defending a records request “inter alia” on the basis of the Board’s Confidentiality Regulation
How later courts described this case
- defending a records request “inter alia” on the basis of the Board’s Confidentiality Regulation
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh County District : CASES CONSOLIDATED
Attorney’s Office, :
Appellant :
:
v. : No. 1444 C.D. 2019
:
William E. Webster, III :
William E. Webster III, :
Appellant :
:
v. : No. 154 C.D. 2020
:
Lehigh County District :
Attorney’s Office : Submitted: March 8, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOLF FILED: August 20, 2024
The Lehigh County District Attorney’s Office (DA’s Office) appeals from an
order entered September 13, 2019, in the Court of Common Pleas of Lehigh County
(trial court), affirming a final determination of the Office of Open Records (OOR).
The OOR’s final determination directed the DA’s Office to provide William E.
Webster III (Webster) with records responsive to his request for recommendations
made by the DA’s Office to the Pennsylvania Parole Board1 (Parole Board or Board)
concerning Webster’s parole between years 2016 and 2018. Also before the Court
is Webster’s pro se appeal from the trial court’s October 14, 2019 order denying
Webster’s motion for attorney’s fees and litigation costs. For the reasons that follow,
we affirm both orders.
Background
In 2016 and 2017, Webster was denied parole based, in part, on negative
recommendations made by the DA’s Office. Reproduced Record (R.R.) at 35.2
Webster submitted a request to the DA’s Office pursuant to the Right-to-Know Law
(RTKL)3 seeking “[a]ny and all recommendations made by the [DA’s Office] to the
[Parole Board] concerning [Webster’s] parole, between 2016 and 2018” (Request).
R.R. at 71. The DA’s Office denied Webster’s Request arguing that the information
sought is confidential under the Board’s regulation relating to confidentiality of
writings touching on matters concerning a parolee and thus, exempt from disclosure
under the RTKL. See 37 Pa. Code § 61.2 (Confidentiality Regulation);4 Section 305
of the RTKL, 65 P.S. § 67.305.
1
Subsequent to the filing of the notices of appeal, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, 61 Pa.C.S. §§ 6101, 6111(a).
2
The Reproduced Record is not properly numbered as directed in Pa.R.A.P. 2173
(reproduced record shall be numbered separately in Arabic figures followed by a small “a”). We
will nevertheless refer to the page numbers as they have been set forth by the DA’s Office.
3
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
4
The Board’s Confidentiality Regulation is set forth in full at page 5, infra.
2
Webster appealed the DA’s Office’s denial to the OOR. The OOR granted
Webster’s appeal and directed the DA’s Office to turn over all materials responsive
to the Request within 30 days. R.R. at 76. The DA’s Office filed a timely appeal
with the trial court. Following de novo review, the trial court affirmed the final
determination of the OOR. Id. at 42. The DA’s Office filed a notice of appeal to
this Court on October 10, 2019. Id. at 2.5
On October 11, 2019, Webster filed a motion for attorney’s fees and litigation
costs (motion for fees and costs) in the trial court. R.R. at 2. By order entered on
October 14, 2019, the trial court denied Webster’s motion. Webster filed a notice of
appeal to the Superior Court on November 1, 2019. Id. The Superior Court
transferred Webster’s appeal to this Court on December 16, 2019.6 By order dated
February 27, 2020, this Court sua sponte consolidated the parties’ respective
appeals. We discuss each appeal in turn.
DA’s Office’s Appeal7
The DA’s Office raises a single issue for this Court’s review. It asserts that
the trial court and the OOR erred in concluding that the Board’s Confidentiality
Regulation does not exempt from disclosure records responsive to Webster’s
5
The appeal was docketed at No. 1444 C.D. 2019.
6
Webster’s appeal was docketed at No. 154 C.D. 2020.
7
Our review of a trial court’s order in a RTKL dispute is “limited to determining whether
findings of fact are supported by [substantial] evidence or whether the trial court committed an
error of law, or an abuse of discretion in reaching its decision.” Borough of Pottstown v. Suber-
Aponte, 202 A.3d 173, 178 n.8 (Pa. Cmwlth. 2019) (quoting Butler Area Sch. Dist. v.
Pennsylvanians for Union Reform, 172 A.3d 1173, 1178 n.7 (Pa. Cmwlth. 2017)). “The scope of
review for a question of law under the [RTKL] is plenary.” Id. (quoting SWB Yankees LLC v.
Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010), aff’d, 45 A.3d 1029 (Pa. 2012)).
3
Request, which relate to correspondence between the DA’s Office and the Board
regarding Webster’s parole status.
We begin with an overview of the RTKL. The General Assembly enacted the
RTKL in 2008, replacing what was previously known as the “Right-to-Know Act”8
and substantially broadening the public’s access to government records. Off. of the
Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1129 (Pa. Cmwlth. 2017). The 2008
enactment set forth a comprehensive scheme for public records requests directed at
Commonwealth and local agencies. Notably, and in contrast from its predecessor,9
the RTKL contains a presumption that agency records are public and accessible,
“unless they fall within specific, enumerated exceptions or are privileged.” Id.
Section 305(a) of the RTKL details the statutory presumption and provides, in
relevant part:
(a) General rule.--A record in the possession of a
Commonwealth agency or local agency shall be presumed
to be a public record. The presumption shall not apply if:
(1) the record is exempt under [S]ection 708[, 65 P.S. §
67.708];
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other
Federal or State law or regulation or judicial order or
decree.
8
Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1-66.9, repealed by
the Act of February 14, 2008, P.L. 6.
9
Under the Right-to-Know Act, the requester bore the burden of establishing that the
request bore the characteristics of a public record. LaValle v. Off. of Gen. Counsel, 769 A.2d 449,
458 (Pa. 2001).
4
65 P.S. § 67.305(a).10 The burden of proving that a record is exempt from public
access lies with the Commonwealth or local agency that receives a request and must
be established by a preponderance of the evidence. Section 708(a) of the RTKL, 65
P.S. § 67.708(a).
The clear statutory directives described above provide Commonwealth and
local agencies with a well-defined path to defend a public records request from a
requester. To overcome the presumption that the record requested is a public record,
an agency may assert one, or more, of the three exceptions set forth in Section
305(a) of the RTKL.
Before the OOR, the DA’s Office elected to argue that Webster’s Request was
exempt from disclosure under Section 305(a)(3) of the RTKL (“exempt from
disclosure under [a State] regulation . . . .”), citing a Confidentiality Regulation
promulgated by the Parole Board and a case involving the Parole Board’s defense of
a public records request in support. See 37 Pa. Code § 61.2; Jones v. Off. of Open
Recs., 993 A.2d 339 (Pa. Cmwlth. 2010). The Parole Board’s Confidentiality
Regulation, on which the DA’s Office hung its hat, provides:
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.
10
The language of the presumption tracks the definition of “public record” set forth in
Section 102 of the RTKL, 65 P.S. § 67.102.
5
In Jones, a state prison inmate filed a RTKL request, asking the Board for
access to recommendations by the sentencing judge and prosecuting attorney related
to the denial of his parole. Jones, 993 A.2d at 340. The Board denied the request,
concluding that the documents were privileged in accordance with its Confidentiality
Regulation. On appeal, the OOR affirmed the Board’s denial of the inmate’s request.
On further appeal this Court affirmed, holding that the Board established the
requested documents were privileged pursuant to the Confidentiality Regulation.
The Jones Court stated:
Given the broad language of this regulation, we conclude
any recommendation made by the sentencing judge and
prosecuting attorney would qualify as “[r]ecords” and
“evaluations and opinions” that are “in the Board’s
custody” that “touch[ ] on matters concerning a
probationer or parolee,” and thus would be considered
“private, confidential and privileged.” Accordingly, we
find the Board met its burden of establishing these
recommendations are not subject to disclosure.
Jones, 993 A.2d at 342.11
Based on the plain language of the Board’s Confidentiality Regulation and
distinguishing the Jones case, the OOR rejected the DA’s Office’s rationale for
denying Webster’s Request. It found that the Confidentiality Regulation makes
confidential “[r]ecords, reports and other written things and information,
evaluations, opinions and voice recordings in the Board’s custody or possession.”
37 Pa. Code § 61.2 (emphasis added). Accordingly, while the Confidentiality
Regulation functioned to exempt the records from disclosure in Jones (where the
11
The Jones Court also discussed whether a sentencing judge or a prosecuting attorney
could waive the Board’s confidentiality provision, and found there was no authority to do so.
Jones, 993 A.2d at 343. Thus, when a request is directed at the Board, documents authored by
either a sentencing judge or prosecuting attorney, once in the Board’s possession, are shielded
from disclosure under Section 305(a)(3) of the RTKL and the Board’s Confidentiality Regulation.
