             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Souffrant,                                 :
                        Petitioner               :
                                                 :
                 v.                              :   No. 763 C.D. 2018
                                                 :   Submitted: October 26, 2018
Pennsylvania State Police,                       :
                   Respondent                    :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: February 7, 2019

                 Kevin Souffrant (Requester), pro se, petitions for review of a final
determination of the Office of Open Records (OOR) denying his appeal under the
Right-to-Know Law.1 In doing so, OOR affirmed the decision of the Pennsylvania
State Police that an ammunition and ballistics report requested by Requester was
exempt from disclosure. Requester contends the State Police did not meet its burden
of proving an exception under the Right-to-Know Law because the government is
required to provide exculpatory evidence in a criminal case. We affirm.
                 Requester is incarcerated at the State Correctional Institution at
Huntingdon. On March 6, 2018, the State Police received a written request from
him, seeking the following information under the Right-to-Know Law:

                 I [relating to Case No. 1303-008519] would like you to send me
                 a full and unedited copy of an Ammunition and Ballistics report



1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
              made by Trooper Michael J. Fortley, … a firearm and tool mark
              examiner.

              The document(s) I want and need are a full and unedited copy of
              all the possible make, model, caliber, barrel length, or the
              weapon or weapons that could have discharged those bullets and
              a copy of any and every comparisons made to determine if those
              discharged bullets were fired from the same unknown firearm or
              firearms. As a result, I want and need a copy of any and every
              reports generated of examinations that w[ere] conducted by
              Trooper Michael J. Fortley, for firearms and ballistics, which
              were authored by him or anyone else.

Certified Record (C.R. __), Item No. 1 at 2.
              On April 12, 2018,2 the State Police denied the Request but
acknowledged having a report associated with Case No. 1303-008519. The report
was completed at the request of the Lancaster City Police Department that the State
Police assist it in the investigation of a homicide. The State Police asserted that the
report was exempt from disclosure as information related to a criminal investigation
that, if disclosed, would reveal the progress or result of the investigation. The State
Police cited Section 708(b)(16) of the Right-to-Know Law, which states, in relevant
part, as follows:

              (b) Exceptions.--Except as provided in subsections (c)
              [(relating to financial records)] and (d) [(relating to aggregated
              data)], the following are exempt from access by a requester under
              this act:

                      (16) A record of an agency relating to or resulting
                      in a criminal investigation, including:

                                                   ***

2
  On March 13, 2018, the State Police advised Requester that it would need an additional 30 days
to review the matter, as permitted by Section 902(b) of the Right-to-Know Law, 65 P.S.
§67.902(b).
                                               2
                             (ii) Investigative materials, notes,
                             correspondence, videos and reports.

                                                  ***

                             (vi) A record that, if disclosed, would
                             do any of the following:
                                    (A) Reveal              the
                                    institution, progress or
                                    result of a criminal
                                    investigation, except the
                                    filing of criminal charges.

65 P.S. §67.708(b)(16). Additionally, the State Police claimed the report was
exempt under Section 9106(c)(4) of the Criminal History Record Information Act
(CHRIA), 18 Pa. C.S. §9106(c)(4), which prohibits criminal justice agencies from
disseminating investigative information, except to other criminal justice agencies.3
              Requester appealed to OOR, which offered both parties an opportunity
to supplement the record. The State Police submitted a notarized affidavit from
William Rozier, its open records officer, attesting that the report was exempt because
it relates to a criminal investigation. Requester submitted a statement claiming the
report was not exempt “because by not disclosing the information requested [it] has
and will continue to deprive [him] of the right to a fair trial or an impartial
adjudication.” OOR Appeal, C.R. Item No. 4 at 2. Further:


3
 Section 9106(c)(4) of CHRIA provides:
       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).
                                              3
               Although my counsel or I may have had the opportunity to
               request a copy of the above-mentioned document(s) during the
               Discovery Process, which requires the Prosecution to comport
               with principles of Due Process by producing Exculpatory or
               Inculpatory evidence, that process and those principles are still
               applicable. The Supreme Court held that Due Process required
               that the government produce all “Exculpatory” evidence, which
               includes both material that go[es] to the heart of the defendant’s
               guilt or innocence and material that might affect the jury’s
               judgment or the credibility of a crucial prosecution witness.

Id.
               OOR concluded a hearing was not necessary and issued a final
determination that the report related to a criminal investigation and, if disclosed,
would reveal the progress or result of the investigation. As such, the report was
exempt from disclosure under Section 708(b)(16)(ii) and (vi)(A) of the Right-to-
Know Law.4 OOR based its conclusion on Rozier’s affidavit. Therein, Rozier
identified one report responsive to the request, compiled by Trooper Fortley, a
firearm and tool examiner. Trooper Fortley prepared the report at the request of the
Lancaster City Police Department, which sought his assistance on a homicide
investigation. The report contained Trooper Fortley’s findings after his examination
of bullets recovered from the crime scene.
               Requester has petitioned for this Court’s review.5 He argues that OOR
erred in denying his request because the Right-to-Know Law must be construed to
maximize access to public records and because the government is required to
produce exculpatory evidence in a criminal case. The State Police responds that it


