          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Madison,                              :
                              Petitioner       :
                                               :
               v.                              :    No. 820 C.D. 2018
                                               :    Submitted: January 25, 2019
Pennsylvania Board of Probation                :
and Parole,                                    :
                        Respondent             :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: March 27, 2019

               Lawrence Madison (Requester), representing himself, petitions for
review from the Office of Open Records’ (OOR) final determination upholding the
Pennsylvania Board of Probation and Parole’s (Board) denial of his request under
the Right-to-Know Law (RTKL).1 The Board denied access to the decision on
revocation based on the protection in Board regulation 37 Pa. Code §61.2 (the
Regulation). Upon review, we reverse.


                                       I. Background
               Requester, an inmate at the State Correctional Institution at Albion, seeks
a record related to his parole revocation in 2012. In February 2018, he submitted a
RTKL request to the Board for a copy of the decision of July 19, 2012, following
his revocation hearing, presumably on the same date (Prior Request). In response,


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
the Board provided a copy of the Notice of Board Decision dated August 15, 2012.
Relevant here, Requester advised the Board the record it sent was not responsive
because it pertained to a 2010 arrest and technical parole violation. Based on the
Prior Request, he submitted another request for the following:

             the revocation hearing in this same matter [parole case no.
             85430] decisional part that was rendered after my conviction
             and state prison sentence.

(Request) (underline in original; italics added). Certified Record (C.R.), Item No. 1.
The Board denied access, citing the investigative exceptions in Section 708(b) of the
RTKL, 65 P.S. §§67.708(b)(16), (b)(17), the Criminal History Record Information
Act, 18 Pa. C.S. §§9101-9183, and the Regulation.


             Requester appealed to OOR, asserting the Board did not provide the
decisional document sought in the Request. His appeal explained: “Requester is
entitle[d] to any brief statement of the reasons for actions by the [B]oard.” C.R.,
Item No. 1. He advised this brief statement “is public under the RTKL.” Id. OOR
assigned an appeals officer and developed the record.


             Significantly, before OOR, the Board relied on the Regulation as its
sole basis for denial. C.R., Item No. 3. In addition to its position statement, which
outlined protections in the Regulation, the Board submitted an affidavit of David M.
Butts, its Open Records Officer (Affidavit). The Open Records Officer confirmed the
Board possessed responsive records. Id., Affidavit at ¶6. However, quoting the
Regulation, he attested the requested record did not constitute “a brief statement of the
reasons for action by the Board granting or refusing a parole.” Id., Affidavit at ¶10.



                                           2
               After the record closed, the appeals officer emailed the Board about
“what document [Requester] is seeking” because she was unfamiliar with parole
hearings. C.R., Item No. 4 (Emails). She also asked why the decisional document
sought in the Request was not the same as the decision provided in response to the
Prior Request. Id. The Board replied that the decision was the official Board action,
similar to a final order. It described the requested record as a “hearing report.”2 Id.


               OOR issued a final determination upholding the Board’s denial under
the Regulation. See Madison v. Pa. Bd. of Prob. & Parole, OOR Dkt. No. AP 2018-
0818 (issued June 4, 2018) (Final Determination); C.R., Item No. 5. OOR concluded
that the Board proved the “hearing report” was confidential under the Regulation. Id.
at 1. In a footnote, the Final Determination stated: “[Requester] had previously filed
a request and received the Board action, which explained the results of his hearing.
Therefore, the Board reasonably inferred that the ‘decisional part’ referred to the full
hearing report in the same action.” Id. at 2 n.1.


               Requester then filed a petition for review to this Court.3


                                          II. Discussion
               On appeal, Requester argues OOR erred in determining the Request
sought a “hearing report” when it did not contain those words. He asserts the
decisional record is public under the Regulation as a brief statement of reasons for

       2
          Although the appeals officer’s initial email states it was copied to Requester by U.S. mail,
there is no indication the Board’s response or the appeals officer’s reply was sent to Requester.
       3
        In an appeal involving a Commonwealth agency, this Court may rely on the record
developed before the appeals officer. Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823 (Pa.
Cmwlth. 2014) (en banc). Our review of matters of law is plenary. Id.

