            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Rojas,                                 :
                       Appellant             :
                                             :
      v.                                     : No. 1451 C.D. 2019
                                             : SUBMITTED: April 24, 2020
Lehigh County Office of the                  :
District Attorney                            :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                FILED: July 16, 2020

      Peter Rojas (Rojas), pro se, appeals from an order of the Court of Common
Pleas of Lehigh County (trial court). The trial court denied and dismissed Rojas’s
appeal from a decision of the Right to Know Appeals Officer (Appeals Officer) for
the Lehigh County District Attorney’s Office (DA) upholding the DA’s denial of
Rojas’s request for information under the Right-to-Know Law (RTKL).1 The DA
determined the requested information was exempt from disclosure under Section
708(b)(16) and (17) of the RTKL, 65 P.S. § 67.708(b)(16) (records “relating to or
resulting in a criminal investigation”) and (17) (records “relating to a noncriminal
investigation”), and was also prohibited from disclosure under Section 9106(c)(4) of
the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. § 9106(c)(4)
(precluding disclosure of “investigative and treatment information” from criminal


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104.
justice system records, except to “a criminal justice agency which requests the
information in connection with its duties . . .”). After thorough review, we affirm
the trial court’s order.

                                        I. Background
       Rojas is an inmate at a state correctional institution. In March 2019, he
submitted an RTKL request to the DA seeking a video recording made by the
Allentown Police Department (Police) in May 2009. Original Record (O.R.), Item
#4, Ex. A-1. The video purportedly showed a Police interrogation of Rojas in which
he gave a confession that was later introduced in court at his criminal trial. The DA,
through its Right to Know Officer, denied the request because it sought investigative
information that was exempt from disclosure under the RTKL and prohibited from
disclosure under CHRIA. O.R., Item #4, Ex. C-1.
       Rojas appealed from the DA’s determination. O.R., Item #4, Ex. A-2. The
Appeals Officer2 upheld the DA’s denial of the information request. See O.R., Item
#15 (trial court’s opinion pursuant to Pa. R.A.P. 1925(a)).3
       Rojas next appealed the Appeals Officer’s decision to the trial court. O.R.,
Item #4. After reviewing the record, the trial court issued an order in August 2019
denying and dismissing Rojas’s appeal.4 O.R., Item #10. In a footnote to its order,

       2
         Rojas initially directed his appeal to the Office of Open Records (OOR), which transferred
the appeal to the Right to Know Appeals Officer (Appeals Officer) for the Lehigh County District
Attorney’s Office (DA). See Original Record (O.R.), Item #4, Ex. A-4. Neither party challenges
the propriety of the OOR’s transfer of that appeal.

       3
         The Appeals Officer’s decision itself is not in the record. However, neither party
challenges the trial court’s statement that the Appeals Officer denied and dismissed Rojas’s appeal.

       4
         Rojas alleges the trial court initially scheduled a status conference for October 2019, but
then, without waiting for the scheduled conference, issued an order denying and dismissing Rojas’s



                                                 2
the trial court opined that the requested information was exempt from disclosure
under the RTKL, 65 P.S. § 67.708(b)(16)(ii), as a custodial interrogation related to
a criminal investigation. The trial court found: “Police or other law enforcement
documentation of information received by alleged suspects is considered criminal
investigative information exempted from disclosure under the RTKL.” O.R., Item
#10 (citing Pa. State Police v. Grove, 161 A.3d 877, 392-893 (Pa. 2017)). “Such
records remain exempt from disclosure even after the investigation is completed.”
Id. (citing Burros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth. 2014)).
       In addition, the trial court concluded the requested information was prohibited
from disclosure under CHRIA. The trial court found the police interrogation video
constituted investigative information.              See id. (citing 18 Pa. C.S. § 9102
(investigative information is material obtained as a result of any inquiry regarding a
criminal incident or allegation of criminal wrongdoing)). Noting that Rojas is not a
member of a criminal justice agency, the trial court determined the interrogation
video was precluded from release to him under the CHRIA, and as a result, was also
exempted from disclosure under Section 305(a)(3) of the RTKL, 65 P.S. § 67.305(a)(3).
O.R., Item #10.
       Rojas then appealed to this Court.
                                           II. Issues
       On appeal,5 Rojas asserts several arguments, which we reorganize and
paraphrase for clarity as follows:

appeal. Although the trial court docket does not reflect the scheduling of a status conference, an
October 3, 2019 notation on the docket does indicate that a status conference was cancelled.