4
  Because OOR found the report was exempt under Section 708(b)(16) of the Right-to-Know Law,
it did not address whether it was also exempt under CHRIA.
5
  Our standard of review of a final determination of OOR is de novo; our scope of review is plenary.
Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
                                                 4
met its burden of proving the report is exempt from disclosure and Requester’s
arguments have already been addressed and rejected in Barros v. Martin, 92 A.3d
1243 (Pa. Cmwlth. 2014).
               In Barros, the requester submitted a Right-to-Know Law request to the
district attorney. He sought records related to his homicide conviction, including,
inter alia, State Police forensic lab reports. The requester asserted that the district
attorney acted improperly by not providing him with the records prior to his criminal
trial.   The requester argued that, as a result, the district attorney waived the
exemptions generally applicable to the release of such records. The requester further
asserted that the “public interest aspects of release elevated the need for disclosure
of the records.” Id. at 1246.
               The district attorney’s Right-to-Know Law officer denied the request
based upon Section 708(b)(16)(ii) and the requester appealed. An appeals officer
designated by the district attorney heard the appeal and, following in camera review,
issued a determination that the records were exempt under Section 708(b)(16)(ii).
               The requester appealed to the trial court. In addition to seeking judicial
review of the district attorney’s decision under the Right-to-Know Law, the
requester sought access to the records through civil actions seeking declaratory
judgment and a writ of mandamus. The trial court denied the appeal, finding that
the records were exempt under Section 708(b)(16)(ii) and the requester could not
collaterally attack alleged irregularities in his criminal prosecution by way of a civil
action. Instead, the exclusive mechanism to challenge his criminal prosecution was
the Post Conviction Relief Act, 42 Pa. C.S. §§9541-9546.6

6
  The trial court also determined the requester’s appeal was untimely. On appeal, this Court found
the trial court erred in that regard. However, because the trial court also addressed the merits of
the appeal, we found remand unnecessary.
                                                5
              The requester appealed to this Court. He acknowledged the exemption
in Section 708(b)(16)(ii) of the Right-to-Know Law for criminal investigative
records, but argued that Section 506(c)(3) allows an agency to disclose a record if it
favors the public interest. The requester also asserted that, as an accused, he was
entitled to the information in his criminal case. We rejected his first claim, stating
that Section 506(c)(3) prohibited the district attorney from releasing a record in the
public interest where disclosure is prohibited by “Federal or State Law or
regulation.” 65 P.S. §67.506(c)(3).7 The requested documents were protected from
disclosure not only by Section 708(b)(16)(ii) but also by CHRIA. We rejected the
requester’s second claim, stating that his attempt to obtain access to the records
through mandamus and declaratory relief was improper because “the Post
Conviction Relief Act is the vehicle through which he may challenge the alleged
withholding of documents that may have impacted his criminal trial.” Id. at 1252.
              Here, Requester was convicted of first-degree murder and related
offenses and sentenced to a mandatory term of life imprisonment on July 3, 2014.
His sentence was affirmed on appeal, as was a petition for collateral relief filed under



7
 In full, Section 506(c)(3) states:
        (c) Agency discretion.--An agency may exercise its discretion to make any
        otherwise exempt record accessible for inspection and copying under this chapter,
        if all of the following apply:
                 (1) Disclosure of the record is not prohibited under any of the
                 following:
                          (i) Federal or State law or regulation.
                          (ii) Judicial order or decree.
                 (2) The record is not protected by a privilege.
                 (3) The agency head determines that the public interest favoring
                 access outweighs any individual, agency or public interest that may
                 favor restriction of access.
65 P.S. §67.506(c)(3).
                                               6
the Post Conviction Relief Act. Commonwealth v. Souffrant (Pa. Super., No. 217
MDA 2017, filed September 15, 2017).
             Requester claims a right to the ballistics report because the Right-to-
Know Law must be construed to promote governmental transparency and protect the
public’s right of access to government information. Requester also contends that the
report contains exculpatory evidence to which he was entitled under Brady v.
Maryland, 272 U.S. 83 (1963). Based on Barros, we reject Requester’s claims. The
State Police established that the report relates to a criminal investigation and is
exempt under Section 708(b)(16)(ii) and (vi)(A) of the Right-to-Know Law. There
is no public right of access to the report that trumps the exemption. Moreover, if
Requester believes he is entitled to the documents because they relate to his criminal
conviction, the “Post Conviction Relief Act … is the exclusive vehicle through
which any relief in relation to a criminal conviction may be sought[.]” Barros, 92
A.3d at 1252 (quoting internally to the trial court opinion; citation omitted).
Requester has not established error.
             Accordingly, the final determination of OOR is affirmed.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Souffrant,                      :
                   Petitioner         :
                                      :
            v.                        :   No. 763 C.D. 2018
                                      :
Pennsylvania State Police,            :
                   Respondent         :


                                 ORDER

            AND NOW, this 7th day of February, 2019, the final determination of
the Office of Open Records, dated May 22, 2018, is hereby AFFIRMED.

                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge
