            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hector Soto,                        :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 1119 C.D. 2017
                                    : Submitted: February 16, 2018
Pennsylvania State Police,          :
                                    :
                         Respondent :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                    FILED: May 7, 2018



               Hector Soto (Requester) petitions pro se for review of the Final
Determination of the Office of Open Records (OOR) denying his appeal of the
Pennsylvania State Police’s (PSP) denial of his request (Request) for a copy of
laboratory results of testing conducted on a liquid substance (PSP Lab Report No.
H17-05486) pursuant to the Right-to-Know Law (RTKL).1 We affirm.
               Requester is an inmate at the State Correctional Institution at
Huntingdon (SCI-Huntingdon). On May 10, 2017, Requester submitted the Request
to PSP seeking a copy of records relating to testing conducted on a liquid substance
that a PSP trooper confiscated from Requester on March 9, 2017. On June 16, 2017,
PSP denied the Request, asserting that the responsive record, PSP Lab Report No.

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.
H17-05486, is exempt from disclosure under Section 708(b)(16)(ii) and (vi)(A) of
the RTKL2 and the Criminal History Record Information Act (CHRIA)3 because it
relates to a criminal investigation.
               On June 28, 2017, Requester appealed to OOR challenging the denial
and asserting grounds for disclosure. OOR invited the parties to supplement the
record and directed PSP to notify any third parties of their ability to participate in
the appeal pursuant to Section 1101(c) of the RTKL.4 PSP submitted a position
statement reasserting its grounds for denial along with the notarized affidavit of
William A. Rozier, the Agency Open Records Officer (Officer Rozier).                               See
Certified Record (CR) Item 3. Officer Rozier stated that he personally examined
PSP Lab Report No. H17-05486 and that it “was compiled by forensic scientists
working for [PSP] Harrisburg Regional Laboratory in conjunction with a request by
PSP Troop G-Huntingdon related to an open and ongoing criminal investigation.”


       2
           65 P.S. §67.708(b)(16)(ii), (vi)(A). Section 708(b)(16)(ii) and (vi)(A) states, “the
following are exempt from access by a requester under this act: . . . A record of an agency relating
to or resulting in a criminal investigation, including: . . . Investigative materials, notes,
correspondence, videos and reports[,]” as well as “[a] record that, if disclosed, would . . . [r]eveal
the institution, progress or result of a criminal investigation, except the filing of criminal charges.”

       3
         18 Pa. C.S. §§9101-9183. Specifically, Section 9106(c)(4) states, “Investigative and
treatment information shall not be disseminated to any . . . individual unless the . . . 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). In turn, Section 9102 defines “investigative
information” as “[i]nformation assembled as a result of the performance of any inquiry, formal or
informal, into a criminal incident or an allegation of criminal wrongdoing[.]” 18 Pa. C.S. §9102.

       4
         65 P.S. §67.1101(c). Section 1101(c)(1) states, in relevant part, “A person other than the
agency or requester with a direct interest in the record subject to an appeal under this section may,
within 15 days following receipt of actual knowledge of the appeal . . . file a written request to
provide information or to appear before the appeals officer or to file information in support of the
requester’s or agency’s position.” 65 P.S. §67.1101(c)(1).


                                                   2
CR Item 3, Appendix at 2. He also stated that “[t]he lab report documents the
findings of forensic scientists” and that he withheld the responsive report from
disclosure because it is exempt under Section 708(b)(16)(ii) of the RTKL and
CHRIA because it relates to a criminal investigation. Id.
              On appeal, OOR found that “PSP provided evidence establishing that
as part of its investigation, forensic scientists conducted lab tests and prepared a lab
report with their findings.” CR Item 4 at 4. OOR concluded, “Based on the evidence
presented, the PSP has met its burden of proving that the responsive lab report is
related to a criminal investigation, and therefore is exempt from disclosure.” Id. As
a result, OOR denied Requester’s appeal.
              On appeal to this Court,5 Requester argues that OOR abused its
discretion and PSP denied his due process rights by failing to provide him with a
copy of PSP Lab Report No. H17-05486 or the results of laboratory testing of the
liquid substance confiscated by the trooper. Requester asserts that criminal charges
have not been filed based on his possession of the liquid substance, which the trooper
believed was synthetic heroin, but that disciplinary measures have been imposed as
a result of its confiscation. Requester contends that the tortuous treatment that he
has received over the liquid substance is outrageous because it is not a narcotic, but
a scented soap oil. Requester contends that he needs documentary proof from PSP
that the confiscated liquid substance is not a narcotic or illegal substance to remove
the disciplinary measures that have been imposed by the prison officials.
              However, the RTKL requires Commonwealth agencies to produce
documents that are “public records” in response to a RTKL request. Section 301(a)

