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 O pen Records’ (OOR) final determination that d enied access to records he sought

pursuant to the Right

- to

- Know Law (RTKL)

. 1 Requester sought a copy of his

sentencing order from t he 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

writte n, 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 acce ss, 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. S ee 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 de termined 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 pro bation order 3 is 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 a lso 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 vo id.

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 Ope n Records

, 993 A.2d 339 (Pa. Cmw lth

. 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 6 1.2 provid es , “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 “probati on order” and “sentencing order” interchangeably.4 In Jones , this Court explain ed the “ broad l anguage of this regulation,”

encompass ed 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, t he 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.

,
Affidavi t at 3. Th us , u nder 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

pro priety 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)

. T his Court previously

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

A. 3 d 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 dep end 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 determinatio n 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 Philad elphia when he alleged lack of an alternate remedy to receive a copy of his sentencing order. Faulk v. Phila

. Common Pleas Court s , 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 Parol e, : 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