       5
        This Court’s review of an appeal in a Right-to-Know Law (RTKL) matter is limited to
determining whether the trial court committed an error of law and whether its findings of fact were
supported by substantial evidence. California Borough v. Rothey, 185 A.3d 456, 462 n.6 (Pa.



                                                3
       1.      The trial court committed legal error and abused its discretion by
finding the requested information was exempt from disclosure under the RTKL,
without requiring the DA to sustain its burden of proving exemption from disclosure.
The DA offered no evidence to sustain its burden, and its mere statements of law
were not sufficient to sustain its burden of proof. The trial court also improperly
issued its decision without conducting a status conference, which it had already
scheduled, and at which Rojas would have been able to explain and argue his
position.
       2.      The trial court acted arbitrarily by finding the primary purpose of the
video was criminal investigation. According to a written Police policy, the purpose
of video recordings was to document Police conduct during interrogations (rather
than to document information related to a criminal investigation), and the trial court
admitted the Police also use such video recordings for training purposes. In this
regard, the trial court misapplied the analysis of Grove, 161 A.3d 877. At a
minimum, the trial court should have ordered redaction of the audio portion of the
recording and production of the video portion.
       3.      The video, which was introduced in court, was also subject to disclosure
as a record of a judicial agency. The trial court erred by determining that only
financial records of a judicial agency are subject to disclosure.
       4.      The trial court acted unreasonably in finding that CHRIA prohibited
disclosure of the video as a matter of law.




Cmwlth. 2018) (citing Paint Twp. v. Clark, 109 A.3d 796, 803 n.5 (Pa. Cmwlth. 2015)). However,
construction of the RTKL is a question of law over which this Court exercises plenary, de novo
review. California Borough, 185 A.3d at 462 n.6 (citing Hearst Television, Inc. v. Norris, 54 A.3d
23, 29 (Pa. 2012)).


                                                4
                                   III. Discussion
               A. Burden of Proving Exemption from Disclosure
      Rojas argues the trial court committed legal error and abused its discretion by
finding the video he requested from the DA was exempt from disclosure under the
RTKL. Rojas asserts the trial court failed to hold the DA to its burden of proving an
exemption from disclosure under the RTKL. Rojas contends the DA could not
sustain that burden solely with statements of law; rather, the DA had to offer
evidence, but did not do so. Rojas also reasons that because the trial court scheduled
a status conference, it acted improperly when it then issued a decision without
waiting to conduct that conference. Rojas suggests if he had been able to participate
in the status conference as scheduled, he could have explained and supported his
position. We discern no merit in these arguments.
      The DA is a local agency for RTKL purposes. Pennsylvanians for Union
Reform v. Centre Cty. Dist. Att’y’s Office, 139 A.3d 354, 356 (Pa. Cmwlth. 2016).
Section 302 of the RTKL requires a local agency to provide access to public records
upon request. 65 P.S. § 67.302.
      Section 102 of the RTKL defines a “record” as:
      [i]nformation, regardless of physical form or characteristics, that
      documents a transaction or activity of an agency and that is created,
      received or retained pursuant to law or in connection with a transaction,
      business or activity of the agency. The term includes a document,
      paper, letter, map, book, tape, photograph, film or sound recording,
      information stored or maintained electronically and a data-processed or
      image-processed document.

65 P.S. § 67.102. The video recording Rojas seeks is a “record” as defined in the
RTKL.




                                          5
      Section 102 of the RTKL defines a “public record” as a “record, including a
financial record, of a Commonwealth or local agency that: (1) is not exempt under
section 708 [of the RTKL, 65 P.S. § 67.708]; (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 privilege.” 65 P.S. § 67.102. Under Section 708(a)(1) of the
RTKL, a local agency denying a record request has the burden of establishing by a
preponderance of the evidence that the requested record is exempt from public
access and therefore not a public record. See 65 P.S. § 67.708(a)(1).
      Section 708(b)(16)(ii) of the RTKL exempts from disclosure any agency
record “relating to or resulting in a criminal investigation,” including
“[i]nvestigative materials, notes, correspondence, videos and reports.” 65 P.S.
§ 67.708(b)(16)(ii). The RTKL does not define the phrase “criminal investigation,”
but our Supreme Court has observed that the term “clearly and obviously refers to
an official inquiry into a possible crime.” Grove, 161 A.3d at 893.
      Applying these definitions here, the video at issue undisputedly documented
the Police’s interrogation of Rojas as part of a criminal investigation of a death.
Although Rojas argues the DA was required to offer evidence rather than merely
legal assertions in order to sustain its burden of proof, he fails to explain what
evidence was required beyond this undisputed fact.
      Similarly, despite his assertion that he should have been allowed to offer
evidence or arguments at a status conference before the trial court issued its decision,
Rojas offers no description of what evidence or arguments he would have offered or
how he believes they would have impacted the trial court’s decision. In fact, the
record provides no support for Rojas’s assertion that he would have been allowed to
offer either evidence or arguments at a status conference. Assuming he could have



                                           6
done so, however, and further assuming he would have presented in the trial court
the same arguments he makes on appeal to this Court, they would not have altered
the outcome in the trial court, for all the reasons stated herein.
       The trial court did not err in concluding the video was exempt as a matter of
law from disclosure under the RTKL.
                            B. Purpose of the Video at Issue
       In a related argument, Rojas contends the trial court erred in finding that a
criminal investigation was the primary purpose of the video. He argues that because
the primary purpose of the video was not related to a criminal investigation, the
video was not exempt from disclosure. This argument, too, lacks merit.
       Rojas points to a written Police policy requiring documentation of “the
conduct of interrogations and recording of confessions. . . .” Br. of Appellant, Ex.
B at 5.6 Rojas asserts that under this policy, video recordings are used to document
Police conduct during performance of interrogations, rather than the interrogations
themselves. We believe that in the context of the policy, the word “conduct” is not
used in the sense of documenting behavior by officers of the Police, but rather, in
the sense of documenting that the interrogation was performed. In either event,
however, the policy statement relates to documentation of a criminal investigation,
which is exempt from disclosure under the RTKL.
       Rojas also contends the trial court “admitted” the video was used for training
purposes. Br. of Appellant at 10. This is a mischaracterization of the trial court’s


       6
         We note that Exhibit B to Rojas’s brief includes several pages that are not part of the
record. We do not consider any information outside the record. Pa. R.A.P. 1921 & Note; HYK
Constr. Co. v. Smithfield Twp., 8 A.3d 1009, 1016-17 (Pa. Cmwlth. 2010); see also Sanders v.
Workers’ Comp. Appeal Bd. (Marriott Corp.), 756 A.2d 129, 133 (Pa. Cmwlth. 2000) (briefs are
not part of the record and appellate court may not consider facts outside the record). However,
page 5 of Exhibit B to Rojas’s brief is part of the record. See O.R., Item #4, Ex. B-2.


                                               7
statement. In a footnote to its order, the trial court observed, in part: “Whether the
interrogation video can be used by the [Police] for other purposes not related to
criminal investigation, like training, does not change the primary use of the video at
issue which is to investigate an incident which ultimately resulted in the filing of
charges against [Rojas].” O.R., Item #10 at 1-2 n.1 (emphasis added). Thus, the
trial court did not find the video was used for training purposes; rather, the trial court
merely commented that any potential additional uses of the video did not alter its
primary purpose of documenting a criminal investigation.
       In his alternative argument, Rojas insists that even if the audio portion of the
recording constituted documentation of a criminal investigation, the video portion
did not. Based on the analysis in Grove, Rojas reasons the trial court here should
have ordered redaction of the audio portion of the recording and production of the
video portion.7 We do not reach the merits of this argument.



