            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Hayden,                                 :
                       Petitioner              :
                                               :
               v.                              :
                                               :
Pennsylvania Board of                          :
Probation and Parole,                          :    No. 1065 C.D. 2018
                  Respondent                   :    Submitted: March 8, 2019



BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: July 9, 2019


               Joseph Hayden (Requester) petitions for review of the May 23, 2018
Final Determination (Final Determination) of the Pennsylvania Office of Open
Records (OOR), which denied Requester’s request to the Pennsylvania Board of
Probation and Parole (Board) seeking reports regarding his parole pursuant to the
Right-to-Know Law (RTKL).1 The Board denied access under its confidentiality
regulation that applies to parole files, 37 Pa. Code § 61.2. Upon review, we affirm.
               On April 3, 2018, Requester, an inmate at State Correctional
Institution–Houtzdale, submitted to the Board a request for reports regarding
multiple infractions he received as a parolee from February 23, 2015 through May


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
6, 2015, and which had led to his parole violation and ultimate re-incarceration. See
Handwritten Original Record Request (Request) attached to Requester’s April 25,
2018 OOR Appeal (Appeal); Certified Record Document No. 1. Specifically, the
Request reads:

               From 2/23/15 to 5/6/15 I was a resident of the 704 Second
               Ave[.] Pittsburgh Renewal Inc. halfway house. During
               this time I received multiple infractions which lead [sic] to
               me being violated. Parole oversaw and signed off on all
               of the infraction reports so Parole has a record of them.
               These infraction reports are being used against me and I
               can’t get a copy of them from in house parole. So under
               the right to know I’m requesting these records of all the
               infraction reports I received while a resident of Renewal
               Inc. halfway house. Thank you for your time.

Request; Certified Record Document No. 1. On April 10, 2018, the Board denied
the Request by letter, explaining that the records Requester sought were confidential
under the Board’s confidentiality regulation, 37 Pa. Code § 61.2.2 See Letter from
Board to Requester dated April 10, 2018, attached as Exhibit B to the Board’s
Position Statement filed May 8, 2018 (Position Statement); Certified Record
Document No. 3.
               Requester appealed the Board’s determination on April 25, 2018,
claiming that the information he sought concerned his parole violation

       2
         The Board also informed Requester that the records sought were confidential under the
Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§ 9101-9183, and were otherwise
excepted from requester access under the RTKL by virtue of the records being related to criminal
and non-criminal investigations, Section 708(b)(16) & (17) of the RTKL, 65 P.S. § 67.708(b)(16)
& (17), respectively. See Letter from Board to Requester dated April 10, 2018, attached as Exhibit
B to the Position Statement; Certified Record Document No. 3. In its Position Statement filed
with the OOR a month later and in its brief to this Court, the Board argues only the application of
its confidentiality regulation, 37 Pa. Code § 61.2. See Position Statement; Certified Record
Document No. 3; see also Board’s Brief at 7-9.
                                                2
recommitment and had nothing to do with any criminal investigation. See Appeal;
Certified Record Document No. 1. On May 8, 2018, the Board submitted a written
position statement in response to the OOR’s invitation to the parties to supplement
the record. See Position Statement; Certified Record Document No. 3. In the
Position Statement, the Board argued that Requester’s requested records are
confidential pursuant to 37 Pa. Code § 61.2, the confidentiality regulation that
pertains to all matters regarding probationers and parolees. See id. On May 23,
2018, the OOR issued its Final Determination denying the Appeal. See Final
Determination; Certified Record Document No. 4. Requester timely petitioned this
Court for review.
             We begin with an overview of the RTKL. “The objective of . . . [this]
[l]aw . . . is to empower citizens by affording them access to information concerning
the activities of their government.” SWB Yankees LLC v. Wintermantel, 45 A.3d
1029, 1042 (Pa. 2012). Further, the RTKL is remedial in nature and is “designed to
promote access to official government information in order to prohibit secrets,
scrutinize the actions of public officials and make public officials accountable for
their actions.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth.
2015) (citation omitted). “[C]ourts should liberally construe the RTKL to effectuate
its purpose of promoting access to official government information in order to
prohibit secrets, scrutinize actions of public officials, and make public officials
accountable for their actions.” Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399,
403 (Pa. Cmwlth. 2013) (internal quotations omitted). “Consistent with the RTKL’s
goal of promoting government transparency and its remedial nature, the exceptions
to disclosure of public records must be narrowly construed.” Bagwell, 114 A.3d at
1122.