6
request was directed to the Board), the Confidentiality Regulation could not serve as
a basis to exempt from disclosure a records request directed to the DA’s Office. The
trial court agreed with the OOR’s reasoning, explaining:
The [DA’s Office] is a local agency subject to the RTKL
and subject to disclosure of public records in its
possession. . . . Records in the possession of such a local
agency are presumed public unless those same records
have been deemed exempt from disclosure under the
RTKL, or are protected as privileged. The statute does not
create an exemption from disclosure if the records in the
possession of the subject local agency have been
determined under the statute to be free from required
disclosure when those same documents are in the
possession of another state or local agency.
R.R. at 40-41.
This Court agrees with the OOR and the trial court that the Board’s
Confidentiality Regulation does not exempt records responsive to Webster’s
Request from disclosure. The plain language of the Confidentiality Regulation
makes records, reports, etc. in the Board’s custody or possession confidential. While
the Jones decision held that written parole recommendations by a sentencing judge
and prosecuting attorney were exempt from disclosure under the RTKL and the
Confidentiality Regulation, the DA’s Office’s reliance on this case is misplaced and
ignores the fact that the RTKL request in Jones was made to the Board.
As a general rule, courts do not have the power to ignore clear and
unambiguous statutory language in pursuit of a statute’s alleged or perceived
purpose. Dep’t of Transp. v. Taylor, 841 A.2d 108, 111-12 (Pa. 2004). The Statutory
Construction Act of 1972 (Statutory Construction Act)12 directs that, in construing
statutory language, “[w]ords and phrases shall be construed according to rules of
12
1 Pa.C.S. §§1501-1991.
7
grammar and according to their common and approved usage.” Section 1903 of the
Statutory Construction Act, 1 Pa.C.S. § 1903. Pursuant to Section 1921(c) of the
Statutory Construction Act, 1 Pa.C.S. § 1921(c), it is only when the words of a statute
“are not explicit” that a court may resort to other considerations, such as the statute’s
perceived “purpose,” in order to ascertain the legislative intent. Important here,
“[w]here the words of a statute are clear and free from ambiguity the legislative
intent is to be gleaned from those very words.” Pa. Fin. Responsibility Assigned
Claims Plan v. English, 664 A.2d 84, 87 (Pa. 1995).
Pennsylvania courts recognize that “[s]tatutory construction rules apply
equally to the interpretation of administrative regulations.” Wheeling-Pittsburgh
Steel Corp. v. Dep’t of Env’t Prot., 979 A.2d 931, 937 (Pa. Cmwlth. 2009). In this
case, the language of the Board’s Confidentiality Regulation is clear and
unambiguous—“[r]ecords, reports and other written things and information,
evaluations, opinions and voice recordings in the Board’s custody or possession,”
are private, confidential, and privileged. 37 Pa. Code § 61.2 (emphasis added). In
essence, the DA’s Office seeks to alter the plain language of the Confidentiality
Regulation by deleting the phrase “in the Board’s custody or possession” in order to
buttress its argument that parole-related records are confidential, regardless of what
agency possesses it. Clearly, the rules of statutory construction do not allow the
unambiguous language of the Board’s Confidentiality Regulation to be modified in
this way.
This end result is unfortunate, and largely a product of lackadaisical litigation
on behalf of the DA’s Office. Despite no prior case law directly on point, the DA’s
Office chose to litigate this novel issue by invoking a regulation promulgated by,
and solely applicable to, a separate agency. Notably absent was an invocation of
8
any of the statutory exemptions set forth in Section 708 of the RTKL, some of
which may have, if properly raised, shielded the documents responsive to the parole-
related Request from disclosure.
While the facts of this case may be novel, the practice of raising multiple
defenses in denying a RTKL records request is certainly not. This Court’s decision
in Coulter v. Pennsylvania Board of Probation and Parole, 48 A.3d 516 (Pa. 2012),
is especially illustrative. In Coulter, a requester submitted a request to the Board
seeking records and reports from agents that investigated her proposed parole home
plans.13 The Board denied the request on two separate bases. The Board first
asserted that the records sought were not “public” pursuant to Section 305(a)(3) of
the RTKL, citing the Board’s Confidentiality Regulation. 65 P.S. § 67.305(a)(3).
