                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William E. Webster III,                        :
                 Petitioner                    :
                                               :    No. 1048 C.D. 2018
               v.                              :
                                               :    Submitted: January 18, 2019
Pennsylvania Board of 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: April 12, 2019


               William E. Webster III (Requester) petitions pro se for review of the July
2, 2018 final determination of the Office of Open Records (OOR) that dismissed his
appeal from the Pennsylvania Board of Probation and Parole’s (Board) denial of his
request for documents related to his parole hearing under the Right-to-Know Law
(RTKL).1
               On November 19, 2017, Requester, an inmate at the State Correctional
Institution at Somerset, filed a request with the Board for “the completed [Board] form
361 used for the 6/26/17 parole hearing/interview.” (Certified Record (C.R.), Item 1
at 2.) Pursuant to the Board’s regulations and policies, a “PBPP—361 Form,” officially


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
entitled a “Parole Decisional Instrument,” is a document that is prepared by
institutional parole staff. PBPP 361—Parole Decisional Instrument.2 As defined, a
PBPP—361 Form is “designed only to assist the Board in the exercise of its discretion”
regarding whether or not to grant parole and to ensure that the Board “give[s] proper
consideration to all [the] factors set forth by the [Prisons and Parole Code (Code)3].”
PBPP 361—Parole Decisional Instrument.4
                On December 4, 2017, the Board denied the request, stating, among other
things, that the requested records were confidential under Section 61.2 of the Board’s
regulations, which 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
                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 (emphasis added).



       2
            A copy of the PBPP-361 Form is available on the Board’s website at
https://www.pbpp.pa.gov/Understanding%20Parole/Documents/PDI%20361%2009-2014.pdf (last
visited March 29, 2019). See Section 6139(b) of the Code, 61 Pa.C.S. §6139(b) (“In granting and . .
. in discharging from parole, the [Board] . . . may act on the report submitted to them by their agents
and employees, together with any pertinent and adequate information furnished to them by fellow
members of the [B]oard or by others.”).

       3
           61 Pa.C.S §§101-7123.

       4
          See the Board’s Policies, Volume III, Chapter III, Case Records, Decision Processing,
3.02.04, VI.F (discussing the details and scoring method for a PBPP—361); 3.02.07, VI.A.(1-2)
(discussing the Board’s procedure for granting or refusing parole). See also Section 6137(a) of the
Code, 61 Pa.C.S. §6137(a) (General criteria for parole); Section 2154.5 of the Judicial Code, 42
Pa.C.S. §2154.5 (Adoption of guidelines for parole).


                                                  2
               Requester appealed to the OOR, contending that the Board’s denial was
inconsistent with the intent of the RTKL and that he has a due process right to the
requested information.         (C.R. at Item 1, 5-9.)          The OOR invited the parties to
supplement the record. On January 25, 2018, the Board submitted a position statement
and also a statement made under the penalty of perjury by David Butts, the Board’s
Open Records Officer. In his statement, Butts attested that, while the Board has records
that are responsive to the request, including the PBPP—361 Form, these records are
privileged under Section 61.2 because they pertain to matters concerning Requester’s
parole eligibility. Butts also attested that the Board has already provided Requester
with the “Notice of Board Decision,” dated December 4, 2017, which was made in
connection with Requester’s June 26, 2017 parole hearing and contained the Board’s
“statement of reasons” for denying him parole. (OOR’s decision at 2-4; C.R. Item 3,
at 1-9.) 5
               By a decision and final determination dated July 2, 2018, the OOR denied
Requester’s appeal, and Requester filed a petition seeking further review.
               Before this Court,6 Requester renews the arguments he advanced before
the OOR. He further contends that the Board failed to meet its burden of proving an
exemption and asserts that the document he requested does not pose a threat to national
or personal security and fails to qualify as a criminal investigative record.
               Under Section 305(a)(3) of the RTKL, a record in the possession of a
Commonwealth agency is presumed to be a public record subject to disclosure, but

       5
          See Section 6139(a)(5) of the Code, 61 Pa.C.S. §6139(a)(5) (stating that “whenever an
application for parole is refused by the [B]oard, a brief statement of the reasons for the [B]oard’s
action shall be filed of record in the offices of the [B]oard and shall be at all reasonable times open to
public inspection”).

