            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose Miguel Perez,                              :
                              Appellant         :
                                                :
               v.                               :   No. 394 C.D. 2017
                                                :   Submitted: June 16, 2017
Craig W. Stedman                                :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: July 12, 2017


               Jose Miguel Perez (Perez) appeals pro se an order of the Court of
Common Pleas of Lancaster County (trial court) which denied Perez’s appeal from
the District Attorney of Lancaster County (District Attorney) Craig W. Stedman’s
denial of his request filed pursuant to the Right-to-Know-Law (RTKL)1 for tapes
and tape-recorded conversations in connection with two criminal cases brought
against Perez in 1991. We affirm.


               On October 3, 2016, Perez, an inmate at the State Correctional
Institution at Frackville, filed a RTKL request with the District Attorney seeking


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
copies of “[t]apes, tape recorded conversations in connection with Commonwealth
v. Jose Miguel Perez, No. 1533 and 1497 of 1991.” (Exhibit A to Certified Record
(C.R.) Item 1, RTKL Appeal.) By letter dated October 7, 2016, the District
Attorney’s Open Records Officer denied the request because the requested records
were exempt from disclosure as criminal investigative records and information
under Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16), and under Section
9106(c)(4) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S.
§ 9106(c)(4).


              Perez filed an appeal with the District Attorney’s Open Records
Appeals Officer2 (Appeals Officer) claiming the requested records were not
exempt from disclosure because they were used by the District Attorney at Perez’s
criminal trial over 25 years ago and were made part of the criminal record.
Following review of the documentation related to Perez’s original request and his
appeal, the Appeals Officer denied the appeal. Perez then appealed to the trial
court. By order dated December 8, 2016, the trial court affirmed the Appeals
Officer’s determination.

       2
        Section 503(a)(2) of the RTKL, 65 P.S. § 67.503(a)(2), provides that the Office of Open
Records shall designate an appeals officer for all local agencies, with the exception that:

              The district attorney of a county shall designate one or more
              appeals officers to hear appeals under Chapter 11 relating to access
              to criminal investigative records in possession of a local agency of
              that county. The appeals officer designated by the district attorney
              shall determine if the record requested is a criminal investigative
              record.

Section 503(d)(2) of the RTKL, 65 P.S. § 67.503(d)(2).




                                               2
               On appeal to this Court,3 Perez argues that the trial court erred and
abused its discretion in upholding the Appeals Officer’s determination that the
requested records were exempt from disclosure. Perez argues that the District
Attorney waived the investigative exception under the RTKL and CHRIA when it
offered the requested records as evidence at his criminal trial. We disagree.


               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;

                     (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. Section 708(b) of the RTKL sets forth the exceptions from the
definition of “public record” and provides, in pertinent part, as follows:

               (b) Exceptions.--Except as provided in subsections (c)
               and (d), the following are exempt from access by a
               requester under this act:

       3
          Because there are no facts in dispute, our review is limited to determining whether the
trial court committed an error of law, violated any constitutional rights, or abused its discretion.
Barros v. Martin, 92 A.3d 1243, 1247, n.5 (Pa. Cmwlth. 2014) (citing SWB Yankees LLC v.
Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, 45 A.3d 1029 (Pa. 2012)). “The
scope of review for a question under the [RTKL] is plenary.” Wintermantel, 999 A.2d at 674,
n.2 (quoting Stein v. Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)).




                                                 3
                                       ***

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

                                       ***

                         (ii)    Investigative   materials,      notes,
             correspondence, videos and reports.


65 P.S. § 67.708(b)(16)(ii).    Therefore, “if a record, on its face, relates to a
criminal investigation, it is exempt under the RTKL pursuant to Section
708(b)(16)(ii).”   Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth. 2014)
(citations omitted).   As this Court has repeatedly held, criminal investigative
records remain exempt from disclosure even after an investigation is completed.
Id. (citing Sullivan v. City of Pittsburgh, Department of Public Safety, 561 A.2d
863, 865 (Pa. Cmwlth. 1989)).


