Administrative and criminal investigations of sexual abuse (Department of Corrections)

Dear Mr. Feathers,

This email acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on February 12, 2014.

Your requests for “All administrative investigations since Aug. 20, 2012 into allegations of sexual abuse in correctional facilities administered by your agency” and “All criminal investigations since Aug. 20, 2012 of allegations of sexual abuse in correctional facilities administered by your agency” are denied for the following reasons:

• The requested records fall within the personal security exemption of the RTKL. 65 P.S. § 67.708(b)(1)(ii). That section exempts from access any record the disclosure of which would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual. Id. See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa. Cmwlth. 1998); Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

• The requested records fall within an exemption of the RTKL. Specifically, the RTKL excludes records maintained by an agency in connection with law enforcement or other public safety activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or a public protection activity. 65 P.S. § 67.708(b)(2). The requested records are records maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates. The disclosure of the requested records would threaten public safety and the Department’s public protection activities in maintaining safe and secure correctional institutions by allowing inmates or others to access information that can be used to undermine the Department’s security procedures. Therefore, disclosure of these types of records is excluded under the RTKL. Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

• The requested records fall within the criminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to or resulting in a criminal investigation, including, but not limited to: complaints of potential criminal conduct other than a private criminal complaint; investigative materials, notes, correspondence, videos and reports; records that include 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; records that includes information made confidential by law or court order; victim information, including any information that would jeopardize the safety of the victim; and records that, if disclosed, would reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges, deprive a person of the right to a fair trial or an impartial adjudication, impair the ability to locate a defendant or codefendant, hinder an agency's ability to secure an arrest, prosecution or conviction or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(16). Your request implicates such information and access is denied.

• The requested records fall within the noncriminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to a noncriminal investigation, including, but not limited to: complaints submitted to an agency; investigative materials, notes, correspondence and reports; records that include the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law; records that include information made confidential by law; work papers underlying an audit; and records that, if disclosed, would reveal the institution, progress or result of an agency investigation, deprive a person of the right to an impartial adjudication; constitute an unwarranted invasion of privacy, hinder an agency's ability to secure an administrative or civil sanction, or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(17). See Amro v Office of AG, 783 A.2d 897, (Pa. Cmwlth. 2001); Senk v. Commonwealth, 521 A.2d 532 (Pa. Cmwlth. 1987). Your request implicates such information and access is denied.

• The RTKL exempts records of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers' compensation and unemployment compensation; or related information that would disclose individually identifiable health information. 65 P.S. § 67.708(b)(5). Hunt v. Pennsylvania Department of Corrections, 698 A.2d 147, 150 (Pa.Cmwlth. 1997); Neyhart v Department of Corrections, 721 A.2d 391 (Pa.Cmwlth. 1998). Your request implicates such records and access is denied. ). Please note that the department policy does allow inmates to access specific staff members to discuss medical records and medical issues. Please refer to DC-ADM 003 for the procedures to make such a request or for further information.

Your request for a fee waiver is denied for the following reason:

• The Department has declined to waive duplication fees in this case. Current economic circumstances and the lack of funding dedicated to the cost of fulfilling RTKL requests make a fee waiver under 65 P.S. § 1307(f) inappropriate in this case.

You have a right to appeal this denial of information in writing to Terry Mutchler, Executive Director, Office of Open Records (OOR), Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, Pennsylvania 17120. If you choose to file an appeal you must do so within 15 business days of the mailing date of this response and send to the OOR:

1) this response; 2) your request; and 3) the reason why you think the agency is wrong in its reasons for saying that the record is not public (a statement that addresses any ground stated by the agency for the denial). If the agency gave several reasons why the record is not public, state which ones you think were wrong.

Also, the OOR has an appeal form available on the OOR website at:

https://www.dced.state.pa.us/public/oor/appealformgeneral.pdf.

Sincerely,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA  17050
Phone:  717.728.7770 | Fax:  717.728.0312  
www.cor.state.pa.us

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