesses who testified against him in his criminal prosecution. For the following reasons, we affirm in part and reverse in part, and we remand the matter for further proceedings.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
I.
Requestor submitted a RTKL request to the OAG for ten categories of documents concerning Justin Judd and Felicia Cooper (the witnesses), who testified against him in a criminal trial, allegedly in exchange for reduced sentences but who denied the receipt of any favorable treatment during their cross-examinations. Specifically, Requestor sought:
1. "any and all agreements, promises, offers, inducements, rewards or other things of value provided to [the witnesses] in connection with or related to [their] testimony or appearance; in reference to Docket No. CP-36-CR-0000928-2010";
2. [the witnesses'] criminal histories and any requests made by them "to the prosecuting authority for any favor or benefit for [them] or another, regardless of whether such request was granted or not";
3. any statement made by [the witnesses] that is inconsistent with their testimony at trial, any exculpatory statements they made, and any police reports or interview notes memorializing police officers' conversations with them;
4. "any plea-bargains, immunity agreements or orders, or any representation of the [OAG], oral or written, in reference to [the witnesses]";
5. "any correspondence between the [OAG] and [the witnesses] or his/her lawyer relating to his/her immunity, plea bargain, or status in any other respect";
6. "how often, and for how long on each occasion, has [sic] [the witnesses] been interviewed in connection with Docket No. CP-36-CR-0000928-2010 by prosecutors and law enforcement agents";
7. Copies of [the witnesses'] grand-jury testimony or other statements made under oath;
8. "any postponement of sentencing or delay of prosecution of [the witnesses]";(Certified Record [C.R.] at 2-3.)
9. "any proffer" by either witness's attorney or the OAG's prosecuting attorney; and
10. "any and all cooperation/assistance given by [the witnesses] to prosecuting and law enforcement authorities in obtaining arrest separate from Docket No. CP-36-CR-0000928-2010."
The OAG's Open Records Officer (Agency Officer) denied the request, finding that it was insufficiently specific under Section 703 of the RTKL, 65 P.S. §67.703, because it did not clearly define the documents sought, was overly broad in time frame and the scope of documents sought, and subject to multiple interpretations. With regard to requests 2, 3, 6, 8 and 10, the Agency Officer denied the requests on the additional grounds that research and analysis was required to ascertain the identities of the documents sought and whether those documents were responsive in violation of Section 703 of the RTKL, 65 P.S. §67.703.
Specifically, the Agency Officer advised, "Your requests using the terms 'any and all' and/or 'any' that refer to [the witnesses] in connection with docket no. CP-36-CR-0000928-2010 do not adequately describe a particular record." (C.R. at 29.)
Insofar as documents responsive to requests 1, 3-5, 7 and 9 could be identified, the Agency Officer explained that those documents were exempt from disclosure because they were records maintained as part of a criminal investigation pursuant to Section 9106(c)(4) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §9106(c)(4); as secret matters occurring before the grand-jury pursuant to Section 4549(b) of the Investigating Grand Jury Act, 42 Pa. C.S. §4549(b); and as records relating to criminal investigations under Section708(b)(16)(i), (ii), (iv) and (vi)(A) of the RTKL, 65 P.S. §67.708(b)(16)(i), (ii), (iv) and (vi)(A). Further, the Agency Officer advised that Section 305(a) of the RTKL precluded release of the requested documents because they were privileged and, therefore, not within the purview of a "public record." 65 P.S. §67.305(a).
II.
Requestor appealed to the OAG's Right-to-Know Appeals Officer (Appeals Officer) claiming that his requests were sufficiently specific and that access should be provided pursuant to the rationale employed in Coley v. Philadelphia District Attorney's Office, 77 A.3d 694 (Pa. Cmwlth. 2013), which held that certain records contained in a district attorney's file were not per se inaccessible. The Appeals Officer issued a Final Determination affirming the Agency Officer's decision for the reasons stated in his prior denial letter without addressing the applicability of Coley. This appeal followed.
Initially, the Appeals Officer denied the appeal as untimely filed but upon reconsideration, agreed to review the appeal's merits pursuant to the prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
This Court's standard of review is de novo and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
III.
A.
On appeal, Requestor argues that the Appeals Officer erred in withholding the requested documents under Coley which he asserts renders the subject documents "public" records for RTKL purposes. The OAG concedes that neither the Agency Officer nor the Appeals Officer considered Coley but counters that nonetheless, the Final Determination should be affirmed because the request was overly broad and insufficiently specific.
