D. Segelbaum & York Daily Record v. OAG ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dylan Segelbaum and :
York Daily Record, :
Petitioners :
:
v. :
:
Office of Attorney General, : No. 662 C.D. 2022
Respondent : Submitted: March 3, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 17, 2023
Dylan Segelbaum and the York Daily Record (collectively,
Segelbaum) appeal from the June 9, 2022 final determination (Final Determination)
issued by the Pennsylvania Office of the Attorney General (OAG) that denied
Segelbaum’s appeal of the OAG’s denial of Segelbaum’s March 17, 2022 records
request (Request) made pursuant to Pennsylvania’s Right-to-Know Law1 (RTKL).
Upon review, we affirm.
The facts underlying the incidents leading to the Request are both tragic
and undisputed. On November 15, 2021, an individual (Victim) submitted to the
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
York Area Regional Police Department2 a private criminal complaint (Private
Criminal Complaint) pertaining to a previously issued emergency protection from
abuse order (PFA Order) intended to protect Victim’s two daughters from her
estranged husband, Robert Vicosa (Vicosa), a former police officer from nearby
Baltimore County, Maryland. See Private Criminal Complaint, attached as Exhibit
A to the Affidavit of York County First Assistant District Attorney Timothy J.
Barker (Barker Affidavit), which in turn is attached as Exhibit 2 to the Petition for
Review. The Private Criminal Complaint challenged the failure of the York Area
Regional Police Department’s Chief of Police Tim Damon3 to have his department
serve the PFA Order on Vicosa.4 On November 18, 2021, Vicosa murdered Victim’s
daughters and committed suicide.5 Thereafter, the York County District Attorney’s
Office (YCDAO) referred the Private Criminal Complaint to the OAG.
2
Now the York County Regional Police Department. See Affidavit of York County First
Assistant District Attorney Timothy J. Barker (Barker Affidavit), attached as Exhibit 2 to the
Petition for Review, at 1.
3
Victim filed the Private Criminal Complaint against the “Chief of Police” of the “York
Area Regional Police.” Private Criminal Complaint at 2 (pagination supplied).
4
Specifically, the Private Criminal Complaint alleged:
On the evening of 11-14-21, a PFA Emergency order was placed by
Judge Ronald Haskell Jr. for protection of my daughters. At
approximately 3am on 11-15-21, I was informed by two York Area
Regional Officers that the Chief of Police put a stop to this order. I
was given no explanation for the stop and am still unaware of the
reason for stopping the order. In the meantime, my two daughters
continue to be in the custody of their father [Vicosa], who is a danger
to them, me, and himself.
Private Criminal Complaint at 2. The PFA Order referenced in the Private Criminal Complaint
was based in part upon a kidnapping and sexual assault perpetrated on Victim by Vicosa, as well
as threats made by Vicosa against the lives of Victim’s children. See Barker Affidavit at 1.
5
Vicosa also murdered a third person, his friend Tia Bynum, in the same incident.
2
On March 16, 2022, the OAG sent the YCDAO a letter regarding the
Private Criminal Complaint (OAG Letter). See Final Determination at 3. The OAG
Letter “related to a criminal investigation conducted by the OAG’s Criminal
Prosecutions Section and Bureau of Criminal Investigation.” See id. Segelbaum
claimed that the OAG Letter included a timeline of events of the Vicosa
murder/suicide (Timeline) that the OAG Letter characterized as possibly useful to
the YCDAO for the purpose of the development of law enforcement policies to aid
in the prevention of future tragedies. See May 10, 2020 Right-to-Know Law Appeal
2022-078 (RTKL Appeal) at 2 (pagination supplied); R.R. at 10a. Segelbaum also
claims that the OAG contemporaneously issued a press release that explained to the
public that the OAG had provided the YCDAO with the OAG Letter, which
reviewed and outlined the OAG’s concerns with certain lapses and decisions prior
to the Vicosa murder/suicide. See id.
On March 17, 2022, Segelbaum submitted the Request to the OAG
seeking “[a] copy of the [OAG’s] letter to the [YCDAO] addressing its findings
about how the emergency [PFA O]rder against [] Vicosa was handled.” Request,
R.R. at 22a.6 On April 25, 2022,7 the OAG Right-to-Know Officer forwarded a final
response letter denying the Request based on (1) the RTKL’s criminal investigation
exemption, Section 708(b)(16)(ii), (iv), (vi)(A) of the RTKL, 65 P.S. §
6
Segelbaum also submitted the same request to the YCDAO. On March 21, 2022, the
YCDAO responded by disclosing the portion of the OAG Letter that discussed Victim’s
withdrawal of the Private Criminal Complaint and then referred to the Timeline, but redacted the
Timeline itself as exempt from public disclosure.
