Department of the Auditor General v. Pennsylvania State Police

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent from the majority’s decision because I disagree that the information requested by the Auditor General — the names, addresses and release dates of individuals registered as sexual offenders with the Pennsylvania State Police (State Police) — is “investigative information” prohibited from disclosure to noncriminal justice agencies under the Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §§ 9101-9183.

In this case, the Auditor General requested from the State Police a list of the names, addresses and release dates of sexual offenders listed on what is commonly known as the Megan’s Law1 registry who were convicted between July 9, 2000 and June 10, 2003. The State Police denied the request citing Sections 9102 and 9106(c)(4) of the CHRIA, 18 Pa.C.S. § 9102 and 9106(c)(4), which disallow “investigative information” from being disseminated to anyone other than criminal justice agencies. The Auditor General filed a petition with this Court seeking a declaratory judgment and arguing that the requested information was not “investigative information” prohibited from disclosure under the CHRIA. The State Police filed an answer with new matter arguing that Megan’s Law did not authorize it to disclose the requested information to the Auditor General.

The majority agrees with the State Police and denies the Auditor General’s request for summary relief relying on both the CHRIA and Megan’s Law to determine that the requested information is “investigative information” and not available to the State Police. I disagree that the requested information is “investigative information” because the compiled list is a list of sex offenders who have already been convicted; therefore, no ongoing investigation is occurring and the list of the convicted sex offenders is a list of public record.

. There are three types of records that are kept by government agencies:

1) records that must be made public because they are subject to the Right-to-Know Act;2
(2) records that may be made public because they fall within the discretion of the public official to make them public because they either fall within an excep*85tion under the Right-to-Know Act or are otherwise not prohibited from being released; and
(3) those records that cannot be released because there is an express statutory prohibition against their release, i.e., social security numbers, criminal records and tax records.

Juniata Valley School District, 797 A.2d 428, 430 (Pa.Cmwlth.2002).

The State Police contend that the information requested falls within the third category of information because it is investigative information that it is prohibited from releasing under CHRIA. CHRIA defines “investigative information” as information assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing and may include modus operandi information. 18 Pa.C.S. § 9102. Under this definition, to be considered “investigative information” prohibited from dissemination, the information must be particular to an investigation into a particular crime. A list of persons convicted of sexual offenses are not part of any investigation of a particular crime, but merely a record of persons convicted of crimes as a result of convictions in a court of law.

Moreover, contrary to the position of the State Police, CHRIA specifically allows records of convictions to be disclosed. Section 9104 of that Act provides, in relevant part:

(a) General rule. — Except for the provisions of Subchapter B (relating to completeness and accuracy), Subchapter D (relating to security) and Subchapter F (relating to individual right of access and review), nothing in this chapter shall be construed to apply to:
(1)Original records of entry compiled chronologically, including, but not limited to, police blotters and press releases that contain criminal history record information and are disseminated contemporaneous with the incident.
(2) Any documents, records or indices prepared or maintained by or filed in any court of this Commonwealth, including but not limited to the minor judiciary.
(3) Posters, announcements or lists for identifying or apprehending fugitives or wanted persons.
(4) Announcements of executive clemency.
(b) Court dockets, police blotters and press releases. — Court dockets, police blotters and press releases and information contained therein shall, for the purpose of this chapter, be considered public records.
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(d) Certain disclosures authorized.- — ■ Nothing in this chapter shall prohibit a criminal justice agency from disclosing as individuars prior criminal activity to an individual or agency if the information disclosed is based on records set forth in subsection (a). (Emphasis added.)

42 Pa.C.S. §§ 9104(a), (b) and (d).

A list of individuals who have been convicted of committing sexual offenses can only be complied from information that is based on information that comes from a docket or indices kept by the courts which is specifically allowed, placing those types of records in the second category of public records that may be released, though not required, to the general public under the Right-to-Know Law. That type of information can be released at the discretion of the agency to anyone or be compelled to release them in response, as here, to allow an agency to carry out its legislatively mandated responsibilities.

*86Regarding Megan’s Law, while it does not specifically authorize the State Police from releasing the information, nothing in Megan’s Law prohibits the State Police from giving the Auditor General the information it seeks. Again, absent a prohibition, while the list may not have to be given to the public, like all information that is needed to perform an audit, it must be turned over to the Auditor General so that he can fulfill his responsibilities.3

Accordingly, for the above stated reasons, I dissent.

Judges McGINLEY and SMITH-RIB NER join in this dissenting opinion.

. The Act is actually titled the Registration of Sexual Offenders Act, 42 Pa.C.S. §§ 9791-9799.7.

. Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4. Under the Right-to-Know Act, public records are open for public inspection and examination.

. I note that the Auditor General has already agreed that he would not release the list, thereby ameliorating privacy concerns raised by the State Police.