IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tricia Mezzacappa :

:

v. : No. 1312 C.D. 2021

: Northampton County, :

Appellant : Submitted: August 5, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: April 6, 2023

Northampton County (County) appeals from the decision of the Court of
Common Pleas of Northampton County (Trial Court) affirming a final determination
by the Office of Open Records (Open Records), which directed the County to comply with a request for reco rds pursuant to the Right

- to

- Know Law (RTKL). 1 The
request called for mug shots taken of two named persons allegedly detained at the
Northampton County Prison (Prison). The County maintains that the records are
exempt from release by the Criminal Histor y Record Information Act (CHRIA), 18

Pa.C.S. §§ 9101

- 9183, as well as the RTKL itself, and that the Trial Court failed to
give proper consideration to the difficulties of fulfilling the request.
Patricia Mezzacappa (Request e r) submitted her request for t he two mug shots
on November 9, 2020. Reproduced Record (R.R

. ) at 8 a. Following a 30

- day

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

- .3104. One of Open Records’ duties under the RTKL is to assign appeals officers to review, when challenged, decisions by local agencies in response to RTKL requests and issue orders and opinions on thos e challenges. Allegheny C

n ty. Dep’t of Admin. Servs. v. A Second Chance, Inc. , 13 A.3d 1025, 1027 n.1 (Pa. Cmwlth. 2011).2

extension, 2 the County issued a denial of the request on December 15, 2020. Id.
Request e r then submitted a second RTKL request on December 28, 2020, asking for
mug shots of everyone admitted to the Prison from October 1, 2020

, until the date of
the request

. T hat request was also denied. See Mezzacappa v. Northampton County
(Pa. Cmwlth., No. 1229 C.D. 2021

, filed April 6 , 2023) ( Mezzacappa II )

. Request er appealed from both denials separately, Open Records granted both
appeals separately, and the County appealed from each determination separately to

the Trial Court. 3 The Trial Court then affirmed Open Records’ determinations with
separate orders, and the matters have consequently reached this Court as separate
cases. However, the underlying facts and legal issues are substantially the same

. In
Mezzacappa II

, we held that the requested mug shots are not exempt from release

under either CHRIA or the RTKL’s own exceptions ( provided in Section 708 of the

RTKL, 65 P.S. § 67.708), and must therefore be released. For the reasons set forth

in that opinion, we affirm the Trial Court’s order.

_____________ _______________ ELLEN CEISLER, Judge

2 Under certain circumstances, Section 902 (a)

- (b) permits an agency to extend its response time to a RTK request by 30 days with wr itten notice to the request e r. 65 P.S. § 67.902(a)

- (b).

3 For reasons not made clear in the record, the appeal from the determination involving the later request was placed on the Trial Court’s docket first.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tricia Mezzacappa :

:

v. : No. 1312 C.D. 2021

: Northampton County, :

Appellant :

O R D E R

AND NOW, this 6 th day of April, 20 23 , the order of the Court of Common
Pleas of Northampton County in the above

- captioned matter, dated October 26

, 2021, is hereby AFFIRMED.

____________________________ ELLE N CEISLER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tricia Mezzacappa :

:

v. : No. 1312 C.D. 2021

: Northampton County

, : Submitted: August 5, 2022

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY JUDGE McCULLOUGH FILED: April 6, 2023

Respectfully, I must dissent. T he Criminal History Record Information
Act’s ( CHRIA ) 1 definition of “ criminal history record information ” includes “mug

shots” because they are “identifiable descriptions.” CHRIA prohibits dissemination
of certain criminal history record information to “an individual or non

- criminal
justice agency.” 18 Pa

. C.S. § 9121. CHRIA defines “criminal history record
information” in the following way:

Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descr iptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom. The term does not include intelligence information, investigative information or treatment information, including m edical and

1 18 Pa. C.S. §§ 9101

- 9183

.PAM

- 2 psychological information, or information and records specified in section 9104 (relating to scope).

18 Pa. C.S. § 9102 (emphasis added)

.

