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WILLIAM H. MITMAN v. COUNTY COMMISSIONERS CHESTER COUNTY (12/16/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 16, 1980.

WILLIAM H. MITMAN, JR., ESQUIRE, APPELLANT
v.
COUNTY COMMISSIONERS OF CHESTER COUNTY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Chester County in the case of William H. Mitman, Jr., Esquire v. County Commissioners of Chester County et al., No. 202-P Misc. Docket, 1979.

COUNSEL

William H. Mitman, Jr., appellant, for himself.

John S. Halsted, with him Paula F. Francisco, for appellee.

President Judge Crumlish and Judges Mencer, Rogers, MacPhail and Palladino. Judges Wilkinson, Jr., Blatt, Craig and Williams, Jr. did not participate. Opinion by Judge Palladino. Concurring Opinion by Judge Rogers. President Judge Crumlish joins in concurring opinion.

Author: Palladino

[ 55 Pa. Commw. Page 360]

The District Attorney office of Chester County stores in the County Data Processing Center a series of computer tapes known as the "history file". The history file contains information on every closed criminal case in the county dating back to 1972 and includes the name of the accused, the date of the complaint, bail information, chronological information as to the events that took place during the life of the case, the entry of appearance of public defenders and defense counsel, the assignment of the assistant district attorney and/or the "trial team" handling the prosecution, and the final disposition of the case. In May 1979*fn1 appellant requested from the district attorney a history file printout of all the information with respect to all the cases assigned to a particular assistant district attorney. The district attorney refused the request. Pursuant to Section 4 of the Act of June 21, 1957 (Right-To-Know Act), P.L. 390, as amended, 65 P.S. § 66.4, an appeal was taken to the court of common pleas. Holding that the information requested is not a "public record" as defined in Section 1(2) of the Right-To-Know Act, 65 P.S. § 66.1(2), the lower court denied the appeal.

The focus of the parties is obviously on the assignment of assistant district attorneys to particular cases. The question before the Court is whether the county history file, especially information relating to the assignment of assistant district attorneys to specific

[ 55 Pa. Commw. Page 361]

    cases, is a public record under the Right-To-Know Act and thus subject to public inspection.

Section 1(2) of the Right-To-Know Act defines public record as in pertinent part:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons. . . .

65 P.S. § 66.1(2).

Emphasizing that a "broad construction adheres . . . to an initial determination that a document is a 'public record'", Marvel v. Dalrymple, 38 Pa. Commonwealth Ct. 67, 72, 393 A.2d 494, 497 (1978), appellant argues that the information sought is evidence of a "decision" reached by an "agency", the District Attorney office, and fixes the duties of a particular person, to wit, an assistant district attorney.

Since it is apparent that the history file is not an "account, voucher or contract", the definition's "minute, order or decision . . . fixing the personal or property rights, privileges, immunities, duties or obligations" language must be considered. That phrase is to be read as including, but not limited to, "decisions which establish, alter, abolish or deny rights, privileges, immunities, duties or obligations." Lamolinara v. Barger, 30 Pa. Commonwealth Ct. 307, 311, 373 A.2d 788, 790 (1977). We cannot say that the assignment of an assistant district attorney to a specific case established, altered, abolished or denied any duties of that assistant district attorney.*fn2 His duties were established

[ 55 Pa. Commw. Page 362]

    when he accepted the position with the office; only an opportunity for the application of his skills, talents and judgment arises by the case assignment.*fn3

Our inquiry does not end there, however, "[W]e believe the legislature intended the generic definition of a public record contained within the Right-To-Know Act to incorporate by implication those specific definitions of 'public record' contained in statutes allowing for public access to particular documents of particular agencies." Marvel, supra at 75, 393 A.2d at 498.

[ 55 Pa. Commw. Page 363]

Under Section 11 of the Criminal History Record Information Act (CHRI Act), 18 Pa. C.S. § 9111, criminal justice agencies (including District Attorney offices) have a duty to maintain a criminal history record information. The CHRI Act defines criminal history record information as, in pertinent part, "[i]nformation collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and any dispositions arising therefrom." 18 Pa. C.S. § 9102.

Insofar as the history file contains information relating to the name of the accused, the date of the complaint, docket entries, and the disposition of the case, it is to that extent criminal history record information and, pursuant to Section 21(b)(2) of the CHRI Act, 18 Pa. C.S. § 9121(b)(2),*fn4 subject to appellant's examination. However, the history file's notations of assistant district attorney assignments do not fit within the definition of criminal history record information. Therefor, with respect to those history file notations, the CHRI Act's provisions for dissemination do not come into play for purposes of the Right-To-Know Act.

Accordingly, we will enter the following

Order

And Now, December 16, 1980, the order of the Court of Common Pleas of Chester County, docketed to Civil Action No. 202-P Misc. Term 1979, dated August 23, 1979, denying the appeal of William H. Mitman, Jr., and discharging the Rule to Show Cause granted July 6, 1979, is affirmed.

Disposition

Affirmed.

[ 55 Pa. Commw. Page 364]

Concurring Opinion by Judge Rogers:

I disagree with the majority's holding that the records sought by the appellant were not public records as generally defined by Section (2) of the (Right-to Know) Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § 66.1(2). I can discern no significant difference between the information here sought and that obtained as the result of our holdings in Young v. Armstrong School District, 21 Pa. Commonwealth Ct. 203, 344 A.2d 738 (1975), and Friedman v. Fumo, 9 Pa. Commonwealth Ct. 609, 309 A.2d 75 (1973), both being cited in note 3 of the majority opinion. However, I concur in the result because the records sought by the appellant, described by the majority as "a history file printout of all the information with respect to all the cases assigned to a particular assistant district attorney", are material "access to . . . which is prohibited, restricted or forbidden by statute law" specifically excepted from the definition under a proviso of Section 66.1.

The records sought by the appellant clearly comprise criminal history record information as defined in the Criminal History Record Information Act at 18 Pa. C.S. § 9102. As such, their dissemination to a non-criminal justice agency is restricted by 18 Pa. C.S. § 9121(b)(2) which requires the extraction from case histories of any information relating to the initiation of criminal proceedings where there is a disposition of acquittal, dismissal or withdrawal of charges, the entry of a nolle prosequi, an indefinite postponement, or where the individual has otherwise been found not guilty. The appellant was clearly not entitled to "all the information with respect to all the cases assigned to a particular assistant district attorney", his opponent in a race for the office of District Attorney. Indeed, the infomation which he was really seeking -- of his opponent's apparent failures as a

[ 55 Pa. Commw. Page 365]

    prosecutor -- was exactly what was restricted. I think that his request, as made, was properly refused.


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