                                                  3
the decision. He contends the Request clearly sought the decisional document, and
he assigns error in that “the [B]oard and OOR took it upon themselves to mis-word
[sic] the [R]equest as a hearing report.” Pet’r’s Br. at 8.


             Because identifying the record requested is crucial to evaluating its
public status, we address Requester’s challenge to the Board’s and OOR’s
construction of his Request first.


                              A. Construction of Request
             A requester may challenge an agency’s or an appeals officer’s
construction of his request on appeal. See, e.g., UnitedHealthcare of Pa., Inc. v.
Dep’t of Human Servs. (Pa. Cmwlth., No. 824 C.D. 2017, filed May 31, 2018), 2018
WL 2436334 (unreported) (assessing agency’s interpretation of request); Shuler v.
Dep’t of Corr. (Pa. Cmwlth., No. 237 C.D. 2016, filed November 1, 2016), 2016 WL
6441187 (unreported) (holding agency narrowly construed request to exclude
responsive records; remanding to assess nature of additional records); see also
Coulter v. Dep’t of Pub. Welfare, 65 A.3d 1085 (Pa. Cmwlth. 2013) (relying on plain
language of request to support noncriminal investigative exception).              When
evaluating such a challenge, this Court considers the plain language of a RTKL
request as compared to an agency’s interpretation of a request. UnitedHealthcare of
Pa.; see Uniontown Newspapers, Inc. v. Dep’t of Corr., 151 A.3d 1196 (Pa. Cmwlth.
2016) (construing plain language of request in enforcement context).


             On appeal to OOR, the Board characterized the Request as “seek[ing]
the actual decisional instrument (i.e.[,] hearing report) that was drafted as a result of



                                           4
the Board’s decision.” C.R., Item No. 3 (emphasis added). OOR adopted the
Board’s characterization evinced by repeated statements in the Final Determination
that the Request sought a “hearing report.” See Final Determination at 1, 4.


             From our review, we agree that OOR recast the Request so as to alter
the record requested. OOR’s construction of the Request as seeking a “hearing
report” is not consistent with its plain language. The term “hearing report” is not
contained in the Request or the Prior Request. C.R., Item No. 1.


             In addition, OOR’s construction directly contradicts Requester’s
submissions to OOR. In his appeal to OOR, Requester stated he was entitled to the
brief statement of reasons for the revocation decision. His Request clearly, and with
emphasis, sought the “decisional part that was rendered after my conviction.” C.R.,
Item No. 1 (Request). Requester also stated in his appeal to OOR: “Requester did
not, or does not request any records, reports and other written things and information,
evaluations, opinions and voice recordings, etc. He just wants the decision, or brief
statement … that all parolees receive after the conclusion of the hearing.” C.R., Item
No. 1 (Appeal at 2).


             Instead of being guided by Requester’s submissions, OOR adopted the
Board’s characterization of the Request. Indeed, after the record closed, OOR asked
the Board what record Requester sought. C.R., Item No. 4. The Board responded by
email. Thus, OOR had no evidence supporting the Board’s proffered construction.
In adopting the Board’s construction here, OOR’s construction was unreasonable.
UnitedHealthcare of Pa.



                                          5
             Moreover, long-standing precedent holds OOR may not modify a
request on appeal. Pa. State Police v. Office of Open Records (George), 995 A.2d
515 (Pa. Cmwlth. 2010). The requester, not the agency or appeals officer, is the
architect of his RTKL request, and is in the best position to explain what he means.
In the event an appeals officer needs clarification on what a requester seeks, and the
record lacks information on that issue, an appeals officer should contact the requester
to discern the records sought, not the agency. Further, to the extent there is a dispute
regarding construction of a RTKL request, and OOR makes a finding in that regard,
such a finding must be supported by evidence.


             Because OOR’s construction of the Request as a hearing report is
contrary to Requester’s description, we deem it unreasonable. Therefore, we turn to
the legal issue before us to determine the public nature of the records requested.