                                         3
                Before this Court,3 Requester argues that reports regarding the
infractions he received as a resident of a halfway house during a period of parole are
not confidential, and therefore, he is entitled to receive copies of those reports. See
Requester’s Brief at 5. In his Appeal, Requester argues that, per Section 61.2 of the
Pennsylvania Code, 37 Pa. Code § 61.2, he is allowed to inspect documents that the
Board may use against him in determining his parole status. See Appeal. Requester
is incorrect.
                Records in the possession of a Commonwealth agency are presumed to
be public unless they are exempt under Section 708 of the RTKL, protected by a
privilege, or exempt from disclosure under any other federal or state law or
regulation or judicial order or decree. Section 305(a) of the RTKL, 65 P.S. §
67.305(a). 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, 341–42 (Pa. Cmwlth. 2010) (construing 37 Pa. Code § 61.2 to bar
access to parole recommendations). The burden of establishing an exemption may
be met “through an unsworn attestation or a sworn affidavit.” Global Tel*Link Corp.
v. Wright, 147 A.3d 978, 980 (Pa. Cmwlth. 2016).
                Here, the Board argues that the records Requester seeks are exempt
under its regulation regarding confidentiality of parole files, 37 Pa. Code § 61.2.
Section 61.2 of the Pennsylvania Code provides as follows:

                Records, reports and other written things and information,
                evaluations, opinions and voice recordings in the Board’s
                custody or possession touching on matters concerning a

       3
         “This Court’s standard of review of a final determination of the OOR is de novo and our
scope of review is plenary.” Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth.
2014).

                                               4
             probationer or parolee are private, confidential and
             privileged; except that a brief statement of the reasons for
             actions by the Board granting or refusing a parole will at
             all reasonable times be open to public inspection in the
             offices of the Board.

37 Pa. Code § 61.2. This Court has explained that “the broad language of this
regulation” encompasses any records in the Board’s custody concerning a
probationer or parolee.     Jones, 993 A.2d at 342.      Further, “[i]n view of the
specialized knowledge and expertise of the Board in parole matters, our courts have
consistently held that they will not interfere with the discretion of the Board in
granting parole.” Id. at 343.
             Here, the Board explained to the OOR that the records sought by
Requester “touch upon matters concerning [Requester’s] parole, and are related to
his probation and parole.” Position Statement at 3. The Affidavit of the Board’s
Open Records Officer attached to the Position Statement supports these facts. See
Affidavit of David M. Butts (Affidavit), attached as Exhibit C to the Position
Statement, at 2-3. Specifically, following a description of Mr. Butts’ duties as the
Open Records Officer and a statement that he was familiar with the Request, the
Affidavit states, in pertinent part:


             Board’s Response Concerning Joseph Hayden

             ...

             Review of Board Records:

             6. The Board has records that are responsive to his
             request.

             ...

                                          5
               8. The aforementioned records, supra ¶¶ 4, 6, includes
               [sic] records, reports and other written things, information,
               evaluations, and opinions that are in the Board’s custody
               or possession.

               9. The aforementioned records, supra ¶¶ 4, 6, touch upon
               matters concerning parolees or probationers that are
               related to their being a probationer or parolee.

               10. None of the requested records constitute “a brief
               statement of the reasons for action by the Board granting
               or refusing a parole.”

               11. Accordingly, the records requested by Mr. Hayden are
               protected from disclosure by the Board’s confidentiality
               regulation.

Affidavit at 2-3. Thus, under the broad language of the confidentiality regulation,
the documents Requester seeks are protected. 37 Pa. Code § 61.2; Jones.
               For the foregoing reasons, the OOR’s Final Determination is affirmed.4




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       4
          To the extent Requester’s brief purports to argue his position based on the Pennsylvania
Department of Corrections’ Bureau of Community Corrections’ Universal Set of Rules (BCC
Rules), see Requester’s Brief at 5-6 & 8, we note that Requester raises this issue for the first time
in his brief, and it is accordingly waived. See Pa.R.A.P. 1551.
                                                 6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Hayden,                       :
                 Petitioner          :
                                     :
           v.                        :
                                     :
Pennsylvania Board of                :
Probation and Parole,                :   No. 1065 C.D. 2018
                  Respondent         :


                                 ORDER


           AND NOW, this 9th day of July, 2019, the May 23, 2018 Final
Determination of the Pennsylvania Office of Open Records is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