The Pennsylvania Attorney General has published an extensive CHRIA
guide that outlines the policies and pr ocedures. See Commonwealth of Pennsylvania
Office of Attorney General, Criminal History Record Information Act Handbook
(7th ed. 2013) (hereinafter “CHRIA Handbook”). The Attorney General’s
interpretation is “entitled to great weight.” McDowell v. Good Chevrolet

- Cadillac,

Inc ., 154 A.2d 497 ( Pa. 1959) (citing Federal Deposit Ins. Corp. v. B oard of Finance

and Revenue , 84 A.2d 495 (Pa. 1951)). Tellingly, the CHRIA Handbook notes that
criminal history record information “ can be contained on a ‘rap sheet,’ photograph

‘ mug shot ,’ fingerprint cards, and reports,” and notes that “[t]his is not a complete

list but some of the mor e common places to find criminal history record

information.” Id . at 5 (emphasis added).

The Majority Opinion concludes that mugshots do not constitute
“identifiable descriptions” because the word “ description ” is most often used in

reference to written or spoken language. In my view , the Majority Opinion’s
interpretation is much too narrow and leads to unreasonable results. Pennsylvania ’ s Statutory Construction Act of 1972 directs that a court should presume that the
legislature did not intend a result that is “absurd, impossible of execution or
unreasonable.” 1 Pa. C.S. §§ 1922(1). In enacting CHRIA, the Pennsylvania
legislature sought, i nter alia , “to protect individual privacy and dignity.” See Taha
v. Bucks County Pennsylvania , No. 12

- 6867

, 2014 W L 695205

, at *8 (E.D. Pa. Feb.
21, 2014) (citing In re Pittsburgh Citizen Police Review B oard , 16 Pa. D. & C. 5th
435, 445 (Pa. Com. Pl. 2010)). To protect a written description of an individual but

not his photographic mugshot seems counterintuitive. Therefore, I believe thatPAM

- 3

interpreting CHRIA as including a written description but not a photograph is

unreasonable

. A person is identifiable by his photogra p h more easily than by his
written description. The inclusion of a photograph within the term description has
long been recognized in the law. As one Court noted, “[a] photograph is . . . a
pictured description.” Ligon v. Allen , 162 S.W. 536, 538 (Ky. C t. App. 1914).

In Taha v. Bucks C ounty Pennsylvania , 172 F. Supp. 3d 867, 871

- 72
(E.D. Pa. 2016)

, information regarding Daryoush Taha ’ s 1998 arrest and

incarceration was released t o the public on Bucks County’s Correctional Institution’s

Inmate Lookup Tool . The information included a color photograph of Taha from
the shoulders up, wearing a blue shirt and pictured against a gray background; sex;
date of birth; height; weight; race; hair color; eye color; citizenship; incarceration

location; date committed to incarceration; release date; case number for the crime
charged; and “DC, HARASS” listed under “Charge Information.” Id . at 869. The

District Court held that this information, including Taha’s mugshot, was “undoubtedly information collected by a criminal justice agency, arising from the
initiation of a criminal proceeding, and consisting of ‘ identifiable descriptions ’ and

‘ formal charges. ’ 18 Pa. C.S. § 9102. ” Id . at 872. Given the unambiguous definition
in CHRIA, Pennsylvania ’ s rules of s tatutory construction, relevant decisions by
Pennsylvania courts, and the Attorney General ’ s CHRIA Handbook, the District

Court found that public dissemination of the aforementioned information constituted
criminal record history information

, which violate d CHRIA. 2

2 A federal jury later found Bucks County’s conduct to be willful and in reckless disregard and in difference to the inmates’ privacy rights , and awarded $1,000 in damages to each of the 67,000 inmates whose information was improperly disseminated on the we bsite. The total jury award was $67 million.PAM

- 4 The Majority Opinion attempts to distinguish Taha in a footnote on the
grounds that here, the requester is only seeking mugshot s , whereas the information

released in Ta h a included more information. However, CHRIA does not only forbid

releas e of identifiable descriptions when it is accompanied by other information.

