T. Mezzacappa v. Northampton County ( 2023 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Tricia Mezzacappa                          :
    :
    v.                                  : No. 1312 C.D. 2021
    :
    Northampton County,                        :
    Appellant                  : Submitted: August 5, 2022
    BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ELLEN CEISLER, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE CEISLER                                                    FILED: April 6, 2023
    Northampton County (County) appeals from the decision of the Court of
    Common Pleas of Northampton County (Trial Court) affirming a final determination
    by the Office of Open Records (Open Records), which directed the County to
    comply with a request for records pursuant to the Right-to-Know Law (RTKL).1 The
    request called for mug shots taken of two named persons allegedly detained at the
    Northampton County Prison (Prison). The County maintains that the records are
    exempt from release by the Criminal History Record Information Act (CHRIA), 18
    Pa.C.S. §§ 9101-9183, as well as the RTKL itself, and that the Trial Court failed to
    give proper consideration to the difficulties of fulfilling the request.
    Patricia Mezzacappa (Requester) submitted her request for the two mug shots
    on November 9, 2020. Reproduced Record (R.R.) at 8a. Following a 30-day
    1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104. One of Open Records’ duties
    under the RTKL is to assign appeals officers to review, when challenged, decisions by local
    agencies in response to RTKL requests and issue orders and opinions on those challenges.
    Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 
    13 A.3d 1025
    , 1027 n.1 (Pa.
    Cmwlth. 2011).
    extension,2 the County issued a denial of the request on December 15, 2020. 
    Id.
    Requester then submitted a second RTKL request on December 28, 2020, asking for
    mug shots of everyone admitted to the Prison from October 1, 2020, until the date of
    the request. That request was also denied. See Mezzacappa v. Northampton County
    (Pa. Cmwlth., No. 1229 C.D. 2021, filed April 6, 2023) (Mezzacappa II).
    Requester appealed from both denials separately, Open Records granted both
    appeals separately, and the County appealed from each determination separately to
    the Trial Court.3 The Trial Court then affirmed Open Records’ determinations with
    separate orders, and the matters have consequently reached this Court as separate
    cases. However, the underlying facts and legal issues are substantially the same. In
    Mezzacappa II, we held that the requested mug shots are not exempt from release
    under either CHRIA or the RTKL’s own exceptions (provided in Section 708 of the
    RTKL, 65 P.S. § 67.708), and must therefore be released. For the reasons set forth
    in that opinion, we affirm the Trial Court’s order.
    ____________________________
    ELLEN CEISLER, Judge
    2
    Under certain circumstances, Section 902(a)-(b) permits an agency to extend its response
    time to a RTK request by 30 days with written notice to the requester. 65 P.S. § 67.902(a)-(b).
    3
    For reasons not made clear in the record, the appeal from the determination involving the
    later request was placed on the Trial Court’s docket first.
    2
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Tricia Mezzacappa                  :
    :
    v.                            : No. 1312 C.D. 2021
    :
    Northampton County,                :
    Appellant          :
    ORDER
    AND NOW, this 6th day of April, 2023, the order of the Court of Common
    Pleas of Northampton County in the above-captioned matter, dated October 26,
    2021, is hereby AFFIRMED.
    ____________________________
    ELLEN CEISLER, Judge
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Tricia Mezzacappa                           :
    :
    v.                           :   No. 1312 C.D. 2021
    :
    Northampton County,                         :   Submitted: August 5, 2022
    Appellant                   :
    BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE ELLEN CEISLER, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    DISSENTING OPINION
    BY JUDGE McCULLOUGH                                     FILED: April 6, 2023
    Respectfully, I must dissent. The Criminal History Record Information
    Act’s (CHRIA)1 definition of “criminal history record information” includes “mug
    shots” because they are “identifiable descriptions.” CHRIA prohibits dissemination
    of certain criminal history record information to “an individual or non-criminal
    justice agency.” 18 Pa. C.S. § 9121. CHRIA defines “criminal history record
    information” in the following way:
    Information collected by criminal justice agencies
    concerning individuals, and arising from the initiation of a
    criminal proceeding, consisting of identifiable
    descriptions, dates and notations of arrests, indictments,
    informations or other formal criminal charges and any
    dispositions arising therefrom. The term does not include
    intelligence information, investigative information or
    treatment information, including medical and
    1
    18 Pa. C.S. §§ 9101-9183.
    psychological information, or information and records
    specified in section 9104 (relating to scope).