             In addition, a record is not considered a public record under the RTKL
if it is exempt under any other State law, such as CHRIA that also precludes the
release of records. See Section 102 of the RTKL, 65 P.S. § 67.102; see also
Barros, 92 A.3d at 1250 (citing Coley v. Philadelphia District Attorney’s Office,
77 A.3d 694, 697 (Pa. Cmwlth. 2013)). Section 9106(c)(4) of CHRIA provides
that “[i]nvestigative 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. . . .” 18 Pa. C.S. § 9106(c)(4). CHRIA
defines the term “investigative information” as “[i]nformation assembled as a
result of the performance of any inquiry, formal or informal, into a criminal


                                         4
incident or an allegation of criminal wrongdoing and may include modus operandi
information.” 18 Pa. C.S. § 9102.


               Perez’s own request makes clear that the requested records are
investigative materials or information as he specifically states that he is seeking
“[t]apes, tape recorded conversations in connection with”4 two criminal cases
brought against him, making the requested records exempt from disclosure under
both the RTKL and CHRIA. Nonetheless, Perez contends that the investigative
exceptions under the RTKL and CHRIA were waived because the tapes were
offered into evidence.


               In general, a law enforcement agency cannot waive an exemption
under the RTKL when disclosure of the requested material is expressly prohibited
by state or federal law, as is the case here. See Section 506(c) of the RTKL, 65
P.S. § 67.506(c); Barros, 92 A.3d at 1251 (citations omitted). Specifically, as to
whether the investigative exemption is waived once those records are introduced at
trial, in Coley, we cited with approval our unpublished opinion in Arroyo v.
District Attorney of Lancaster, (Pa. Cmwlth., No. 1624 C.D. 2010, filed June 29,
2011) that addressed that issue. In Arroyo, the requester sought the release of
forensic slides and hair samples used by the district attorney as evidence in his
criminal trial. The district attorney’s office denied the request because the records
sought were investigative materials. We rejected the requester’s argument that
because “the Commonwealth introduced the slides and hair samples into evidence

      4
          (Exhibit A to C.R. Item 1, RTKL Appeal) (emphasis added).




                                              5
in the trial against him, it waives any claim that the materials are exempt from the
[RTKL].” Id., slip opinion at 5. We rejected that argument because those records
were “assembled as a result of the performance of an inquiry . . . into a criminal
incident.” Id., slip opinion at 9. In effect, we held that an exempt record did not
change its character just because it was offered in some other proceeding. If the
records from that proceeding are public, then the requestor has to obtain access
from the custodian of the records of that proceeding. In this case, Perez can seek
access to the requested records by obtaining the trial record or, more appropriately,
from his attorney who would have been provided copies of the tapes as part of the
pretrial exchange of evidence.5


               Accordingly, because the tapes contained in the District Attorney’s
investigative file remain exempt from disclosure as criminal investigative records
and investigative information pursuant to the RTKL and CHRIA, even though they
were offered into evidence, the order of the trial court is affirmed.




                                                     DAN PELLEGRINI, Senior Judge




       5
          While not part of the record before the trial court, the District Attorney submitted
excerpts from the transcript of Perez’s criminal trial attached to his brief filed with this Court.
These excerpts demonstrate that six audio cassette recordings of conversations between Perez
and a police informant were entered into evidence and that copies of all six tapes were provided
to Perez’s defense attorney.



                                                6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose Miguel Perez,                     :
                        Appellant      :
                                       :
            v.                         :   No. 394 C.D. 2017
                                       :
Craig W. Stedman                       :




                                    ORDER


            AND NOW, this 12th day of July, 2017, the order of the Court of
Common Pleas of Lancaster County in the above-captioned matter is affirmed.




                                           DAN PELLEGRINI, Senior Judge