As a failsafe, the Board also invoked Section 305(a)(1) of the RTKL, arguing that
the request was statutorily exempt under the noncriminal investigation exemption
set forth in Section 708(b)(17). 65 P.S. §§ 67.305(a)(1), 67.708(b)(17). The
requester appealed the Board’s denial, arguing that the Confidentiality Regulation
was waived because the Board had disclosed the responsive documents to third
parties. The OOR rejected the requester’s argument and held that the requested
records were exempt from disclosure, and that the Board’s disclosure of such records
to third parties does not render them “public” under the RTKL. On further appeal,
this Court agreed with the OOR’s analysis. Notably, this Court also addressed the
Board’s failsafe argument, stating:
Even if we held that the Board was estopped from
claiming the documents were subject to disclosure under
65 P.S. § 67.305(a)(3), the information sought would still
13
A “Home Plan” is part of a parolee’s Plan of Supervision and helps determine where the
parolee will live while on parole. The “Home Plan” must be approved by the Board. See, e.g.,
Barge v. Pa. Bd. of Prob. & Parole, 39 A.3d 530 (Pa. Cmwlth. 2012).
9
not be subject to disclosure under Section 708(b)(17) of
the RTKL, which provides:
(b) Exceptions. Except as provided in subsections (c)
and (d), the following are exempt from access by a
requester under this act:
….
(17) A record of an agency relating to a noncriminal
investigation, including:
….
(ii) Investigative materials, notes, correspondence and
reports.
Under this provision, [requester] was not entitled to the
documents requested because the information requested
was records of a noncriminal investigation to determine
whether [the requester’s] [h]ome [p]lans were appropriate.
Coulter, 48 A.3d at 519. As the burden of proving that a record is exempt from
public access lies with the local agency, raising multiple bases when denying a
records request is commonplace. See, e.g., Vu v. Pa. Bd. of Prob. & Parole, 200
A.3d 627, 629 (Pa. Cmwlth. 2018) (defending a records request “inter alia” on the
basis of the Board’s Confidentiality Regulation); Davis v. Pa. Bd. of Prob. & Parole
(Pa. Cmwlth., No. 944 C.D. 2015, filed June 3, 2016)14 (defending a records request
on the basis of (1) the Board’s Confidentiality Regulation; (2) the criminal and
14
Unreported memorandum opinions of this Court filed after January 15, 2008, may be
cited for their persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210
Pa. Code § 69.414(a).
10
noncriminal investigative exceptions under the RTKL, 65 P.S. § 67.708(b)(16), (17);
and (3) the Criminal History Record Information Act, 18 Pa.C.S. § 9101-9183).
The DA’s Office here, however, chose to rationalize its denial of Webster’s
Request on one basis, which ultimately did not carry the day. Without the DA’s
Office invoking an alternate basis for denial, such as the RTKL’s statutory
exemptions, we do not opine on any hypothetical outcomes this Court could have
reached had this issue been litigated more tactically. As always, the Court remains
mindful of the serious policy concerns implicated in granting these types of records
requests under the RTKL. See Coulter, 48 A.3d at 519; Toland v. Pa. Bd. of Prob.
& Parole, 311 A.3d 649, 666 (Pa. Cmwlth. 2024). Nevertheless, we are constrained
to affirm the trial court’s order affirming the final determination of the OOR and
directing the DA’s Office to provide Webster with records responsive to the Request.
Webster’s Appeal
Next, we address Webster’s appeal of the trial court’s order denying his
motion for fees and costs. In his underlying motion, Webster relied on Section
1304(a) of the RTKL, which provides:
(a) Reversal of agency determination.--If a court
reverses the final determination of the appeals officer or
grants access to a record after a request for access was
deemed denied, the court may award reasonable attorney
fees and costs of litigation or an appropriate portion
thereof to a requester if the court finds either of the
following:
(1) the agency receiving the original request
willfully or with wanton disregard deprived the
requester of access to a public record subject to
access or otherwise acted in bad faith under the
provisions of this act; or
11
(2) the exemptions, exclusions or defenses asserted
by the agency in its final determination were not
based on a reasonable interpretation of law.
65 P.S. § 67.1304(a).
The trial court denied Webster’s motion for fees and costs, finding that neither
of the prerequisites set forth above were satisfied. The trial court held that the DA’s
Office denied Webster’s Request based on a good faith, reasonable interpretation of
the law. R.R. at 67. The trial court stressed that it “found that under existing
statutory and case law, the decision of the [OOR] should stand,” and that “there was
a reasonable basis upon which the [DA’s Office] is challenging the existing body of
law.” Id.
