# A.M. Johnson v. PSP (OOR)

> Commonwealth Court of Pennsylvania · August 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10512759

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** August 20, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** McCullough, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armoni Masud Johnson, :
Petitioner :
:
v. : No. 575 C.D. 2023
:
Pennsylvania State Police : Submitted: July 5, 2024
(Office of Open Records), :
Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 20, 2024
Armoni Masud Johnson (Requester), proceeding pro se, petitions for
review of the May 10, 2023 Final Determination of the Pennsylvania Office of Open
Records (OOR). The OOR denied Requester’s appeal from the Pennsylvania State
Police’s (PSP) March 15, 2023 denial of Requester’s Right-to-Know Law (RTKL)1
request for the property log record maintained by PSP for two mobile phones
confiscated in connection with PSP’s investigation of Requester’s alleged criminal
activity. The OOR concluded that PSP carried its burden to establish that the
requested record is exempt from disclosure pursuant to the criminal investigation
exemption found at Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16). Upon
review, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
On February 6, 2023, Requester submitted a RTKL request (Request)
to PSP in which he requested the “logg” sheet showing who “logged” two mobile

1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
phones into and out of the PSP’s property department from May 31, 2012, to
December 2, 2022 (Property Record). Requester attached to the Request another
PSP “property record” that appears to show the items confiscated from Requester,
including packets of suspected heroin, an amount of United States currency, and two
mobile phones. (Certified Record (C.R.), OOR Ex. 1, pp. 5-7.) The property record
attached to the Request includes an incident number of P01-0731383-C. Id., p. 7. It
also appears to have been marked with a court of common pleas docket number of
2023-0276.
After invoking a 30-day extension pursuant to Section 902(b)(2) of the
RTKL, 65 P.S. § 67.902(b)(2), PSP denied the Request by written response sent
March 15, 2023 (Response). Id., p. 9. In its Response, PSP advised Requester that
the Property Record is part of “Incident Report No. 0731383A” (Incident Report).
Id. PSP accordingly concluded that the Property Record was not subject to public
disclosure because (1) it was exempt pursuant to the criminal investigation
exemption, (2) it contained personal identifying information, see Section
708(b)(6)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(6)(i)(A); (3) it contained victim
information, see Section 708(b)(16)(v) of the RTKL, 65 P.S. § 67.708(b)(6)(v); and
(4) disclosing the report would violate 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. (C.R., Ex. 7, pp. 10-11.)2 PSP provided with its
Response a supporting verification signed by William A. Rozier, PSP’s Deputy

2
PSP also asserted that the Incident Report was not subject to disclosure as information
contained in a “police blotter” as that term is defined in 18 Pa. C.S. § 9102. See 65 P.S. §
67.708(b)(16).

2
Agency Open Records Officer for PSP (ORO Rozier).3 The verification attested
that PSP performed a search, located the Property Record, and concluded that it was
not subject to disclosure on the same grounds asserted by PSP in its Response. Id.,
pp. 13-14.
Requester appealed PSP’s denial of the Request to the OOR on April 5,
2023, arguing that PSP’s Response was retaliatory and that PSP wrongfully withheld
the Property Record. (C.R., OOR Ex. 1, pp. 2-3.) Requester attached to his appeal
a PSP “supplemental investigation report” for incident number “P1-
0731383A,”which indicates that certain evidence corresponding to this incident
number was signed out and submitted to PSP’s laboratory for testing. (C.R., OOR
Ex. 1, p. 4.) PSP submitted a position statement to the OOR accompanied by another
verification of ORO Rozier in which he pertinently attested, under penalty of
perjury,4 as follows:
9. In response to the [R]equest, PSP identified the
[Property Record] as being a component of [the Incident
Report] . . . .
10. I have personally [reviewed] [the Incident Report] and
found that it was created as the result of a complaint of
criminal activity[,] and the [Incident R]eport describes and
documents a PSP [t]rooper’s investigation into this
complaint.
11. [The Incident Report] and its components detail a PSP
investigation into a complaint of criminal activity. Thus,
the [Incident R]eport and each of its components is “[a]
record of an agency relating to or resulting in a criminal

3
Although the verification was signed by ORO Rozier, it is titled “Verification of Brittany
Sultzaberger, Deputy Agency Open Records Officer.” (C.R., OOR Ex. 7, p. 13.) Given the
contents of the verification and the record before the OOR, we conclude that this discrepancy was
a typographical error.

