IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose Miguel Perez, :

Appellant :

:

v. : No. 394 C.D. 2017

: Submitted: June 16, 2017

Craig W. Stedman :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: July 12, 2017

Jose Miguel Perez (Perez) appeals pro se an order of the Court of 

Common Pleas of Lancaster County (trial court) which denied Perez’s appeal from 

the District Attorney of Lancaster County (District Attorney) Craig W. Stedman’s

denial of his request filed pursuant to the Right-to-Know-Law (RTKL)1for tapes 

and tape-recorded conversations in connection with two criminal cases brought 

against Perez in 1991. We affirm.

On October 3, 2016, Perez, an inmate at the State Correctional 

Institution at Frackville, filed a RTKL request with the District Attorney seeking 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2

copies of “[t]apes, tape recorded conversations in connection with Commonwealth 

v. Jose Miguel Perez, No. 1533 and 1497 of 1991.” (Exhibit A to Certified Record 

(C.R.) Item 1, RTKL Appeal.) By letter dated October 7, 2016, the District 

Attorney’s Open Records Officer denied the request because the requested records

were exempt from disclosure as criminal investigative records and information 

under Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16), and under Section 

9106(c)(4) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. 

§ 9106(c)(4).

Perez filed an appeal with the District Attorney’s Open Records 

Appeals Officer2(Appeals Officer) claiming the requested records were not 

exempt from disclosure because they were used by the District Attorney at Perez’s 

criminal trial over 25 years ago and were made part of the criminal record. 

Following review of the documentation related to Perez’s original request and his 

appeal, the Appeals Officer denied the appeal. Perez then appealed to the trial 

court. By order dated December 8, 2016, the trial court affirmed the Appeals

Officer’s determination.

 

2

Section 503(a)(2) of the RTKL, 65 P.S. § 67.503(a)(2), provides that the Office of Open 

Records shall designate an appeals officer for all local agencies, with the exception that:

The district attorney of a county shall designate one or more 

appeals officers to hear appeals under Chapter 11 relating to access 

to criminal investigative records in possession of a local agency of 

that county. The appeals officer designated by the district attorney 

shall determine if the record requested is a criminal investigative 

record.

Section 503(d)(2) of the RTKL, 65 P.S. § 67.503(d)(2).
3

On appeal to this Court,3Perez argues that the trial court erred and 

abused its discretion in upholding the Appeals Officer’s determination that the 

requested records were exempt from disclosure. Perez argues that the District 

Attorney waived the investigative exception under the RTKL and CHRIA when it 

offered the requested records as evidence at his criminal trial. We disagree.

Section 102 of the RTKL defines a “public record” as:

A record, including a financial record, of a 

Commonwealth or local agency that:

(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.

65 P.S. § 67.102. Section 708(b) of the RTKL sets forth the exceptions from the 

definition of “public record” and provides, in pertinent part, as follows:

(b) Exceptions.--Except as provided in subsections (c) 

and (d), the following are exempt from access by a 

requester under this act:

 

3 Because there are no facts in dispute, our review is limited to determining whether the 

trial court committed an error of law, violated any constitutional rights, or abused its discretion. 

Barros v. Martin, 92 A.3d 1243, 1247, n.5 (Pa. Cmwlth. 2014) (citing SWB Yankees LLC v. 

Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, 45 A.3d 1029 (Pa. 2012)). “The 

scope of review for a question under the [RTKL] is plenary.” Wintermantel, 999 A.2d at 674, 

n.2 (quoting Stein v. Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)).
4

* * *

(16) A record of an agency relating to or resulting 

in a criminal investigation, including:

* * *

(ii) Investigative materials, notes, 

correspondence, videos and reports.

65 P.S. § 67.708(b)(16)(ii). Therefore, “if a record, on its face, relates to a 

criminal investigation, it is exempt under the RTKL pursuant to Section 

708(b)(16)(ii).” Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth. 2014) 

(citations omitted). As this Court has repeatedly held, criminal investigative 

records remain exempt from disclosure even after an investigation is completed. 

