LeGRANDE v. Department of Corrections

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

As noted by the Pennsylvania Supreme Court, DOC “[i]s an executive branch agency that is charged with faithfully implementing sentences imposed by the courts. As part of the executive branch, [DOC] lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions.” McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 450, 872 A.2d 1127, 1133 (2005). Indeed, an inmate possesses a protected liberty interest to be free from wrongful, prolonged incarceration, and the violation of this interest implicates both the Eighth Amendment’s proscription against cruel and unusual punishment and the Fourteenth Amendment’s due process guarantees. See, e.g., Davis v. Hall, 375 F.3d 703 (8th Cir.2004); Sample v. Diecks, 885 F.2d 1099 (3rd Cir.1989).

To this end, Section V of DOC Policy Number 11.5.11 states that “[i]t is the *951policy of [DOC] to maintain an accurate and up-to-date inmate record system that meets the needs of [DOC] in providing a base for its statistical system and in maintaining inmate sentence structures that comply with the mandates of the Court and the Commonwealth’s Sentencing Rules, Regulations, and Laws.” Accordingly, as stated in Section II, DOC promulgated Policy Number 11.5.1 to establish “[p]olicy and procedures for the operation of the inmate records office and the maintenance of inmate records in [DOC].” Moreover, Section III of Policy Number 11.5.1 specifically states “[t]his policy is applicable to all inmates and staff in all [DOC] facilities....” It was within this context and, under these provisions, that DOC developed the instant Sentence Computation Procedures Manual (Manual).

In short, in affirming DOC’s determination in this case, the Majority determines that the Manual does not constitute a “public record”, as defined in Section 1 of the statute commonly referred to as the Right to Know Law (Law)2, because:

“[T]he Manual falls under the rubric of work product since it contains the mental impressions of DOC attorneys regarding legal research and legal theories of sentencing law. Under LaVallef v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001) ], the Manual is, by definition, not a public record. In providing recommendations and advice on the state of sentencing law, the Manual is a legal opinion created by DOC attorneys and, under Arduinof v. Borough of Dunmore, 720 A.2d 827 (Pa.Cmwlth. 1998) ], is also exempted from the definition of a public record....”

Majority Opinion at 949 (footnote omitted).

However, the instant Manual, outlining the manner in which DOC performs its mandatory duty of interpreting and executing sentencing orders, affecting the constitutional and statutory rights of innumerable inmates, clearly constitutes a “public record” under the Law. See, e.g., Travaglia v. Department of Corrections, *952699 A.2d 1317, (Pa.Cmwlth.), petition for allowance of appeal denied, 550 Pa. 713, 705 A.2d 1313 (1997) (“DOC has acknowledged that it has a manual, which it regards as confidential, that describes in detail the actual procedures for lethal injection and also the attendant security measures. Details of the procedures by which DOC implements lethal injection necessarily affect the statutory and constitutional rights of the condemned.... Because most of the information Travag-lia requests concerning implementation of executions affects constitutional and statutory rights, the [Law] defines it to be a ‘public record’ that any citizen has a right to inspect, unless some statutory exception applies. DOC asserts that documents relating to the technique and manner of the lethal injection procedures are not within the general definition of public records because they set guidelines and goals, not obligations for its personnel.... The Court, however, rejects the notion that an agency may avoid disclosure of materials relating to performance of its mandatory duties by characterizing them as ‘suggestions’ or ‘goals’ that do not ‘fix’ any rights or duties of its personnel.”).3,4

*953Accordingly, unlike the Majority, I would reverse the order of DOC.

. An agency’s statement of policy has persuasive, but not binding, power if it tracks the meaning of the related statute. E.D. v. De*951partment of Public Welfare, 719 A.2d 384 (Pa. Cmwlth.1998). Thus, a "policy statement" is the agency's statutory interpretation which a court may accept or reject depending upon how accurately the agency’s interpretation effectuates the meaning of the statute. Chimen-ti v. Pennsylvania Department of Corrections, 720 A.2d 205 (Pa.Cmwlth. 1998), affd per curiam, 559 Pa. 379, 740 A.2d 1139 (1999).

. Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § 66.1. Specifically, Section 1(2) of the Law defines “public record” as follows:

(2) "Public Record.” 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: Provided, That the term "public records” shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person’s reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

65 P.S. § 66.1(2).

. It should be noted that, in Travaglia, this Court ultimately determined that the requested information should not be disclosed due to security and public health concerns. See Id. at 1322.

. The Majority attempts to distinguish the application of this Court’s holding in Travaglia on the basis that the Supreme Court’s subsequent opinion in LaValle somehow affects its authority. However, the instant Manual was the final product of the deliberative process within the operations of DOC. Under the explicit provisions of Policy Number 11.5.1, the Manual is applicable to all DOC employees and directs them on how to perform their mandatory duties. As a result, in light of the LaValle opinion, the Manual should be deemed to be a “public record” under the relevant provisions of the Law. See, e.g., Tribune-Review Publishing Company v. Department of Community and Economic Development, 580 Pa. 80, 92, 859 A.2d 1261, 1269 (2004) ("For the deliberative process privilege to apply, certain requirements must be met. First, the communication must have been made before the deliberative process was completed. Secondly, the communication must be deliberative in character. It must be ‘a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.’ [Commonwealth ex rel. Unified Judicial System v. Vartan, 557 Pa. 390, 401, 733 A.2d 1258,] 1263-1264 (internal quotations and citations omitted).”). See also Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) (“In deciding whether a document should be protected by the privilege^ under the relevant provisions of the federal Freedom of Information Act, 5 U.S.C. 552(b)(5),] we look to whether the document is ‘predecisional’ whether it was generated before the adoption of an agency policy and whether the document is 'deliberative' whether it reflects the give-and-take of the consultative process. The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency; 'Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.' We also ask whether the document is recommendatoiy in nature or is a draft of what will become a final document, and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another. Finally, even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the *953agency in its dealings with the public.”) (citation omitted).