4
See 18 Pa. C.S. § 4904.

3
investigation,” which is exempt from public disclosure
under RTKL [S]ection []708(b)(16).
12. Furthermore:
• The [Incident R]eport contains “[c]omplaints
of potential criminal conduct other than a
private criminal complaint[,]” and, thus, is
exempt from public disclosure under RTKL
[S]ection []708(b)(16)(i)[;]
• Because it reflects the findings and
conclusions, as well as the actions,
observations[,] and notes of investigating
troopers, the [Incident R]eport’s components
constitute “[i]nvestigative materials, notes,
correspondence, . . . and reports,” all of which
are exempt from public disclosure under
RTKL [S]ection []708(b)(16)(ii)[;]
• In its entirety, as well as in its components, the
[Incident R]eport is “[a] record that, if
disclosed, would . . . [r]eveal the institution,
progress, or result of a criminal investigation,”
and, therefore, [is] exempt from public
disclosure under RTKL [S]ection
[]708(b)(16)(vi)(A)[;]
• The [Incident R]eport also contains personal
identifying information, including residential
addresses and the telephone numbers of
witnesses, all of which are exempt from public
disclosure under RTKL [S]ection
[]708(b)(6)(i)(A)[;]
• The [Incident R]eport[] “[i]nclude[s] . . .
victim information,” ([e.g.], the victim’s full
name, birth date, residential address and
telephone number) and, thus, is exempt from
public disclosure under RTKL [S]ection
[]708(b)(16)(v)[;]
• Yet, none of the [Incident R]eport’s
components comprise[] original records of

4
entry, a chronology of arrests, the
identification of arrested individuals, the
specification of criminal charges[,] or any
other “information contained in a police blotter
as defined in 18 Pa. C.S. § 9102” that would be
accessible to the public. [See 65 P.S. §
67.708(b)(16)].
13. Lastly, disclosing the [Incident R]eport or its
components to [] Requester would violate [CHRIA],
which prohibits criminal justice agencies from
disseminating investigative information, except to other
criminal justice agencies.
14. Accordingly, I withheld the responsive report and
its components from public disclosure.

(C.R., OOR Ex. 7, pp. 5-8) (some bracketing in original).5 From what we can glean
from Requester’s letter to the OOR, he argued that PSP and a district attorney’s
office were withholding exculpatory evidence, engaging in prosecutorial
misconduct, and violating Requester’s constitutional rights to equal protection and
due process. (C.R., OOR Ex. 8, p. 3.) Requester also argued that his criminal
counsel provided ineffective assistance. Id., p. 4.
The OOR issued its Final Determination on May 10, 2023, denying
Requester’s appeal. Relying principally on this Court’s recent unpublished decision
in Duiker v. Pennsylvania State Police (Pa. Cmwlth., No. 1481 C.D. 2021, filed
March 9, 2023), the OOR concluded that PSP had carried its burden to establish by
a preponderance of the evidence that the Property Record, as a component part of a
non-disclosable PSP incident report, was exempt from public disclosure pursuant to

5
Paragraph 5 of the verification indicates that it was executed in response to a RTKL appeal
filed by “Peter Rosenweig.” (C.R., OOR Ex. 7, p. 5, ¶ 5.) Given that all of the other information
in the verification concerns Requester’s Request to PSP, the reference to Peter Rosenweig clearly
was a typographical error.

5
Section 708(b)(16) of the RTKL. (OOR Final Determination, at 3-4.) The OOR
further concluded that the Report was not subject to redaction. Id. at 4.6
Requester now petitions for review in this Court, arguing, inter alia,7
that PSP is withholding exculpatory evidence in violation of his First Amendment
rights, U.S. Const. amend. I.8 Requester asks the Court to (1) direct disclosure of
the Property Record, (2) direct that $462.00 be returned to him with interest, and (3)
deem PSP’s actions to be prosecutorial misconduct. (Requester’s Br. at 7.)
II. DISCUSSION9
The RTKL mandates that a Commonwealth agency, here, PSP, provide
access to public records when requested. See Section 301 of the RTKL, 65 P.S. §
67.301. The RTKL defines a “public record” as a “record . . . of a Commonwealth
or local agency that: (1) is not exempt under [S]ection 708; (2) is not exempt from
being disclosed under any other Federal or State law or regulation or judicial order

6
The OOR did not address the other grounds for nondisclosure relied upon by PSP.

7
Requester also asserts various other claims unrelated to his RTKL Request.

8
Requester alleges in his brief that he was arrested on criminal charges on May 31, 2012,
at which time the two subject mobile phones were confiscated. He further alleges that his criminal
case was dismissed in March 2016, at which time his personal property was to be returned to him.
Requester did not ultimately retrieve the property, including the two mobile phones, until
December 2022. Thereafter, Requester alleges that he discovered that the phones had been
unlawfully searched in violation of his Fourth Amendment rights, U.S. Const. amend. IV, and that
certain exculpatory evidence on the phones had been erased. Requester submitted the Request
seeking to determine who had possession of the two mobile phones while they were housed with
PSP. (Requester Br., at 4-6.)

