• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
via facsimile
May 18, 2009Office of Open RecordsCommonwealth Keystone Building400 North St., 4th Floor Harrisburg, PA 17120-0225Dear Executive Director:
Pennsylvania Right to Know Law Appeal
This is an appeal under the Pennsylvania Right to Know Law (RTKL), 65 P.S. §67.101. I requesteddocuments from the Pennsylvania State Police. The Agency denied or partially denied my request for information. I am appealing the denial of my request, under section 1101 of the Law and provide thefollowing information in accordance with the Law. An identical copy has been submitted to the agencythat denied the request and all material provided by the agency has been enclosed.
Statement of Facts
1.
 
On April 14, I requested, via email, the following from the Pennsylvania State Police (PSP): “1)Any and all records on the Connellsville High School Stadium fire in 2004 2) Any and all recordson a fire in South Connellsville, Pennsylvania involving a mobile home on Dushane Avenue in2004.2.
 
On April 16, 2009, the PSP mailed two separate responses. The first invoked a 30-day extensionfor time to respond because “one or more requested records must be retrieved from a remotestorage location” and that my request was “undergoing necessary legal review to determinewhether any of the requested records are public records under the RTKL.” The second responseindicated that the PSP held no responsive records regarding request #1. I do not dispute thatdecision.3.
 
On May 8, 2009, the PSP mailed its final response, denying access to all records. The PSP citedfive broad reasons that the requested records were exempt from the disclosure under the RTKL.
Discussion
The records I have requested are public records as defined by the RTKL and I leave the agency to its burden of proof that the requested records are exempt from disclosure under the RTKL. It is clear and based on its response the PSP does not dispute, that the requested records public records, and the issue before us are the five reasons the agency has deemed it can legally withhold the requested records.It seems that the agency has grasped at straws, citing every possible avenue it can think of to withhold therequested records in order to circumvent the RTKL’s disclosure requirements – including citingarguments that the Office of Open Records has soundly rejected. It is clear from the agency’s response
that it made no attempt to even distinguish between exempt and non-exempt information in therequested records, but simply denied access to the entire record if it found that it contained anyexempt information
.I will answer each of the agency’s claims of exemption in detail below, but in general, insist that anyexempt information be redacted from the requested records and the non-exempt portions disclosed.
“The
 
McLaughlinRTKL AppealPage 2 of 4
agency may not deny access to the record if the information which is not subject to access is able tobe redacted,” (see 65 P.S. § 67.706, emphasis added)
. Where an agency has a statutory mandate, itsmandate is not discretionary and may be compelled.
1
 
Reason #1
The PSP says "(t)the records you request contain information which cannot be released due to the provision of the Juvenile Act, 42 PA.C.S.A, Section 6308." 
It seems clear from this response that the entirety of the responsive records does not contain informationconcerning juveniles. Information in a records that “contains” non-exempt information can clearly beeasily redacted, if it so easily identifiable. Even though the RTKL appears to conflict with the JuvenileAct in this instance, and thus rendering its disclosure requirements void, all provisions of the RTKL areseverable (65 P.S. § 67.3101.2) and there is no conflict with the RTKL’s requirement that exemptinformation be segregated and non-exempt portions of otherwise exempt records be disclosed (65 P.S. §67.706).Further, information concerning juvenile crimes may be made public if the child has reached a certain ageand is alleged or have found to have committed certain crimes, including arson (42 Pa.C.S.A. § 6308(b)).In this regard, I leave the agency to its burden to prove that these records are exempt from disclosure.
Reason #2
The PSP claim that "the disclosure of the requested record would be in violation of 18 Pa. C.S. § 9106(c)(4), which prohibits the disclosure of investigative information to all non-criminal justiceagencies." 
However, the chapter the PSP cites only applies to criminal justice agencies that "collects, maintains,disseminates or receives criminal history record information." The specific section used by the PSPS,(c)(4), only applies to information in the "central repository," which again, the act limits to only "criminalhistory record information."And while the act does protect "criminal history record information" from disclosure in certain instances,it specifically excludes "...intelligence information,
investigative information
or treatment information"from the definition of "criminal history record information." Therefore, the PSP cannot use this particular act to protect information from disclosure that is excluded from the very definition of information the actseeks to protect. Further, 18 Pa. C.S. § 9106 prohibits a criminal justice agency from even storinginvestigative information in the State Police's central repository
2
.1 
1
 
 Pennsylvania Dental Association v. Insurance Department,
512 Pa. 217, 227-228, 516 A.2d 647, 652 (1987)
2
In certain instances, the act permits the storage of investigative information in the central repository. However, the act doesnot permit the storage of information concerning juveniles, so none of the information the agency has claimed can be withheldon the basis of the CHIRA can legally even be contained in the information systems the CHIRA describes.
 
McLaughlinRTKL AppealPage 3 of 4
This claim must fail because the PSP cannot, and has not reasonably proven that all recordsresponsive to my request meet the definition of "criminal record history information." In fact, bytheir own admission in their response to my request, the contrary is true. They claim theinformation is investigative and the act they are using to circumvent disclosure specifically excludes"investigative information" from the definition of "criminal history record information."Therefore, this section in no way applies to the records I have requested but is a baseless, fumblingattempt to avoid public disclosure.
Ultimately, the argument is moot because the Criminal History Record Information Act, does not apply to juvenile records, which the PSP has claimed the responsive records are in Reason #1. (18 Pa.C.S.A. §9105).
Reason #3
 
 In this reason, the PSP claim that an "incident report is a criminal record exempt from disclosure" and relies on the State Police Operations Manual as evidence.
We can make short work of this claim, as it has already been decided by the Office of Open Records andthe Pennsylvania Courts: "In relying on previous case law defining incident reports, the OOR adopts thefinding reached in Tapco and Mines and finds that a police incident report is equivalent to a police blotter,and therefore public record, subject of course to any available exemptions for investigative material of thelaw enforcement agency." (see Gilliland v. PSP, OOR final determination, docket AP 2009-0073, p. 6).
Reason #4
The PSP claims "the requested record includes victim information." 
That may be true and I leave the PSP to its burden, however information about the victims has already been made public through numerous media reports and has been released publicly by the PSP.
In anycase, the PSP must redact the victim information from the responsive records
and disclose the non-exempt portions. (65 P.S. § 67.706).
Reason #5
 
The PSP says "(i)f the requested record is disclosed, it would reveal the institution, progress and result of a criminal investigation" and therefore is exempt from disclosure due to 65 P.S. 67.708(b)(16)(vi)(A).
The PSP failed to cite this section in full. It says records are exempt if they "reveal the institution, progress or result of a criminal investigation,
except the filing of criminal charges
." (emphasis added).
It is reasonable to conclude that at least some records that responsive to this request, which asked
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...