IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angelo Lenell Davis, :

Petitioner :

:

v. : No. 944 C.D. 2015

: Submitted: April 22, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: June 3, 2016

Angelo Lenell Davis (Requester) petitions for review from the Office 

of Open Records’ (OOR) final determination that denied access to records he sought 

pursuant to the Right-to-Know Law (RTKL).

1 Requester sought a copy of his 

sentencing order from the Pennsylvania Board of Probation and Parole (Board). 

The Board denied access under its confidentiality regulation that applies to parole 

files, 37 Pa. Code §61.2, as well as the investigative exceptions under the RTKL. 

Upon review, we affirm.

I. Background

Requester submitted a request to the Board seeking: “a copy of the 

written, signed, and dated ‘Probation Order’ issued by the Dauphin County Court 

of Common Pleas Judge Lawrence F. Clark, Jr. issued on January 30, 2007, Case 

 

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

No. 3275-CF-2006 July 7, 2006.” Certified Record (C.R.) at Item No. 1 (Request). 

The Board denied access, asserting the record was protected by its confidentiality 

regulation, 37 Pa. Code §61.2, by the criminal and noncriminal investigative 

exceptions under the RTKL, and by the Criminal History Record Information Act,

18 Pa. C.S. §§9101–9183. However, the Board directed Requester to request a 

copy of the order directly from the Dauphin County Court of Common Pleas 

(Sentencing Court). Requester appealed to OOR. 

On appeal to OOR, the Board submitted a position statement 

describing its operations and the record requested. The Board reasserted its denial 

grounds and submitted an affidavit of its Deputy Open Records Officer (Affidavit). 

In the Affidavit, the affiant attested the requested record did not constitute a 

“statement of the reasons for actions by the Board granting or refusing a parole.” 

C.R. at Item No. 3, Affidavit at 3.

OOR issued a final determination upholding the Board’s denial of 

access. See Davis v. Pa. Bd. of Prob. & Parole, OOR Dkt., No. AP 2015-0479 

(issued May 4, 2015). OOR reasoned the Board established the probation order is 

maintained in its parole file, which is confidential under the Board’s regulation, 37 

Pa. Code §61.2. OOR determined the regulation is sufficiently broad to encompass 

the entire contents of the parole file, other than the Board’s statement of reasons 

for granting or refusing parole. However, OOR noted its determination did not 

preclude Requester from obtaining the probation order from other sources.

Requester then filed a petition for review to this Court.
3

II. Discussion

On appeal,2 Requester argues the probation order3is a public record. 

He contends the clerk of courts for the Sentencing Court is required to maintain 

such orders in the criminal case file. He also claims he requested the record from 

the Sentencing Court, which responded that “[a] sentencing order was not filed.” 

Pet. for Review at 2, Ex. 1. As a consequence, he asserts his sentence is void.

Under the RTKL, records in possession of a Commonwealth agency 

are presumed to be public unless they are: (1) exempt under Section 708 of the 

RTKL; (2) “protected by a privilege; or[,] (3) ... exempt from disclosure under

any other Federal or State law or regulation or judicial order or decree.” Section 

305 of the RTKL, 65 P.S. §67.305 (emphasis added). When the ground for 

exemption is a state law or regulation, the agency bears the burden of proving the 

regulation applies. Jones v. Office of Open Records, 993 A.2d 339 (Pa. Cmwlth. 

2010) (construing 37 Pa. Code §61.2 to bar access to parole recommendations). 

Here, the Board argues the record is exempt under its regulation 

regarding confidentiality of parole files, 37 Pa. Code §61.2. Section 61.2 provides,

“records, reports and other written things and information ... touching on matters 

concerning a probationer or parolee are private, confidential and privileged ....” Id.

The only exception is “a brief statement of the reasons for actions by the Board 

granting or refusing a parole,” which will be open to public inspection. Id. 

 

2

In a RTKL appeal involving a Commonwealth agency, this Court has the discretion to 

rely upon the record created below or to create its own. Dep’t of Labor & Indus. v. Heltzel, 90 

A.3d 823 (Pa. Cmwlth. 2014) (en banc).

3 Requester uses the terms “probation order” and “sentencing order” interchangeably.
4

In Jones, this Court explained the “broad language of this regulation,” 

encompassed any records in the Board’s custody concerning a probationer or 

parolee. Id. at 342. Further, we noted, “we [were] not aware of any authority that 

allows a sentencing judge or a prosecuting attorney to waive the Board’s 

confidentiality provisions.” Id. at 343.

We defer to the Board in interpreting its own regulations as it has

expertise in their application. Id. Here, the Board explained the record requested 

is one of the materials it gathers in fulfilling its role, and it is a record that touches 

on matters concerning Requester, a probationer or parolee. C.R. at Item No. 3 

(Position Statement). The Affidavit supports these facts. C.R. at Item No. 3 

(Affidavit). It also confirms that the probation order is not excepted from the 

regulation as a written statement of the reasons for granting or refusing parole. Id., 

Affidavit at 3. Thus, under the broad language of the regulation, the probation order 

is protected.

Requester also argues the lack of a sentencing order means he is being 

held without authority. Pet. for Review at 2, Ex. 1. This argument, questioning the 

propriety of confinement, is beyond the scope of an appeal under the RTKL. Faulk 

v. Phila. Clerk of Courts, 116 A.3d 1183 (Pa. Cmwlth. 2015). This Court previously 

rejected similar arguments on similar facts. See id.; Sturgis v. Dep’t of Corr., 96 

A.3d 445 (Pa. Cmwlth. 2014). Sentencing orders, which may qualify as court 

records, may be accessible outside the RTKL. Faulk. 
5

We also reject Requester’s claim that he is entitled to the record as it 

concerns him. The public status of a record does not depend on the identity of a 

requester, which is irrelevant. Padgett v. Pa. State Police, 73 A.3d 644 (Pa. Cmwlth. 

2013); Coulter v. Pa. Bd. of Prob. & Parole, 48 A.3d 516 (Pa. Cmwlth. 2012).

III. Conclusion

For the foregoing reasons, the final determination of OOR is affirmed. 

However, we emphasize that Requester may have alternate access to the record. 

See Faulk.

4

 

ROBERT SIMPSON, Judge

 

4

In a proceeding related to our disposition of the RTKL appeal in Faulk v. Philadelphia 

Clerk of Courts, 116 A.3d 1183 (Pa. Cmwlth. 2015), our Supreme Court allowed Faulk to file 

original process seeking a writ of habeas corpus and mandamus relief from the Court of 

Common Pleas of Philadelphia when he alleged lack of an alternate remedy to receive a copy of 

his sentencing order. Faulk v. Phila. Common Pleas Courts, 127 A.3d 1288 (Pa. 2015) (per curiam

order).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angelo Lenell Davis, :

Petitioner :

:

v. : No. 944 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 3

rd day June, 2016, the final determination of the 

Office of Open Records is AFFIRMED.

 

ROBERT SIMPSON, Judge