9
In appeals from OOR determinations regarding RTKL requests to Commonwealth
agencies, our standard of review is de novo, and our scope of review is plenary. Pennsylvania
State Police v. McGill, 83 A.3d 476, 479 n.3 (Pa. Cmwlth. 2014) (citing Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013)).

6
or decree; [and] (3) is not protected by a privilege.” Section 102 of the RTKL, 65
P.S. § 67.102. The RTKL defines “record” as follows:
Information, regardless of physical form or
characteristics, that documents a transaction or activity of
an agency and that is created, received or retained pursuant
to law or in connection with a transaction, business or
activity of the agency. The term includes a document,
paper, letter, map, book, tape, photograph, film or sound
recording, information stored or maintained electronically
and a data-processed or image-processed document.

Id.
Thus, because records in the possession of Commonwealth agencies are
presumed to be public, the “[b]urden of proving that a record of a Commonwealth
agency . . . is exempt from public access shall be on the Commonwealth agency . . .
receiving a request by a preponderance of the evidence.” Section 708(a)(1) of the
RTKL, 65 P.S. § 67.708(a)(1). An agency can meet this burden through the
submission of affidavits. Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa.
Cmwlth. 2010). This Court has approved of the OOR’s consideration of testimonial
affidavits in rendering its decisions, see, e.g., Sherry v. Radnor Township School
District, 20 A.3d 515, 520 (Pa. Cmwlth. 2011), and we further have specifically held
that a credible testimonial affidavit of a deputy open records officer of PSP is
sufficient to support a claimed exemption. Mitchell v. Office of Open Records, 997
A.2d 1262 (Pa. Cmwlth. 2010). Finally, we interpret the RTKL’s exemptions
consistently with its objective, “which is to empower citizens by affording them
access to information concerning the activities of their government.” Pennsylvania
State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017) (quoting SWB Yankees LLC v.
Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012). Exemptions to disclosure therefore

7
are construed strictly, lest they subvert this purpose. American Civil Liberties Union
v. Pennsylvania State Police, 232 A.3d 654, 656-57 (Pa. 2020).
Relevant to this appeal, the RTKL exempts the following records from
disclosure:
(16) A record of an agency relating to or resulting in a
criminal investigation, including:
(i) Complaints of potential criminal conduct other than
a private criminal complaint.
(ii) Investigative materials, notes, correspondence,
videos and reports.
(iii) A record that includes the identity of a confidential
source or the identity of a suspect who has not been
charged with an offense to whom confidentiality has
been promised.
(iv) A record that includes information made
confidential by law or court order.
(v) Victim information, including any information that
would jeopardize the safety of the victim.
(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.
(B) Deprive a person of the right to a fair trial or an
impartial adjudication.
(C) Impair the ability to locate a defendant or
codefendant.
(D) Hinder an agency’s ability to secure an arrest,
prosecution or conviction.
(E) Endanger the life or physical safety of an
individual.
This paragraph shall not apply to information contained in
a police blotter as defined in 18 Pa.C.S. § 9102 (relating to

8
definitions) and utilized or maintained by [PSP], local,
campus, transit or port authority police department or
other law enforcement agency or in a traffic report except
as provided under 75 Pa.C.S. § 3754(b) (relating to
accident prevention investigations).

65 P.S. § 67.708(b)(16). Police incident reports, as with criminal investigative
reports, are investigative materials and fall within the RTKL’s investigative
exemption at Section 708(b)(16)(ii). Pennsylvania State Police v. Office of Open
Records, 5 A.3d 473, 479 (Pa. Cmwlth. 2010) (PSP). Because investigative
materials fall within the exemption, investigative materials are not public records
and, therefore, are not subject to disclosure. Id. at 479. See also Hunsicker v.
Pennsylvania State Police, 93 A.3d 911, 913 (Pa. Cmwlth. 2014) (“[N]o matter what
is contained in an incident report, incident reports are considered investigative
materials and are covered by [the criminal investigation] exemption.”). Further,
where the criminal investigation exemption applies, the entire investigative report
falls under the exemption and is not subject to public disclosure. Hunsicker, 93 A.3d
at 913.
Recently, in Castillo v. Pennsylvania State Police (Office of Open
Records), 310 A.3d 831 (Pa. Cmwlth. 2024), this Court considered the application
of the criminal investigation exemption as it applies to PSP incident reports and their
contents. In Castillo, the requester submitted a RTKL request to PSP seeking
production of records related to his criminal conviction, the sentence for which he
had completed. Id. at 832. In response, PSP identified as responsive a 58-page
incident report in its possession that detailed its investigation into a criminal
complaint. Id. at 833. PSP denied the RTKL request, concluding that the report was
not subject to disclosure pursuant to Section 708(b)(16) of the RTKL and CHRIA.
Id. On appeal to the OOR, PSP submitted a verification of ORO Rozier, who attested

9
that the requested report “reflected the findings, conclusions, actions, and
observations of the investigating PSP members taken during the investigation into a
criminal complaint, as well as information regarding the institution, progress, or
result of a criminal investigation.” Id. The OOR agreed and found that PSP carried
its burden to establish that the report was exempt from disclosure pursuant to Section
708(b)(16) of the RTKL. Id.
On appeal to this Court, the requester in Castillo argued that the PSP
wrongfully withheld the report, arguing that the criminal investigation exemption no
longer applies to closed criminal cases. In the alternative, the requester sought
production of all non-investigative portions of the report with appropriate redactions
of investigative material. Id. Relying principally on our decision in PSP, 5 A.3d at
479, we concluded that the entire incident report possessed by PSP was not subject
to disclosure, reasoning as follows:
[T]he [i]ncident [r]eport at issue here is not a public record
subject to disclosure. According to the [v]erification,
[ORO] Rozier attested that the [i]ncident [r]eport contains
“investigative information” including
the findings, conclusions, actions, and
observations of investigating PSP members,
including Trooper Maguire, taken during the
investigation into this criminal matter. In
addition to containing personal identification
information and investigative materials, this
report - based upon its content - is a PSP
record that, if disclosed, would reveal the
institution, progress or result of this criminal
investigation.
In addition, [ORO] Rozier attested that the [i]ncident
[r]eport is not a chronology of arrests that would otherwise
qualify for disclosure as a “police blotter.” Upon review,
PSP’s evidence established, by a preponderance of the

10
evidence, that the [i]ncident [r]eport documented a
criminal investigation and, therefore, qualified for
exemption from disclosure.
Although we recognize that the criminal action has long
since concluded, and [the r]equester has completed his
sentence, the status or “staleness” of a criminal matter is
not relevant for disclosure purposes. To withhold a record
under Section 708(b)(16), PSP only needed to show that
the record related to a criminal investigation, period.
Finally, we decline [the r]equester’s redaction request.
“[W]here a record falls within an exemption under Section
708(b), it is not a public record as defined by the RTKL
and an agency is not required to redact the record.” PSP,
5 A.3d at 481; accord Heavens v. Department of
Environmental Protection, 65 A.3d 1069, 1077 (Pa.
Cmwlth. 2013); Department of Health v. Office of Open
Records, 4 A.3d 803, 815 (Pa. Cmwlth. 2010).
Id. at 835-36 (some internal citations omitted).
Likewise here, we agree with the OOR that the Property Record sought
by Requester is exempt from disclosure pursuant to Section 708(b)(16) of the RTKL.
ORO Rozier attested in his verification that the Property Record was a component
part of the Incident Report, the contents of which relate to PSP’s criminal
investigation into Requester’s alleged criminal activity. We have not discovered in
the record any evidence that would undermine or call into question the veracity or
accurateness of ORO Rozier’s verification; nor has Requester identified any
applicable exceptions to the criminal investigation exemption that would apply.
Moreover, the fact that Requester may have in his possession certain portions of the
Incident Report is of no moment; Requester very well may have obtained the
documents during discovery in his criminal case or elsewise. That fact does not,
however, make the entire Incident Report, including the Property Record, subject to
public disclosure under the RTKL. See Hunsicker, 93 A.3d at 913 (merely because

11
a requester purportedly knows some of the information contained in withheld
documents is irrelevant to whether they are subject to disclosure under the RTKL).
Finally, the fact that Requester’s criminal case and the associated investigation
concluded years ago does not render the criminal investigation exemption presently
inapplicable. Castillo, 310 A.3d at 835.
We therefore conclude that PSP has carried its burden to establish that
the Property Record is a component part of a PSP incident report that, under our
precedents, is exempted in total from public disclosure pursuant to Section
708(b)(16) of the RTKL. We accordingly affirm the OOR’s Final Determination.

________________________________
PATRICIA A. McCULLOUGH, Judge

12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armoni Masud Johnson, :
Petitioner :
:
v. : No. 575 C.D. 2023
:
Pennsylvania State Police :
(Office of Open Records), :
Respondent :

ORDER

AND NOW, this 20th day of August, 2024, the May 10, 2023 Final
Determination of the Office of Open Records is hereby AFFIRMED.

________________________________
PATRICIA A. McCULLOUGH, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10512759. Public record. Not legal advice.