       7
          In Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017), the requester sought
access to two mobile video recordings relating to a traffic accident. The recordings were generated
automatically when police officers responded to the accident scene. The Pennsylvania State Police
denied the request for the recordings, claiming they were exempt as investigatory records. The
OOR sustained the requester’s appeal, and the State Police sought judicial review. The State Police
argued the recordings were criminal investigative records because they depicted a vehicle accident
that resulted in traffic citations, which are summary criminal offenses.
        Ultimately, affirming a decision of this Court, our Supreme Court held the recordings were
not automatically exempt from disclosure as criminal investigative records under Section 708 of
the RTKL or under CHRIA. Rather, the State Police had the burden of establishing that the
recordings were investigative records, a determination our Supreme Court concluded must be
made on a case-by-case basis. Id. at 894.
        Our Supreme Court found the video components of the recordings in Grove were not
exempt from disclosure, because they did not depict the accident itself. They showed only the state
troopers at the accident scene, interacting with drivers and bystanders. Id. Further, the State Police
acknowledged in Grove that the information for the criminal citations did not come from the
recording, but from witness interviews. Accordingly, the video portions of the recordings were
subject to disclosure under the RTKL. Id.


                                                  8
      As the trial court correctly found, and as the DA correctly observes, Rojas did
not raise this alternative argument for the first time until his statement of issues on
appeal pursuant to Pa. R.A.P. 1925(b), after he filed his notice of appeal from the
trial court’s order. See O.R., Item #15 (trial court’s opinion pursuant to Pa. R.A.P.
1925(a), observing that Rojas first raised his redaction argument in his statement of
issues pursuant to Pa. R.A.P. 1925(b)); Item #4 (appeal to trial court from decision
of DA’s Appeals Officer affirming DA’s denial of records request); Item #4, Ex. A-
2 (appeal from initial denial of information request). Therefore, he has failed to
preserve this issue for our review. Orange Stones Co. v. City of Reading, 32 A.3d
287, 291 (Pa. Cmwlth. 2011) (“issues not raised before the trial court cannot be
raised for the first time on appeal or in a Rule 1925(b) Concise Statement of [Errors
Complained of] on Appeal”). Accordingly, the issue is waived.
                                C. Judicial Agency Records
      Rojas next asserts the video was subject to disclosure as a judicial agency
record, and the trial court erred in concluding that disclosure of judicial agency
records is limited to financial records. We disagree.
      As set forth above, the DA is a local agency, not a judicial agency.
Pennsylvanians for Union Reform, 139 A.3d at 356; see also Miller v. Cty. of Centre,
173 A.3d 1162, 1163-64 (Pa. 2017). Accordingly, its records are not judicial agency
records.
      To the extent Rojas suggests the video is a judicial agency record because of
its introduction in court8 at his criminal trial, that argument is irrelevant. He is not
seeking the video from the trial court. Even if he were, the limitation of disclosure
of judicial records to production of financial records would still prevent disclosure


      8
          A court is a “judicial agency” as defined by Section 102 of the RTKL. 65 P.S. § 67.102.


                                                9
of the video. See Miller, 173 A.3d at 1163 (“[u]nder the RTKL, only the financial
records of a judicial agency are subject to disclosure in response to RTKL requests”)
(citing Section 304 of the RTKL, 65 P.S. § 67.304). The trial court’s finding on that
issue was correct.
                     D. CHRIA’s Prohibition of Disclosure
      Finally, Rojas argues the trial court erred in finding that CHRIA precluded the
DA from producing the video in response to the RTKL request. Rojas’s argument
is without merit.
      CHRIA, in pertinent part, governs the dissemination and disclosure of
criminal history record information. Specifically, Section 9106(c)(4) of CHRIA
prohibits disclosure of “investigative information” except to criminal justice agents
and agencies:
      Investigative and treatment information shall not be disseminated to
      any department, agency or individual unless the department, agency or
      individual requesting the information is a criminal justice agency which
      requests the information in connection with its duties, and the request
      is based upon a name, fingerprints, modus operandi, genetic typing,
      voice print or other identifying characteristic.

