via facsimile May 18, 2009 Office of Open Records Commonwealth Keystone Building 400 North St., 4th Floor Harrisburg, PA 17120-0225 Dear 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 requested documents 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 the following information in accordance with the Law. An identical copy has been submitted to the agency that 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 records on a fire in South Connellsville, Pennsylvania involving a mobile home on Dushane Avenue in 2004.

2. On April 16, 2009, the PSP mailed two separate responses. The first invoked a 30-day extension for time to respond because “one or more requested records must be retrieved from a remote storage location” and that my request was “undergoing necessary legal review to determine whether any of the requested records are public records under the RTKL.” The second response indicated that the PSP held no responsive records regarding request #1. I do not dispute that decision.

3. On May 8, 2009, the PSP mailed its final response, denying access to all records. The PSP cited five 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 the requested records in order to circumvent the RTKL’s disclosure requirements – including citing arguments 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 the requested records, but simply denied access to the entire record if it found that it contained any exempt information. I will answer each of the agency’s claims of exemption in detail below, but in general, insist that any exempt information be redacted from the requested records and the non-exempt portions disclosed. “The

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agency may not deny access to the record if the information which is not subject to access is able to be redacted,” (see 65 P.S. § 67.706, emphasis added). Where an agency has a statutory mandate, its mandate 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 information concerning juveniles. Information in a records that “contains” non-exempt information can clearly be easily redacted, if it so easily identifiable. Even though the RTKL appears to conflict with the Juvenile Act in this instance, and thus rendering its disclosure requirements void, all provisions of the RTKL are severable (65 P.S. § 67.3101.2) and there is no conflict with the RTKL’s requirement that exempt information 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 age and 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 justice agencies." 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 "criminal history 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 act seeks to protect. Further, 18 Pa. C.S. § 9106 prohibits a criminal justice agency from even storing investigative information in the State Police's central repository2.1 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 does not permit the storage of information concerning juveniles, so none of the information the agency has claimed can be withheld on the basis of the CHIRA can legally even be contained in the information systems the CHIRA describes.

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This claim must fail because the PSP cannot, and has not reasonably proven that all records responsive to my request meet the definition of "criminal record history information." In fact, by their own admission in their response to my request, the contrary is true. They claim the information 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, fumbling attempt 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 and the Pennsylvania Courts: "In relying on previous case law defining incident reports, the OOR adopts the finding 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 the law 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 any case, 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

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for "(a)ny and all records" pertain to the "filing of criminal charges" and therefore must be disclosed. It is unreasonable to conclude that ever responsive record is an “investigatory” record. This is not a blanket exemption that the PSP can use to withhold all responsive records, as it claims.

Conclusion In short, the agency may have legitimate exemptions to the RTKL public disclosure requirements and again, I leave the agency to its burden to prove the claimed exemptions. However, in this bungling display of baseless legal claims, it is difficult if not impossible for me to determine exactly what records the agency possesses that are responsive to my request that may be legitimately withheld. It is reasonable that portions of the requested records will be exempt under the statutory provisions the PSP has cited in reasons #1, #4 and #5. The PSP’s claims in reasons #2 and #3 are completely baseless and without merit and cannot be used to withhold the requested records from disclosure. In the end, even if portions of the requested records are proven to be covered by the PSP’s reasons #1, #4 and #5 – the agency still must release the portions of its records that are not covered by any exemption. Sincerely, /s/ Justin McLaughlin