IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William E. Webster III, :

Petitioner :

: No. 1248 C.D. 2018

v. :

: Submitted: February 1, 2019

Lehigh County Adult Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: March 26, 2019

William E. Webster III (Requester) petitions pro se for review of the July 

16, 2018 final determination of the Office of Open Records (OOR) that dismissed his 

appeal under the Right-to-Know Law (RTKL).

1 The OOR concluded that the Lehigh 

County Adult Probation and Parole Department (Probation Department) was a judicial 

agency over which it lacks jurisdiction. 

On February 9, 2018, Requester, an inmate at the State Correctional 

Institution at Somerset, filed a request with the Probation Department seeking “a copy

of the Presentence Investigation [and Report (PSI)2] pertaining to CP-2085-2006.” 

 

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

2 Under Pennsylvania law, “[b]efore sentencing any defendant to one year or longer, a [PSI] 

shall be made, unless the sentence is death or a mandatory sentence to life imprisonment, or unless 
2

(Certified Record (C.R.), Item 1 at 2.)3 The Probation Department did not respond; the 

request was therefore deemed denied as a matter of law;4and Requester filed an appeal 

to the OOR, which dismissed the appeal on July 16, 2018. Requester then filed a 

petition for review in this Court, which was docketed as being filed on September 13, 

2018. Importantly, the petition for review is self-dated September 4, 2018, and 

contains a handwritten date of September 4, 2018, on the proof of service. See Petition 

for Review, at 13, Proof of Service. 

Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1502 provides that 

a petition for review “shall be the exclusive procedure for judicial review of a 

determination of a government unit.” Pa.R.A.P. 1502. A petition for review must be 

 

the court specifically orders to the contrary.” Section 9731 of the Sentencing Code, 42 Pa.C.S. §9731. 

The PSI “shall be available to the court for the purpose of assisting it in determining the sentence.” 

Section 9731(1) of the Sentencing Code, 42 Pa.C.S. §9731(1); see Pa.R.Crim.P. 702(A). Specifically, 

a PSI is comprised of “a summary of the circumstances attending the commission of the crime, the 

history of delinquency or criminality, physical and mental condition, family situation and 

background, economic status, education, occupation and personal habits of the defendant, any history 

of drug or alcohol abuse or addiction and any other matters that the person preparing the report deems 

relevant or that the court directs be included.” Section 9732 of the Sentencing Code, 42 Pa.C.S. 

§9732.

3 Originally, Requester sent a letter to the Lehigh County Clerk of Judicial Records, Criminal 

Division (Clerk), seeking a copy of his PSI. By correspondence dated December 11, 2017, the Clerk 

informed Requester that “the matter is not under the jurisdiction of the Clerk of Judicial Records” and 

advised him to contact the Probation Department. (Reproduced Record (R.R.) at 1a.) Although 

Requester challenges the propriety of the Clerk’s conduct in his appellate brief, his appeal purportedly 

lies from the final determination of the OOR with regard to his February 9, 2018 RTKL request with 

the Probation Department. Therefore, the actions of the Clerk are not part of this appeal and cannot 

be challenged by Requester. 

4

See Sections 901, 1101(a) of the RTKL, 65 P.S. §§67.901 (“If the agency fails to send the 

response within five business days of receipt of the written request for access, the written request for 

access shall be deemed denied.”), 67.1101(a) (“If a written request for access to a record is denied or 

deemed denied, the requester may file an appeal with the [OOR].”).
3

filed within 30 days after the entry of the order that the petitioner seeks to appeal. 

Pa.R.A.P. 1512(a); Riverlife Task Force v. Planning Commission of City of Pittsburgh, 

966 A.2d 551, 557 (Pa. 2009). While the Probation Department has not asserted that 

the petition for review was filed untimely, failure to timely appeal is a jurisdictional 

defect that cannot be waived and may be raised sua sponte by this Court. Day v. Civil 

Service Commission of Borough of Carlisle, 931 A.2d 646, 651-52 (Pa. 2007).

Here, in his petition for review, Requester states that he is appealing the 

July 16, 2018 final determination of the OOR and seeks to invoke our appellate 

jurisdiction. The deadline for filing a petition for review from the OOR’s final 

determination was August 15, 2018. However, Requester’s petition for review and 

accompanying proof of service are self-dated September 4, 2018. Although Requester 

is incarcerated and proceeding pro se, there is nothing in the record to plausibly suggest 

that Requester handed his petition for review to prison authorities for mailing before

August 15, 2018, such that he could benefit from the prisoner mailbox rule.5 It is 

Requester who “bears the burden of proving that he [] in fact delivered the appeal 

within the appropriate time period.” Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 

1997). Requester has not provided any reasons explaining the untimeliness of his 

petition for review. As such, this Court has no basis upon which to doubt that 

September 4, 2018, was the earliest date on which the petition for review can be 

deemed to have been filed, which is well beyond the 30-day deadline for perfecting an 

appeal. See Smith v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 

724 C.D. 2016, filed March 3, 2017) (unreported), slip op. at 6 & n.3 (concluding that 

 

5 Pa.R.A.P. 121(a) provides that a pro se filing by an incarcerated individual is deemed filed 

on the date it is delivered to prison authorities for mailing, “as evidenced by a properly executed 

prisoner cash slip or other reasonably verifiable evidence of the date that the prisoner deposited the 

pro se filing with the prison authorities.” Id.
4

the prisoner mailbox rule could not excuse an untimely appeal where the final date for 

filing was February 24, 2016, and a copy of the envelope addressed to the 

administrative agency included a handwritten note that the appeal was mailed on 

February 28, 2016).6 Ultimately, Requester’s failure to file a timely petition for review 

divests this Court of jurisdiction to review the OOR’s final determination.