    18 Pa. C.S. § 9102 (emphasis added).
    The Pennsylvania Attorney General has published an extensive CHRIA
    guide that outlines the policies and procedures. See Commonwealth of Pennsylvania
    Office of Attorney General, Criminal History Record Information Act Handbook
    (7th ed. 2013) (hereinafter “CHRIA Handbook”).            The Attorney General’s
    interpretation is “entitled to great weight.” McDowell v. Good Chevrolet-Cadillac,
    Inc., 
    154 A.2d 497
     (Pa. 1959) (citing Federal Deposit Ins. Corp. v. Board of Finance
    and Revenue, 
    84 A.2d 495
     (Pa. 1951)). Tellingly, the CHRIA Handbook notes that
    criminal history record information “can be contained on a ‘rap sheet,’ photograph
    ‘mug shot,’ fingerprint cards, and reports,” and notes that “[t]his is not a complete
    list but some of the more common places to find criminal history record
    information.” Id. at 5 (emphasis added).
    The Majority Opinion concludes that mugshots do not constitute
    “identifiable descriptions” because the word “description” is most often used in
    reference to written or spoken language. In my view, the Majority Opinion’s
    interpretation is much too narrow and leads to unreasonable results. Pennsylvania’s
    Statutory Construction Act of 1972 directs that a court should presume that the
    legislature did not intend a result that is “absurd, impossible of execution or
    unreasonable.” 1 Pa. C.S. §§ 1922(1).       In enacting CHRIA, the Pennsylvania
    legislature sought, inter alia, “to protect individual privacy and dignity.” See Taha
    v. Bucks County Pennsylvania, No. 12-6867, 
    2014 WL 695205
    , at *8 (E.D. Pa. Feb.
    21, 2014) (citing In re Pittsburgh Citizen Police Review Board, 
    16 Pa. D. & C. 5th 435
    , 445 (Pa. Com. Pl. 2010)). To protect a written description of an individual but
    not his photographic mugshot seems counterintuitive. Therefore, I believe that
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    interpreting CHRIA as including a written description but not a photograph is
    unreasonable. A person is identifiable by his photograph more easily than by his
    written description. The inclusion of a photograph within the term description has
    long been recognized in the law.          As one Court noted, “[a] photograph is . . . a
    pictured description.” Ligon v. Allen, 
    162 S.W. 536
    , 538 (Ky. Ct. App. 1914).
    In Taha v. Bucks County Pennsylvania, 
    172 F. Supp. 3d 867
    , 871-72
    (E.D. Pa. 2016), information regarding Daryoush Taha’s 1998 arrest and
    incarceration was released to the public on Bucks County’s Correctional Institution’s
    Inmate Lookup Tool. The information included a color photograph of Taha from
    the shoulders up, wearing a blue shirt and pictured against a gray background; sex;
    date of birth; height; weight; race; hair color; eye color; citizenship; incarceration
    location; date committed to incarceration; release date; case number for the crime
    charged; and “DC, HARASS” listed under “Charge Information.” 
    Id. at 869
    . The
    District Court held that this information, including Taha’s mugshot, was
    “undoubtedly information collected by a criminal justice agency, arising from the
    initiation of a criminal proceeding, and consisting of ‘identifiable descriptions’ and
    ‘formal charges.’ 18 Pa. C.S. § 9102.” Id. at 872. Given the unambiguous definition
    in CHRIA, Pennsylvania’s rules of statutory construction, relevant decisions by
    Pennsylvania courts, and the Attorney General’s CHRIA Handbook, the District
    Court found that public dissemination of the aforementioned information constituted
    criminal record history information, which violated CHRIA. 2
    2
    A federal jury later found Bucks County’s conduct to be willful and in reckless disregard
    and indifference to the inmates’ privacy rights, and awarded $1,000 in damages to each of the
    67,000 inmates whose information was improperly disseminated on the website. The total jury
    award was $67 million.
    PAM - 3
    The Majority Opinion attempts to distinguish Taha in a footnote on the
    grounds that here, the requester is only seeking mugshots, whereas the information
    released in Taha included more information. However, CHRIA does not only forbid
    release of identifiable descriptions when it is accompanied by other information.
