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 Pe rez (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) 1 for tapes

and tape

- recorded conversations in connection with two criminal cas es 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).

P erez filed an appeal with the District Attorney’s Open Records

Appeals Officer 2 (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 c ourt affirmed the Appeal s

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 relatin g 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 RTK L, 65 P.S. § 67.503(d)(2).3 On appeal to this Court, 3 Perez argues that the trial court erred a nd

abused its discretion in uphold ing the Appeal s Officer’s determination that the

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

Attorney waived the investigative exception under the R TKL 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, includin g 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 pri vilege.

65 P.S. § 67.102. Section 708 (b) of the RTKL sets forth the excep tion s 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, o ur 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 Ste in 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 consider ed 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 A ttorney’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

requ esting 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 performan ce of any inquiry, formal or informal, into a criminal5

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 materia ls 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. Nonetheles s

, Perez contends that the investigative

exception s under the RTKL and CHRIA were waived because the tapes were

offered into eviden ce.

In general, a law enf

orcement 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 introduce d 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

becaus e “ 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 ex empt from the

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

were “assembled as a result of th e 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 p roceeding 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 wo uld have been provided copies of the tapes as part of the

pretrial exchange of evidence. 5

A ccordingly

, because the tapes contained in the District Attorney’s

investigative file remain exempt from disclosure as criminal investigative records

and investiga tive information pursuant to the RTKL and CHRIA

, even though t hey

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 COMMONW EALTH COURT OF PENNSYLVANIA

Jose Miguel Perez, : Appellant :

:

v. : No. 394 C.D. 2017

: Craig W. Stedman :

O R D E R

AND NOW, this 12 th 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