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Mitchell v. Office of Open Records

June 29, 2010

GEORGE E. MITCHELL JR., PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: February 19, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

George E. Mitchell, Jr., (Mitchell) petitions, pro se, for review of a determination of the Office of Open Records (Office) which denied Mitchell's appeal from the Pennsylvania State Police's (PSP) denial of Mitchell's request for records that show the arrival and departure times of officers in serving a search warrant, pursuant to the Right-to-Know Law (RTKL), 65 P.S. §§67.101- 67.3104.*fn1 We affirm.

On March 23, 2009, Mitchell, an inmate at the State Correctional Institution at Fayette, filed a request with the PSP seeking copies of any documents showing the time the officers arrived and departed from Mitchell's residence on April 11, 2006, in serving a search warrant on behalf of the Attorney General's Office.

On March 24, 2009, Jay Reader, Deputy Agency of Open Records Officer, informed Mitchell that the PSP would require an additional thirty (30) days to determine whether any of the requested records were "public" under the RTKL.

In a letter dated April 30, 2009, the PSP stated that they had only "identified a single responsive PSP criminal investigative record. However, RTKL expressly exempts criminal investigative records from public disclosure. Section 708 of the RTKL, 65 P.S. §67.708(b)(16). Furthermore, the Criminal History Records Information Act ("CHRIA"), [Act of July 16, 1979, P.L. 116, as amended,] 18 Pa. C.S. §§9101-9183, prohibits PSP from disclosing any investigative records and other protected information in its possession to anyone, except qualified criminal justice agents and agencies. §9106(c)(4)." Letter, at 2. The PSP further set forth a copy of the RTKL Field Liaison Officer for PSP Troop A-Greensburg Station, Lieutenant Gary L. Schuler's, verification which was executed on April 30, 2009. This verification set forth that Lieutenant Schuler thoroughly searched the records and only found a criminal investigative record, a copy of which he provided to the PSP. He found no other responsive records. Lieutenant Schuler further stated that any radio dispatch logs that were generated at the PSP are purged one year after their creation. Thus, any radio dispatch logs generated on April 11, 2006, no longer existed at the time of the request in March of 2009. The PSP denied Mitchell's request for access to records under the RTKL. Mitchell appealed to the Office.

The Office requested the PSP "advise [it of] what the record is." Office Letter, June 10, 2009. In response, the PSP submitted an affidavit of Jay Leader, Deputy Agency Open Records Officer. Officer Leader explained that the record in question was "a single-page Automated Incident Memo System (AIMS) query response dated March 23, 2009.." Affidavit, June 11, 2009, at 2. Officer Leader set forth the following:

8. This AIMS record contains facts regarding the involvement of PSP troopers in the execution of a search warrant on April 11, 2006:

a. By its content, the record manifestly pertains to a criminal investigation. Thus, I determined the record to be entirely exempt from public disclosure under 65 P.S. §67.708(b)(16)(ii), either as a criminal investigative report, as correspondence regarding a criminal investigation, or as other investigative material.

b. Because of its content, the disclosure of this record [would] obviously reveal the institution, progress or result of a criminal investigation. However, the record does not pertain to the filing of criminal charges. Accordingly, I also determined the record to be entirely exempt from public disclosure under 65 P.S. §67.708(b)(16)(vi)(A).

c. Finally, the content of this record is clearly "[i]nformation assembled as a result of the performance of an inquiry, formal and informal, into a criminal incident.," and thus, constitutes "investigative information," as defined by the.CHRIA..

Affidavit, at 2-3.

The Office determined that the record Mitchell requested would reveal the institution, progress or result ...


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