CHRIA’s language is plain; the presence of any of the enumerated data identifies
the material as criminal history record information. Taha , 172 F. Supp. 3d at 870
(rejecting county defendants’ argument that all of the listed items are necessary to
qualify the material as criminal history record information )

.

I also do not agree with the Majority Opinion’s conclusion that CHRIA
does not bar the County’s disseminati on of the mugshots. CHRIA penalizes criminal
justice agenc ies 3 for conduct such as illegally releasing criminal history record

3 Criminal justice agency is defined as:

Criminal justice agency

. Any court, including the minor judiciary, with criminal jurisdiction or any other governmental agency, or subunit thereof, created by statute o r by the State or Federal constitutions, specifically authorized to perform as its principal function the administration of criminal justice, and which allocates a substantial portion of its annual budget to such function. Criminal justice agencies includ e , but are not limited to: organized State and municipal police departments, local detention facilities, county, regional and State correctional facilities , probation agencies, district or prosecuting attorneys, parole boards, pardon boards, the facilities and administrative offices of the Department of Public Welfare that provide care, guidance and control to adjudicated delinquents, and such agencies or subunits thereof, as are declared by the Attorney General to be criminal justice agencies as determined by a review of applicable statutes and the State and Federal Constitutions or both.

18 Pa. C.S. § 910 2 (emphasis added).

In addition, CHRIA applies to “ to persons within this Commonwealth and to any agency of the Commonwealth or its political subdivisi ons which collects, maintains,PAM

- 5

information or releasing erroneous criminal history record information because such
disclosures could harm a person’s reputatio n. King v. Mansfield Univ ersity of
Pennsylvania , No. 1:15

- CV

- 00159, 2016 WL 6525177, at *6 (M.D. Pa. Nov. 3,
2016)

. In order for protected information to be disseminated to a requesting agency,
CHRIA requires that the agency adopt technical and physical safeguards including

an audit trail for collecting, maintaining, tracking

, and disseminating the

information. The agency must label the information to indicate the level of
sensitivity and confidence. 18 P a. C.S. § 9106. What this means to me is that th is
information cannot be disseminated outside of the confines and protections of
CHRIA. Secondary dissemination is prohibited. 18 Pa. C.S. § 9106 (d). In other

words, only criminal justice agencies may request
, receive

, and disseminate such
protected information under very strict regulations

.

Lastly, CHRIA penalizes agencies and political subdivision s for
releasing criminal history record information because such disclosures could harm a
person’s reputation. 18 Pa. C.S. § 9106 (g). See Ta ha

, King . Even i f the Majority
Opinion is correct, we must remand for the balancing test espoused by our Supreme

Court in Pennsylvania State Educat ion Association v. Department of Community
and Economic Development ( Office of Open Records ) , 148 A.3d 142, 158 ( Pa.
2016)

, so that the affected third parties (especially those who have been exonerated

or who are innocent ) can make the argument that their privacy interests far outweigh
the minimal public interest in disclosure of the mugshots. The core purpose of the
RTKL is to ensure transparency and the public understanding of the operations or
activities of the government. I can discern no particular public purpose or interest

that will be furthered by the wholesale dissemination of 800 mugshots. Neither

disseminates or receives criminal history record information. ” 18 Pa. C.S. § 9103 (emphasis added).PAM

- 6

co uld the Eleventh Circuit Court of Appeals in Karantsalis v. United States
Department of Justice

, 635 F.3d 497, 504 (11th Cir. 2011), which found that the
subject had a substantial privacy interest in his mugshot, which was being sought by

a r eporters ’ c ommittee. In describing this privacy interest, the Karantsalis C ourt

stated:

a booking photograph is a unique and powerful type of

photograph that raises personal privacy interests distinct from normal photographs. A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt. Further, a booking photograph captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties. . . This Court cannot identify any particular public interest that would be served by releasing the booking photographs.

635 F.3d at 504.

For these reasons, I respectfully dissent and would, instead, reverse the

trial court in this case.

________________________________ PATRICIA A. McCULLOUGH, Judge