Initially, OAG contends that because Requestor failed to explain why OAG's finding that his requests were insufficiently specific was wrong, his appeal should be dismissed. However, in Requestor's appeal to the Appeals Officer, he explained, "Appellant's requests identifies [sic] specifically documents the [sic] are sought after." (C.R. at 12.) Because the determination as to whether the requests were specific enough is based upon the face of the requests themselves, more was not needed to challenge the OAG's conclusion in this regard. See Barnett v. Pennsylvania Department of Public Welfare, 71 A.3d 399, 405-06 (Pa. Cmwlth. 2013).
Regarding the claim that the subject requests were insufficiently specific, Section 703 of the RTKL provides, "A written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested and shall include the name and address to which the agency should address its response." 65 P.S. §67.703. This provision derives from the rationale that:
While the purpose of the RTKL is to provide access to public records in order to prohibit secrets, allow the public to scrutinize the actions of public officials, and make public officials accountable for their actions, it would place an unreasonable burden on an agency to examine all its [records] for an extended time period
without knowing, with sufficient specificity, what [agency] business or activity the request is related.Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa. Cmwlth. 2011).
Section 703 of the RTKL precludes requests which require "files to be reviewed and judgments made as to the relation of the documents to the specific request." Department of Environmental Protection v. Legere, 50 A.3d 260, 264 (Pa. Cmwlth. 2012). Rather, "a clearly-defined universe of documents" must be requested such that "[t]here are no judgments to be made as to whether the documents are 'related' to the request" because the documents either do or do not fall within the ambit of the request. Id. at 265. In determining whether a request satisfies Section 703 of the RTKL, "the specificity of a request must be construed in the request's context, rather than envisioning everything the request might conceivably encompass." Askew v. Pennsylvania Office of Governor, 65 A.3d 989, 992 (Pa. Cmwlth.) (per curiam), appeal denied, 72 A.3d 604 (Pa. 2013).
In the instant case, Requestor seeks documents created in the context of his criminal prosecution at Docket No. CP-36-CR-0000928-2010. Insofar as he requested documents related to the prosecution's offers or agreements to provide the witnesses with favorable treatment in exchange for their testimony against Requestor, the requests were sufficiently specific. See Legere, 50 A.3d at 265 (explaining that a request is not insufficient just because it requests copies of "all" ascertainable documents). But see Montgomery County v. Iverson, 50 A.3d 281, 284 (Pa. Cmwlth. 2012) (en banc) (explaining that a request is insufficiently specific where it provides no timeframe, fails to identify the individuals between whom the communication was made, and provides no context within which the search may be narrowed). Likewise, the following requests made with regard to criminal docket number CP-36-CR-0000928-2010 are sufficiently specific to enable the OAG to ascertain which documents are sought: the witnesses' criminal histories, their requests for favorable treatment from the prosecution, police reports or interview notes memorializing conversations with the witnesses, plea or immunity agreements entered into by the witnesses and correspondence between the witnesses and the prosecution regarding the same, documents reflecting the dates on which the witnesses were interviewed by the prosecution or police officers and the lengths of those interviews, and copies of the witnesses' grand-jury testimony or other statements under oath.
This request encompasses the request for documents regarding postponement of the witnesses' sentencing or delay of their prosecution.
Conversely, the following requests are insufficiently specific because they require the OAG to conduct research and make judgments to determine which documents are responsive: statements by the witnesses which are inconsistent with their trial testimony, exculpatory statements made by the witnesses, "any representation of the [OAG], oral or written, in reference to [the witnesses]," "any proffer" by the witnesses' attorneys or the OAG's prosecuting attorney, and "any and all cooperation/assistance given by [the witnesses] to prosecuting and law enforcement authorities in obtaining arrest separate from Docket No. CP-36-CR-0000928-2010." See Mollick, 32 A.3d at 871 (finding insufficiently specific a request for: "(1) all emails between the Supervisors regarding any Township business and/or activities for the past one and five years; and (2) all emails between the Supervisors and the Township employees regarding any Township business and/or activities for the past one and five years").
B.
Regarding those requests which are sufficiently specific, we must next determine whether the requested documents constitute "public records" for RTKL purposes. A record is deemed "public" and, therefore, is generally subject to disclosure when it "(1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." Section 102 of the RTKL, 65 P.S. §67.102. However, the RTKL exempts from public disclosure agency records "relating to or resulting in a criminal investigation, including":
(i) Complaints of potential criminal conduct other than a private criminal complaint.Section 708(b)(16)(i), (ii), (iv) and (vi)(A) of the RTKL, 65 P.S. §67.708(b)(16)(i), (ii), (iv) and (vi)(A).