    CHRIA’s language is plain; the presence of any of the enumerated data identifies
    the material as criminal history record information. Taha, 
    172 F. Supp. 3d at 870
    (rejecting county defendants’ argument that all of the listed items are necessary to
    qualify the material as criminal history record information).
    I also do not agree with the Majority Opinion’s conclusion that CHRIA
    does not bar the County’s dissemination of the mugshots. CHRIA penalizes criminal
    justice agencies3 for conduct such as illegally releasing criminal history record
    3
    Criminal justice agency is defined as:
    Criminal justice agency. Any court, including the minor judiciary,
    with criminal jurisdiction or any other governmental agency, or
    subunit thereof, created by statute or by the State or Federal
    constitutions, specifically authorized to perform as its principal
    function the administration of criminal justice, and which allocates
    a substantial portion of its annual budget to such function. Criminal
    justice agencies include, but are not limited to: organized State and
    municipal police departments, local detention facilities, county,
    regional and State correctional facilities, probation agencies,
    district or prosecuting attorneys, parole boards, pardon boards, the
    facilities and administrative offices of the Department of Public
    Welfare that provide care, guidance and control to adjudicated
    delinquents, and such agencies or subunits thereof, as are declared
    by the Attorney General to be criminal justice agencies as
    determined by a review of applicable statutes and the State and
    Federal Constitutions or both.
    18 Pa. C.S. § 9102 (emphasis added).
    In addition, CHRIA applies to “to persons within this Commonwealth and to any
    agency of the Commonwealth or its political subdivisions which collects, maintains,
    PAM - 4
    information or releasing erroneous criminal history record information because such
    disclosures could harm a person’s reputation. King v. Mansfield University of
    Pennsylvania, No. 1:15-CV-00159, 
    2016 WL 6525177
    , at *6 (M.D. Pa. Nov. 3,
    2016). In order for protected information to be disseminated to a requesting agency,
    CHRIA requires that the agency adopt technical and physical safeguards including
    an audit trail for collecting, maintaining, tracking, and disseminating the
    information.    The agency must label the information to indicate the level of
    sensitivity and confidence. 18 Pa. C.S. § 9106. What this means to me is that this
    information cannot be disseminated outside of the confines and protections of
    CHRIA. Secondary dissemination is prohibited. 18 Pa. C.S. § 9106(d). In other
    words, only criminal justice agencies may request, receive, and disseminate such
    protected information under very strict regulations.
    Lastly, CHRIA penalizes agencies and political subdivisions for
    releasing criminal history record information because such disclosures could harm a
    person’s reputation. 18 Pa. C.S. § 9106(g). See Taha, King. Even if the Majority
    Opinion is correct, we must remand for the balancing test espoused by our Supreme
    Court in Pennsylvania State Education Association v. Department of Community
    and Economic Development (Office of Open Records), 
    148 A.3d 142
    , 158 (Pa.
    2016), so that the affected third parties (especially those who have been exonerated
    or who are innocent) can make the argument that their privacy interests far outweigh
    the minimal public interest in disclosure of the mugshots. The core purpose of the
    RTKL is to ensure transparency and the public understanding of the operations or
    activities of the government. I can discern no particular public purpose or interest
    that will be furthered by the wholesale dissemination of 800 mugshots. Neither
    disseminates or receives criminal history record information.” 18 Pa. C.S. § 9103 (emphasis
    added).
    PAM - 5
    could the Eleventh Circuit Court of Appeals in Karantsalis v. United States
    Department of Justice, 
    635 F.3d 497
    , 504 (11th Cir. 2011), which found that the
    subject had a substantial privacy interest in his mugshot, which was being sought by
    a reporters’ committee. In describing this privacy interest, the Karantsalis Court
    stated:
    a booking photograph is a unique and powerful type of
    photograph that raises personal privacy interests distinct
    from normal photographs. A booking photograph is a
    vivid symbol of criminal accusation, which, when released
    to the public, intimates, and is often equated with, guilt.
    Further, a booking photograph captures the subject in the
    vulnerable and embarrassing moments immediately after
    being accused, taken into custody, and deprived of most
    liberties. . . This Court cannot identify any particular
    public interest that would be served by releasing the
    booking photographs.
    
    635 F.3d at 504
    .
    For these reasons, I respectfully dissent and would, instead, reverse the
    trial court in this case.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    PAM - 6