Before this Court, Webster raises six separate challenges to the trial court’s
attorney’s fees determination. Distilling these arguments together, Webster asserts
the DA’s Office did not appeal based on a good faith or reasonable interpretation of
the law and that the appeal was frivolous, thereby entitling him to attorney’s fees
and costs under the RTKL. The DA’s Office counters that the trial court’s opinion
reflects that its argument was neither meritless nor based on an unreasonable
interpretation of the law.
On review, we conclude that Webster is not entitled to claim attorney’s fees
for reasons not recognized below. He is not claiming he incurred the legal costs of
an attorney; rather, he has itemized his own time and is seeking to be reimbursed for
the time he has spent on this matter. However, it is beyond peradventure that a pro
se litigant may not make a claim for or be awarded attorney’s fees. Kanofsky v. Tax
Rev. Bd. (Pa. Cmwlth., No. 2740 C.D. 2015, filed January 5, 2017), slip op. at 9
(citing Westmoreland Cnty. Indus. Dev. Auth. v. Allegheny Cnty. Bd. of Prop.
Assessment, Appeals & Rev., 723 A.2d 1084, 1086-87 (Pa. Cmwlth. 1999)).
12
As to costs, we agree with the DA’s Office. While the Court is uninspired by
the DA’s Office’s litigation of this matter, nothing in the record or in this Court’s
review of applicable case law leads us to conclude that the DA’s Office acted in bad
faith or so unreasonably interpreted applicable law that it warrants costs. As
reflected in the OOR’s and trial court’s opinions, the DA’s Office raised reasonable
arguments forwarding its proposed interpretation of the Confidentiality Regulation.
Webster’s success on the merits does not entitle him to attorney’s fees and costs as
of course. Stated another way, the trial court’s rejection of the argument set forth
by the DA’s Office on appeal does not dictate the conclusion that it was somehow
frivolous or posited in bad faith.15 The trial court below did not err in declining to
award attorney’s fees and costs.
Conclusion
For the reasons set forth above, we affirm the trial court’s September 13, 2019
order affirming the final determination of the OOR. We are constrained to conclude
that because Webster’s Request was directed to the DA’s Office, responsive records
are not exempt from disclosure under Section 305(a)(3) of the RTKL because the
Board’s Confidentiality Regulation unambiguously shields only those documents in
the Board’s possession. In so holding, the Court emphasizes that this case is
factually and procedurally unique due to the DA’s Office’s failure to invoke any of
the statutory exemptions available to it under Section 708 the RTKL, which may or
may not have prevented disclosure on a separate basis.
15
To the extent Webster claims he is entitled to attorney’s fees pursuant to Pa.R.A.P. 2744,
we reject that argument for the same reasons set forth above.
13
We also affirm the trial court’s October 14, 2019 order, which properly denied
Webster’s motion for fees and costs.16
____________________________
MATTHEW S. WOLF, Judge
16
On March 4, 2020, Webster filed a “Motion to Correct the Deficient Record” (motion to
correct) with this Court. Therein, he alleged that the original record in this matter is missing two
items: “[Webster’s] 12/13/19 MOTION TO COMPEL COURT OFFICERS/SYSTEM AND
RELATED PERSONNEL TO USE PROPER PRIVILEGED MAIL PROCEDURES
PURSUANT TO D.O.C. POLICY” and the trial court’s “12/3/19 ORDER dismissing this motion.”
No answer was filed and by order dated April 23, 2020, we listed the motion to correct with the
merits. Our review of the record reflects that these items are indeed missing; however, because
they are not relevant to the issues raised in this appeal, we are not inclined to direct the trial court
to file a supplemental record at this stage of the proceedings. Accordingly, the motion to correct
is denied.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh County District : CASES CONSOLIDATED
Attorney’s Office, :
Appellant :
:
v. : No. 1444 C.D. 2019
:
William E. Webster, III :
William E. Webster III, :
Appellant :
:
v. : No. 154 C.D. 2020
:
Lehigh County District :
Attorney’s Office :
ORDER
AND NOW, this 20th day of August, 2024, the orders of the Court of
Common Pleas of Lehigh County entered September 13, 2019, and October 14,
2019, are AFFIRMED.
William E. Webster III’s “Motion to Correct the Deficient Record” is
DENIED.
__________________________________
MATTHEW S. WOLF, Judge