(ii) Investigative materials, notes, correspondence, videos and reports.
* * *
(iv) A record that includes information made confidential by law or court order.
* * *
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges.
If a document, on its face, relates to a criminal investigation, it is exempt pursuant to Section 708(b)(16)(ii) of the RTKL, even after the investigation has concluded. Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth.) (per curiam), appeal denied, 97 A.3d 745 (Pa. 2014). Under this exception, we have previously held that criminal history records, witness statements, incident reports and investigative files are exempt from disclosure. See id. at 1251.
Moreover, such documents are exempt under Section 9106(c)(4) of CHRIA, which states:
Investigative and treatment information shall not be disseminated to any department, agency or individual unless the department, agency or individual requesting the information is a criminal justice agency which requests the information in connection with its duties, and the request is based upon a name, fingerprints, modus operandi, genetic typing, voice print or other identifying characteristic.18 Pa. C.S. §9106(c)(4). Therefore, the requests for police reports or interview notes regarding police officers' conversations with the witnesses are exempt from disclosure, as are records documenting the dates on which the witnesses were interviewed and the lengths of those interviews, the witnesses' criminal histories, and witness statements.
Further, to the extent Requestor seeks copies of the witnesses' grand-jury testimony, Section 4549(b) of the Investigating Grand Jury Act provides:
Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the Commonwealth for use in the performance of their duties. The attorneys for the Commonwealth may with the approval of the supervising judge disclose matters occurring before the investigating grand jury including transcripts of testimony to local, State, other state or Federal law enforcement or investigating agencies to assist them in investigating crimes under their investigative jurisdiction. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court. All such persons shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret.42 Pa. C.S. §4549(b). Because no court order requiring disclosure of the witnesses' grand-jury testimony has been issued, the OAG is bound by the secrecy of the proceedings and did not err in ruling such transcripts, if any, exempt from disclosure.
C.
The remaining requests pertain to offers, demands and agreements for favorable treatment in exchange for the witnesses' testimony. In Coley, we addressed a convicted murderer's request for access to the immunity petition of a witness who testified against him. Id. at 696. We explained, "Presumably this document memorializes a transaction between the District Attorney and [the witness] by which [the witness] was immunized from prosecution in exchange for his cooperation in the investigation of Coley for murder." Id. at 697. Noting that the trial court ruled the document exempt under the RTKL's exception for criminal-investigative records, under CHRIA, we found that we were unable to assess the exception's applicability because the trial court did not describe the contents of the petition and it was not included in the record. Id. at 697-98. As such, we reversed the trial court's order to the extent it ruled the petition exempt and remanded for an explanation of the petition's contents, declining to assume that immunity agreements are per se "investigative materials" or always contain "investigative information." Id. at 698.
Similarly, here, the OAG has failed to describe the content of the subject immunity/plea agreements which are not included in the record. It also has failed to describe the contents of records containing offers or demands for favorable treatment. To determine whether these records fall within the exemptions claimed, descriptions are necessary.
At first blush, the rationale promoting access to immunity agreements would seem to extend to offers and demands for favorable treatment. While an unaccepted offer or demand may not memorialize "a transaction between the district attorney and police that immunizes an individual from prosecution," subjecting offers and demands to public scrutiny would further the public's interest in judging the performance of its public officials. See Coley, 77 A.3d at 699 (Pellegrini, P.J., concurring) (emphasis added). Conceivably, however, there may be other valid reasons for exempting such documents from exposure. For example, as we pointed out in Coley, such documents could be exempt under Section 708(b)(16)(iii) of the RTKL pertaining to documents which identify confidential sources or uncharged suspects to whom confidentiality has been promised. 65 P.S. §67.708(b)(16)(iii). --------
Accordingly, we reverse the Appeals Officer's decision insofar as it denied access to the requested immunity/plea agreements and offers/demands for favorable treatment for lack of specificity, and we remand the matter to the Appeals Officer to conduct an individualized review of these documents to determine, in the first instance, whether they are accessible under Coley or whether they are exempt from disclosure under the RTKL and/or CHRIA. In all other respects, we affirm the OAG's Final Determination denying Requestor's RTKL request.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 17th day of February, 2015, the Final Determination of the Office of Attorney General's Right-to-Know Appeals Officer dated March 31, 2014, in this matter is reversed insofar as it denied access to the requested immunity/plea agreements and offers/demands for favorable treatment for lack of specificity, and this matter is remanded to the Appeals Officer to determine whether those documents are accessible in accordance with the foregoing opinion. In all other respects, the Final Determination is affirmed.
Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge