June 14, 2012
JEAN COULTER, PETITIONER
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
The opinion of the court was delivered by: Dan Pellegrini, President Judge
Submitted: May 25, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY PRESIDENT JUDGE PELLEGRINI
Jean Coulter (Coulter) has filed a pro se appeal from the final determination of the Office of Open Records (OOR) finding that the Pennsylvania Board of Probation and Parole (Board) met its burden of proving that the records she requested relative to her "Home Plans" were exempt from disclosure under the Right-To-Know Law (RTKL)*fn1 because they were not public records. For the reasons that follow, we affirm the OOR's decision.
Coulter is currently on parole. On October 6, 2011, Coulter submitted a RTKL request to the Board seeking "Home Plan"*fn2 records which she had submitted to Board agents relating to the investigation of residences at which she had sought to live.*fn3 The request specified:
I am looking for records related to ALL of the Home Plans submitted in my case. I have submitted multiple Home Plans, and they have been rejected. I am asking to see the ORIGINAL records and reports from the Investigating Agents, as well as versions of the records provided to their Supervisors-and the final records which were submitted to my local agent.
(Original Record at Tab 1, p. 1.) The Board denied her request by letter dated October 14, 2011, stating that the records she sought were not "public" records pursuant to:
65 P.S. §67.305(a)(3)*fn4 -- Records, reports, or 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. See 37 Pa. Code §61.2;*fn5 and
65 P.S. §67.305(a)(1)*fn6 because they are related to the Board's duties in conducting non-criminal investigation information. See 65 P.S. §67.708(b)(17).*fn7
Coulter appealed this determination to the OOR arguing that the records were not private and confidential because she believed their contents had been released to third parties.*fn8
By final determination issued on November 23, 2011, the OOR denied the appeal after finding that the requested records were protected by the Board's regulation at 37 Pa. Code §61.2 because the records contained in Coulter's request were part of her parole file. The OOR further found that the Board had not waived any argument that the records were confidential just because some of the information may have been released to third parties stating:
[A]n agency has the authority to disclose an otherwise exempt record under the RTKL. See 65 P.S. §67.506(c); see also Sarr v. Sexual Offender Assessment Board. OOR Dkt. AP 2009-0958, 2009 PA O.O.R.D. LEXIS 740("If the agency chooses to exercise its discretion to release this report, it has authority under the law to do so. Otherwise, the . agency is permitted to withhold release of this record."). Therefore, the fact that the Board may have disclosed otherwise exempt records to a third party does not make those records public under the RTKL. As the requested records are exempt under the RTKL pursuant to the Code, the OOR does not need to address the other exemptions raised by the Board.
(OOR's November 23, 2011 decision at 4, Original Record at Tab 8.) This appeal by Coulter followed.*fn9
Not disputing that the records are exempt from disclosure under 65 P.S. §67.305(a)(3) because 37 Pa. Code §61.2 makes records touching on matters concerning a probationer or parolee private, Coulter first contends that the Board is estopped from arguing that her Home Plans are not subject to disclosure because the Board previously released information regarding her file to third parties. As a result, she contends the Board is barred from asserting that the records are private, confidential and privileged under 37 Pa. Code §61.2. Because providers have been given information from her files for rejection of her Home Plan, Coulter argues that she should also be given access to her files so that she can find out the real reasons why the Home Plans have been rejected in order to assist her with obtaining Board approval of a subsequent Home Plan.*fn10
The Board, however, contends that it has never released any documents related to Coulter's parole, e.g., records of confidentiality, but only some information from Coulter's Home Plans to ascertain the appropriateness of her choice of residence. Because the Board necessarily has to release information to make determinations, even if the doctrine of estoppel had any applicability, it is not made out here because the documents sought were not released. Moreover, estoppel as a doctrine does not apply to RTKL requests because whether a document is a public document or exempt, that character does not change just because the agency releases some information contained in the document. We note that while Coulter is requesting her own Home Plans, if all Home Plans were considered public records, they would be open to the entire public at large which could have adverse effects on all parolees.
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 not be subject to disclosure under Section 708(17)(b) of the RTKL, 65 P.S. §67.708(17)(b), 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 non-criminal investigation, including:
(ii) Investigative materials, notes, correspondence and reports.
Under this provision, Coulter was not entitled to the documents requested because the information requested was records of a non-criminal investigation to determine whether Coulter's Home Plans were appropriate.
Accordingly, the order of the OOR is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jean Coulter, Petitioner v. Pennsylvania Board of Probation and : Parole, : Respondent :
No. 2358 C.D. 2011 :
ORDER AND NOW, this 14th day of June, 2012, the order of the Office of Open Records, dated November 23, 2011, is affirmed.
DAN PELLEGRINI, President Judge