                                   B. Public Status
             As to public status, Requester argues the information requested is
specifically excluded from the confidentiality part of the Regulation. He contends
the statement of reasons for the revocation decision is public as a matter of law under
the same Regulation the Board cites to shield it. He maintains that to the extent there
is no separate document that is entirely comprised of a statement of reasons for the
revocation decision, the Board has the duty to redact the record it has so that the
public information is disclosed.


             Under the RTKL, records in possession of a Commonwealth agency are
presumed to be public unless they are: (1) exempt under Section 708 of the RTKL;



                                           6
(2) “protected by a privilege; or[,] (3) … 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) (emphasis added). When the ground for exemption is a
regulation, the agency bears the burden of proving the regulation applies. See Jones
v. Office of Open Records, 993 A.2d 339 (Pa. Cmwlth. 2010).


             Here, the Board argues the record is exempt under the Regulation
(relating to confidentiality of parole files). It provides, “records, reports and other
written things and information ... touching on matters concerning a probationer or
parolee are private, confidential and privileged ....” 37 Pa. Code §61.2. Id. Relevant
here, there is an exception for “a brief statement of the reasons for actions by the
Board granting or refusing a parole,” which shall be open to public inspection. Id.


             This Court has addressed the Regulation as an exemption numerous
times in the RTKL context. See, e.g., Coulter v. Pa. Bd. of Prob. & Parole, 48 A.3d
516 (Pa. Cmwlth. 2012) (protecting parolee home plans); Jones (protecting parole
recommendations); Vu v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 819 C.D.
2018, filed December 13, 2018) (per curiam), 2018 WL 6546307 (unreported)
(protecting reports, assessments of motivation and remorse, and prosecutor’s
recommendation); Davis v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 944 C.D. 2015,
filed June 3, 2016), 2016 WL 3129924 (unreported) (protecting probation order).
However, we have not analyzed the exception to the Regulation that makes public the
“brief statement of the reasons” for a revocation decision. 37 Pa. Code §61.2.




                                          7
              In his appeal to OOR, Requester argued the record he sought was public
because the Regulation makes the statement of reasons public as a matter of law.
C.R., Item No. 1. He explained that the record he expected to receive was in fact
that statement of reasons. Id. The language of the Regulation specifies that the brief
statement of reasons is public. The Board relied entirely on the Regulation as the
basis for not disclosing records responsive to the Request.4


              Here, the Board acknowledged responsive records exist. See Affidavit
at ¶6. Notably, the Board did not deny the existence of a statement of reasons.
Rather, it claimed that “[n]one of the requested records constitute[s] ‘a brief
statement of the reasons’.…” Affidavit at ¶10 (emphasis added).


              Section 306 of the RTKL provides that “nothing in [the RTKL] shall
supersede or modify the public or nonpublic nature of a record or document
established in … regulation.” 65 P.S. §67.306. Therefore, as a matter of law,
Requester is entitled to the brief statement of reasons described in the Regulation. To
the extent the statement of reasons is contained in another document, the remainder
of which is protected by the Regulation, the Board shall redact the record and disclose
the public portions (i.e., brief statement of reasons) to Requester. Section 706 of the
RTKL, 65 P.S. §67.706; see Pa. State Police v. Grove, 161 A.3d 877 (Pa. 2017).




       4
         The Board raised no other grounds for nondisclosure to the fact-finder, OOR. Thus, it is
precluded from raising such exemptions now. Levy v. Pa. Senate, 94 A.3d 436 (Pa. Cmwlth. 2014).

                                               8
                                   III. Conclusion
             For the foregoing reasons, we reverse OOR’s Final Determination and
direct disclosure of the brief statement of reasons for the revocation decision that is
public under the Regulation.




                                        ROBERT SIMPSON, Judge




                                          9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Madison,                         :
                          Petitioner      :
                                          :
             v.                           :   No. 820 C.D. 2018
                                          :
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :


                                       ORDER

             AND NOW, this 27th day of March, 2019, the final determination of
the Office of Open Records is REVERSED. The Pennsylvania Board of Probation
and Parole shall provide Petitioner access to the “statement of reasons …” that are
exempt from the confidentiality protection in 37 Pa. Code §67.2, by redaction of
other information, if necessary, within thirty (30) days.



                                        ROBERT SIMPSON, Judge