18 Pa. C.S. § 9106(c)(4).
      Section 9102 of CHRIA defines “investigative information” as “[i]nformation
assembled as a result of the performance of any inquiry, formal or informal, into a
criminal incident or an allegation of criminal wrongdoing. . . .” 18 Pa. C.S. § 9102.
The word “assemble,” in this context, means to “‘bring or gather together into a
group or whole.’” California Borough v. Rothey, 185 A.3d 456, 467 (Pa. Cmwlth.
2018) (quoting Pa. State Police v. Kim, 150 A.3d 155, 160 (Pa. Cmwlth. 2016);
citing Am. Heritage Dictionary 134 (2nd Coll. ed. 1985)).
      Section 9102 of CHRIA defines a “criminal justice agency” as:


                                         10
      [a]ny court, including the minor judiciary, with criminal jurisdiction or
      any other governmental agency, or subunit thereof, created by statute
      or 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 include, 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. § 9102 (emphasis added). Thus, the DA is a criminal justice agency.
      In California Borough, information routinely recorded on a holding cell
surveillance video showed an altercation between a police officer and an arrestee
awaiting arraignment. As part of a criminal investigation into the police officer’s
conduct, the police chief downloaded the information stored on the video and gave
it to the district attorney for evaluation. This Court concluded the police chief
thereby “assembled” criminal investigation information within the meaning of
CHRIA. California Borough, 185 A.3d at 467. Consequently, CHRIA precluded
disclosure of the video to an individual requester. Id.
      Here, the trial court correctly determined that the video of Rojas’s
interrogation by Police was investigative. Indeed, Rojas does not dispute that it
related to an “inquiry, formal or informal, into a criminal incident or an allegation
of criminal wrongdoing.” 18 Pa. C.S. § 9102. Although the record does not
expressly demonstrate that the Police provided a copy of the video to the DA, Rojas
does not explain how it would otherwise be in the DA’s possession for presentation
as evidence at his trial, and Rojas neither contends nor cites authority suggesting that


                                          11
he could compel the DA to produce information not in its possession. Therefore, as
in California Borough, the Police here presumably “assembled” investigative
information within the meaning of 18 Pa. C.S. § 9106(c)(4) by providing the
information on the video to the DA for review. Accordingly, the restriction on
disclosure set forth in Section 9106(c)(4) of CHRIA was applicable.
      Contrary to Rojas’s assertion, he is not a criminal justice agency as defined in
Section 9102 of CHRIA, nor is he rendered such by his pro se status. Rather, he is
an individual litigating an information request against a criminal justice agency, the
DA. Nothing in the definition of a criminal justice agency suggests that it includes
an agency’s opposing party in an administrative proceeding. See 18 Pa. C.S. § 9102.
      Under Section 102 of the RTKL, information restricted from disclosure under
another state law is not a public record subject to disclosure under the RTKL. 65
P.S. § 67.102. The trial court correctly found that CHRIA prohibited the DA from
releasing the video to any person other than a criminal justice agency. Accordingly,
the video was not subject to disclosure in response to Rojas’s RTKL request.
                                  IV. Conclusion
      Based on the foregoing analysis, we conclude that the DA correctly refused
to produce the video of Rojas’s interrogation by Police. We affirm the trial court’s
order denying and dismissing Rojas’s appeal from the Appeals Officer’s decision
upholding the DA’s determination.




                                       __________________________________
                                       ELLEN CEISLER, Judge




                                         12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Peter Rojas,                       :
                  Appellant        :
                                   :
      v.                           : No. 1451 C.D. 2019
                                   :
Lehigh County Office of the        :
District Attorney                  :



                                ORDER


      AND NOW, this 16th day of July, 2020, the order of the Court of Common
Pleas of Lehigh County is AFFIRMED.




                                   __________________________________
                                   ELLEN CEISLER, Judge