7

 

6

Smith is an unreported panel decision, which, under our Internal Operating Procedures, may 

be cited for its persuasive value. Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code §69.414(a).

7

In any event, we note that the OOR does not have jurisdiction to hear appeals that are taken 

from a judicial agency, Frazier v. Philadelphia County Office of Prothonotary, 58 A.3d 858, 859 (Pa. 

Cmwlth. 2012), and the Probation Department is part of the Unified Judicial System and its officers 

are employees of the Unified Judicial System. Gruzinski v. Department of Public Welfare, 731 A.2d 

246, 249 n.5 (Pa. Cmwlth. 1999); see Ward v. Potteiger, 142 A.3d 139, 144 n.8 (Pa. Cmwlth. 2016);

L.J.S. v. State Ethics Commission, 744 A.2d 798, 802 (Pa. Cmwlth. 2000); Hyde v. Northumberland 

County Probation Department (M.D. Pa., No. 4:13-CV-02394, filed September 24, 2013) 

(unreported), slip op. at __, 2013 U.S. Dist. LEXIS 156347, at *11. Hence, records in the possession 

of the Probation Department are records of a judicial agency and, as such, the OOR lacks jurisdiction 

over the matter. See Court of Common Pleas of Lackawanna County v. Office of Open Records, 2 

A.3d 810, 813 (Pa. Cmwlth. 2010).

Even if OOR possessed jurisdiction, the requested record is not subject to disclosure under 

the RTKL. Under the RTKL, a judicial agency is only required to disclose “financial records.” Court 

of Common Pleas of Lackawanna County, 2 A.3d at 813. Here, Requester requests a PSI, which is a 

document that does not constitute a financial record but, instead, relates to his criminal case. See 

Faulk v. Philadelphia Clerk of Courts, 116 A.3d 1183 (Pa. Cmwlth. 2015). Moreover, assuming, 

arguendo, that the PSI were a financial record, and the Probation Department had access to it, Section 

305(a)(3) of the RTKL dictates that a document cannot be released when “the record is exempt from 

disclosure under any other . . . State law or regulation[.]” 65 P.S. §67.305(a)(3). Section 9733 of the 

Sentencing Code and Pa.R.Crim.P. 702(a)(3) prohibit the disclosure of a PSI to an individual, 

irrespective of whether the individual was the defendant in the criminal case or a member of the 

public. 42 Pa.C.S. § 9733 (“The [PSI] shall not be a public record.”); Pa.R.Crim.P. 702(3)(A) (“All 

[PSIs] shall be confidential, and not of public record.”); see Cunningham v. Department of 

Corrections, 990 A.2d 1205, 1208 (Pa. Cmwlth. 2010); Commonwealth v. Kessinger, 441 A.2d 758, 

759-60 (Pa. Super. 1982) (“The record reveals that counsel for [the defendant] was permitted full 

access to the report as required by the Rules of Criminal Procedure and the ABA [American Bar 
5

Accordingly, we dismiss the appeal.

________________________________

PATRICIA A. McCULLOUGH, Judge

 

Association] Standards. Thus, we reject [the defendant’s] argument that the trial court abused its 

discretion in disallowing him personally to review the report[.]”).

Moreover, contrary to his contention, Requester did not have his due process rights violated 

as a result of being denied access to the PSI. Where, as here, a record is deemed privileged or 

confidential pursuant to a state law or regulation, and is therefore exempt from the definition of 

“public records” subject to disclosure under Section 305(a)(3), the denial of access “does not 

implicate any due process rights because . . . the RTKL does not create any property right in the 

records that [r]equester sought.” Vu v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., 

No. 819 C.D. 2018, filed December 13, 2018) (unreported), slip op. at 7-8; see Prison Legal News v. 

Office of Open Records, 992 A.2d 942, 947 (Pa. Cmwlth. 2010); see also Wiley v. Woods, 141 A.2d 

844, 849-51 (Pa. 1958).

Given the confidential nature of the PSI, the RTKL may not be the most suitable vehicle for 

Requester to obtain a copy of his PSI. Nonetheless, it appears that Requester may have a remedy in 

that he may petition the sentencing judge for a copy of his PSI pursuant to Pa.R.Crim.P. 703(D). See 

id. (“On the order of the sentencing judge, a [PSI] may be made available to any [] person or agency 

having a legitimate professional interest in the disposition of the case.”).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William E. Webster III, :

Petitioner :

: No. 1248 C.D. 2018

v. :

:

Lehigh County Adult Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 26th day of March, 2019, the petition for review filed 

by William E. Webster III is dismissed as untimely. 

________________________________

PATRICIA A. McCULLOUGH, Judge