       6
         Our standard of review of a final determination issued by the OOR is de novo and our scope
of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).


                                                    3
documents need not be released to a requester when “the record is exempt from
disclosure under any other . . . State law or regulation[.]” 65 P.S. §67.305(a)(3). If the
request for a document, on its face, establishes that it is exempt from disclosure based
on the language of the exemption, the department or agency responding to the request
will be deemed to have carried its burden of demonstrating that the record is exempt as
a matter of law. Coulter v. Department of Public Welfare, 65 A.3d 1085, 1090 (Pa.
Cmwlth. 2013).
             In pertinent part, Section 61.2 exempts as confidential and privileged
information “reports and other written things and . . . evaluations . . . in the Board’s
custody or possession touching on matters concerning a . . . parolee[.]” 37 Pa. Code
§61.2. This Court has recognized that the regulation contains “broad language” and,
by promulgating it, “the Board [has] ensure[d] the confidentiality of materials it gathers
in fulfilling its role of evaluating existing parolees and those seeking parole as well.”
Jones v. Office of Open Records, 993 A.2d 339, 342-43 (Pa. Cmwlth. 2010).
             Here, by the very nature of the request, Requester sought a document that
is plainly exempt under Section 61.2. As explained above, a PBPP—361 Form is a
record that assimilates information that is utilized by the Board to assist it in
determining whether an inmate should be granted parole. Although the Board relies
on, or at least consults, a PBPP—361 Form prior to rendering a parole decision, the
PBPP—361 Form is not part of the decision itself or the statement of reasons that
accompany such a decision. The request, consequently, is one that seeks documents
that are facially exempt from disclosure. See Kane v. Pennsylvania Board of Probation
and Parole (Pa. Cmwlth., No. 1287 C.D. 2014, filed July 23, 2015) (unreported), slip
op. at 4-5 (concluding that a request for documents from the district attorney’s office
regarding its negative recommendation that an inmate be denied parole were “private,



                                            4
confidential and privileged pursuant to Section 61.2”).7 This understanding of the
PBPP—361 Form is further confirmed by the averments in Butts’ verified statement,
and, “[w]here, as here, no evidence has been presented to show that the [Board or Butts]
acted in bad faith, the averments . . . should be accepted as true.” McGowan v.
Pennsylvania Department of Environmental Protection, 103 A.3d 374, 382-83 (Pa.
Cmwlth. 2014). Moreover, in Vu v. Pennsylvania Board of Probation and Parole (Pa.
Cmwlth., No. 819 C.D. 2018, filed December 13, 2018) (unreported), this Court
rejected a requester’s contention that Section 61.2 operates as a deprivation to, or
otherwise violates, a requester’s due process rights. We explained that “application of
Section 61.2 to exempt the requested records from the definition of ‘public records’
subject to disclosure under Section 305(a)(3) . . . does not implicate any due process
rights because . . . the RTKL does not create any property right in the records that
[r]equester sought.” Id., slip op. at 7-8. The same conclusion applies here.
               Requester’s remaining arguments regarding national security, personal
security, and the noncriminal investigative exemption all pertain to bases upon which
a department or agency could deny access to requested records.8 Having concluded
that the Board established that the requested record is exempt from disclosure pursuant
to Section 61.2 of its regulations, these arguments are immaterial to our disposition and
we decline to address them.

       7
         Although unreported decisions are not binding precedent, this Court considers and cites them
for their persuasive value. See Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).

       8
          See Section 708(b)(1)(ii), (b)(2), and (b)(16) of the RTKL, 65 P.S. §67.708(b)(1)(ii)
(exempting from disclosure a record which “would be reasonably likely to result in a substantial and
demonstrable risk [to] the personal security of an individual”); (b)(2) (exempting “[a] record
maintained by an agency in connection with the . . . national defense . . . that if disclosed would be
reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity);
(b)(16) (exempting “[a] record of an agency relating to or resulting in a criminal investigation”).


                                                   5
Accordingly, we affirm.


                          ________________________________
                          PATRICIA A. McCULLOUGH, Judge




                          6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William E. Webster III,                 :
                 Petitioner             :
                                        :    No. 1048 C.D. 2018
            v.                          :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


                                    ORDER


            AND NOW, this 12th day of April, 2019, the July 2, 2018 final
determination of the Office of Open Records is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