Id. (citing Sullivan v. City of Pittsburgh, Department of Public Safety, 561 A.2d 

863, 865 (Pa. Cmwlth. 1989)).

In addition, a record is not considered a public record under the RTKL 

if it is exempt under any other State law, such as CHRIA that also precludes the 

release of records. See Section 102 of the RTKL, 65 P.S. § 67.102; see also 

Barros, 92 A.3d at 1250 (citing Coley v. Philadelphia District Attorney’s Office, 

77 A.3d 694, 697 (Pa. Cmwlth. 2013)). Section 9106(c)(4) of CHRIA provides 

that “[i]nvestigative 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. . . .” 18 Pa. C.S. § 9106(c)(4). CHRIA 

defines the term “investigative information” as “[i]nformation assembled as a 

result of the performance of any inquiry, formal or informal, into a criminal 
5

incident or an allegation of criminal wrongdoing and may include modus operandi 

information.” 18 Pa. C.S. § 9102.

Perez’s own request makes clear that the requested records are 

investigative materials or information as he specifically states that he is seeking 

“[t]apes, tape recorded conversations in connection with”

4

two criminal cases 

brought against him, making the requested records exempt from disclosure under 

both the RTKL and CHRIA. Nonetheless, Perez contends that the investigative 

exceptions under the RTKL and CHRIA were waived because the tapes were 

offered into evidence.

In general, a law enforcement agency cannot waive an exemption 

under the RTKL when disclosure of the requested material is expressly prohibited 

by state or federal law, as is the case here. See Section 506(c) of the RTKL, 65 

P.S. § 67.506(c); Barros, 92 A.3d at 1251 (citations omitted). Specifically, as to

whether the investigative exemption is waived once those records are introduced at 

trial, in Coley, we cited with approval our unpublished opinion in Arroyo v. 

District Attorney of Lancaster, (Pa. Cmwlth., No. 1624 C.D. 2010, filed June 29, 

2011) that addressed that issue. In Arroyo, the requester sought the release of

forensic slides and hair samples used by the district attorney as evidence in his 

criminal trial. The district attorney’s office denied the request because the records 

sought were investigative materials. We rejected the requester’s argument that 

because “the Commonwealth introduced the slides and hair samples into evidence 

 

4

(Exhibit A to C.R. Item 1, RTKL Appeal) (emphasis added).
6

in the trial against him, it waives any claim that the materials are exempt from the 

[RTKL].” Id., slip opinion at 5. We rejected that argument because those records 

were “assembled as a result of the performance of an inquiry . . . into a criminal 

incident.” Id., slip opinion at 9. In effect, we held that an exempt record did not 

change its character just because it was offered in some other proceeding. If the 

records from that proceeding are public, then the requestor has to obtain access 

from the custodian of the records of that proceeding. In this case, Perez can seek 

access to the requested records by obtaining the trial record or, more appropriately,

from his attorney who would have been provided copies of the tapes as part of the 

pretrial exchange of evidence.5

Accordingly, because the tapes contained in the District Attorney’s

investigative file remain exempt from disclosure as criminal investigative records 

and investigative information pursuant to the RTKL and CHRIA, even though they 

were offered into evidence, the order of the trial court is affirmed.

 

DAN PELLEGRINI, Senior Judge

 

5 While not part of the record before the trial court, the District Attorney submitted 

excerpts from the transcript of Perez’s criminal trial attached to his brief filed with this Court. 

These excerpts demonstrate that six audio cassette recordings of conversations between Perez 

and a police informant were entered into evidence and that copies of all six tapes were provided 

to Perez’s defense attorney.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose Miguel Perez, :

Appellant :

:

v. : No. 394 C.D. 2017

:

Craig W. Stedman :

O R D E R

AND NOW, this 12th day of July, 2017, the order of the Court of 

Common Pleas of Lancaster County in the above-captioned matter is affirmed.

 

DAN PELLEGRINI, Senior Judge