       5
         In an appeal of an OOR Final Determination involving Commonwealth agencies, our
standard of review is de novo, and our scope of review is plenary. Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013).
                                             3
of the RTKL, 65 P.S. §67.301(a). Section 305 of the RTKL provides, in pertinent
part, that “[a] record in the possession of a Commonwealth agency or local agency
shall be presumed to be a public record,” unless “the record is exempt under
[S]ection 708.” 65 P.S. §67.305. The RTKL defines a “public record” as “[a] record,
including a financial record, of a Commonwealth . . . agency that: (1) is not exempt
under [S]ection 708 . . . .” Section 102 of the RTKL, 65 P.S. §67.102.
             As noted above, Section 708(b)(16)(ii) and (vi)(A) exempt from
disclosure “[a] record of an agency relating to or resulting in a criminal investigation,
including: . . . Investigative materials, notes, correspondence, videos and reports[,]”
as well as “[a] record that, if disclosed, would . . . [r]eveal the institution, progress
or result of a criminal investigation, except the filing of criminal charges.” 65 P.S.
§67.708(b)(16)(ii), (vi)(A).
             The agency receiving the request bears the burden of proving the record
is exempt by a preponderance of the evidence. Section 708(a) of the RTKL, 65 P.S.
§67.708(a). The preponderance of the evidence standard, which is “the lowest
evidentiary standard, is tantamount to a more likely than not inquiry.” Delaware
County v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth.
2012). An agency can meet its burden of proof through affidavits. Moore v. Office
of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010).
             With regard to Section 708(b)(16)’s criminal investigation exemption,
and the prohibition in CHRIA, this Court has previously held that documents
requested by a prisoner from a county district attorney relating to his homicide
investigation are exempt from disclosure. Barros v. Martin, 92 A.3d 1243, 1249
(Pa. Cmwlth.), appeal denied, 97 A.3d 745 (Pa. 2014). Specifically, we determined
that the RTKL and CHRIA prohibited the release of the following records: the


                                           4
criminal complaint file; forensic laboratory reports; any confession and record of a
polygraph of the alleged perpetrator; records of emergency calls; an internal police
“wanted” notice; arrest reports of those mistakenly apprehended; and signed witness
statements. Id. at 1250.
               Upon review of Officer Rozier’s affidavit, we are satisfied that PSP met
its burden of proving that the requested record is exempt from disclosure under
Section 708(b)(16)(ii) and (vi)(A) of the RTKL and Section 9106(c)(4) of CHRIA.
Moore. As a result, in the instant case, PSP Lab Report No. H17-05486 is protected
from disclosure. See Barros, 92 A.3d at 1250 (“[I]f a record, on its face, relates to a
criminal investigation, it is exempt under the RTKL pursuant to Section
708(b)(16)(ii). Criminal investigative records remain exempt from disclosure under
the RTKL even after the investigation is completed. Also, a record is not considered
a public record under Section 102 of the RTKL if it is ‘exempt under any other State
or Federal Law,’ including the CHRIA.”) (citations omitted).6

       6
          Although the RTKL was not the proper avenue for Requester to contest the confiscation
of the liquid substance or the imposition of disciplinary measures for its possession, other remedies
were available. See, e.g., Section 93.9 of the Department of Corrections’ (Department)
regulations, 37 Pa. Code §93.9 (“The Department will maintain an inmate grievance system which
will permit any inmate to seek review of problems which the inmate experiences during the course
of confinement. The system will provide for review and resolution of inmate grievances at the
most decentralized level possible. It will also provide for review of the initial decision making
and for possible appeal to the Central Office of the Department.”); Section 93.10 of the
Department’s regulations, 37 Pa. Code §93.10 (providing procedures relating to inmate
misconduct and the imposition of discipline including written notice, a hearing, an opportunity for
the inmate to present evidence, and an appeal from an adverse decision); Section 93.11(b) of the
Department’s regulations, 37 Pa. Code §93.11(b) (relating to procedures regarding confinement in
the restricted housing unit). See also Section 1(A)(7) of Department Policy DC-ADM 804 (“Issues
concerning a specific inmate misconduct charge, conduct of a hearing, statements written within a
misconduct and/or other report, a specific disciplinary sanction, and/or the reasons for placement
in administrative custody will not be addressed through the Inmate Grievance System and must be
addressed through Department Policy DC-ADM 801, ‘Inmate Discipline’ and/or DC-ADM 802,


                                                 5
              Accordingly, OOR’s Final Determination is affirmed.




                                           MICHAEL H. WOJCIK, Judge




‘Administrative Custody Procedures.’ Issues other than specified above must be addressed
through the Inmate Grievance System.”); Section 3(C)(7) Note of Department Policy DC-ADM
815 (“All items deemed to be contraband will be destroyed or otherwise disposed of. . . .
Destruction of contraband will ONLY occur after the inmate’s misconduct hearing is held and the
misconduct appeal process is exhausted. When an inmate files a grievance regarding confiscated
contraband, destruction of the property will only occur after the appeal process has been
exhausted.”).
                                              6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hector Soto,                        :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 1119 C.D. 2017
                                    :
Pennsylvania State Police,          :
                                    :
                         Respondent :

                                    ORDER


               AND NOW, this 7th day of May, 2018, the Final Determination of the
Office of Open Records dated July 26, 2017, at AP 2017-1281, is AFFIRMED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