7
On March 24, 2022, the OAG sent Segelbaum a letter in satisfaction of the RTKL’s
requirement that a written response to the Request be mailed within seven days. See OAG Letter
dated March 24, 2022 (March 24 Letter); R.R. at 25a-26a. The March 24 Letter informed
Segelbaum that the OAG needed additional time to comply with the Request, and that a response
would be issued within 30 days. See id.
3
67.708(b)(16)(ii), (iv), (vi)(A); (2) Pennsylvania’s Criminal History Record
Information Act (CHRIA),8 18 Pa.C.S. § 9106(c)(4);9 and (3) the attorney work-
product privilege. See OAG Letter dated April 25, 2022; R.R. at 28a-31a.
Segelbaum appealed to the OAG, which designated an Appeals Officer.
See RTKL Appeal; R.R. at 9a-10a. In the appeal,10 Segelbaum argued that the
RTKL’s criminal investigation exemption did not apply because there was no
ongoing criminal investigation at the time of the Request. See RTKL Appeal at 2;
R.R. at 10a. Segelbaum also challenged the application of CHRIA as a reason to
deny the Request because “[CHRIA] is frequently misapplied.” See id.
Additionally, Segelbaum challenged whether the information sought constitutes
attorney work product where the Timeline in the OAG Letter consists of “purely
factual” information. See id. On June 9, 2022, the Appeals Officer issued the Final
Determination denying Segelbaum’s RTKL Appeal. See Final Determination; R.R.
at 41a-47a. Segelbaum thereafter filed a timely Petition for Review in this Court.
8
18 Pa.C.S. §§ 9101-9183.
9
Regarding the dissemination of protected information, CHRIA provides that
[i]nvestigative and treatment information shall not be disseminated
to any department, agency or individual unless the department,
agency or individual requesting the information is a criminal justice
agency which requests the information in connection with its duties,
and the request is based upon a name, fingerprints, modus operandi,
genetic typing, voice print or other identifying characteristic.
18 Pa.C.S. § 9106(c)(4).
10
Upon receipt of the RTKL Appeal, the OAG RTKL Appeals Officer invited the parties
to provide further submissions to aid in the determination of the matter. See RTKL Appeals
Officer Letter dated May 13, 2022; R.R. at 11a-13a. OAG responded on May 25, 2022, with a
letter outlining the OAG’s positions on Segelbaum’s claims on appeal. See OAG Right-to-Know
Law Officer Letter dated May 25, 2022; R.R. at 15a-40a. Segelbaum did not respond to the RTKL
Appeals Officer’s invitation for further submissions.
4
On appeal,11 Segelbaum argues that the OAG erred by denying the
RTKL Appeal because the OAG Letter is not exempt from disclosure. See
Segelbaum’s Br. at 11-27. Specifically, Segelbaum argues that the RTKL Appeals
Officer erred by determining that the OAG Letter falls within the RTKL’s criminal
investigation exemption and/or is prohibited from dissemination by CHRIA. See id.
at 11-17. Segelbaum claims that CHRIA provides the OAG with the discretion to
publicly disclose the OAG Letter where public interest in disclosure substantially
outweighs individual, agency, or public interests favoring restriction of access. See
id. at 17-21. Segelbaum also claims that the attorney work-product privilege does
not exempt the OAG Letter from disclosure. See id. at 22-27. The OAG counters
that the three separate RTKL exemptions provided by the RTKL criminal
investigation exemption, 65 P.S. § 67.708(b)(16), CHRIA, and the attorney work-
product doctrine, each individually exempt the OAG Letter from disclosure. See
OAG Br. at 12-38.
Initially, we observe that the RTKL is designed to allow citizens to
scrutinize government activity and increase transparency. See SWB Yankees LLC v.
Wintermantel, 45 A.3d 1029, 1034, 1050 (Pa. 2012) (stating the RTKL “is remedial
legislation designed to promote access to official government information in order
to prohibit secrets, scrutinize the actions of public officials, and make public officials
accountable for their actions” (quoting Bowling v. Off. of Open Recs., 990 A.2d 813,
824 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013))). To that end, the RTKL
provides that records in the possession of an agency are presumed to be public. See
Section 305(a) of the RTKL, 65 P.S. § 67.305(a). However, the presumption does
11
This Court’s standard of review in RTKL cases is de novo, and our scope of review is
plenary. See Off. of Gen. Couns. v. Bumsted, 247 A.3d 71, 76 n.7 (Pa. Cmwlth. 2021) (citing
Bowling v. Off. of Open Recs., 990 A.2d 813 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453, 477 (Pa.
2013)).
5
not apply if: “(1) the record is exempt under [S]ection 708; (2) the record is protected
by a privilege; or (3) the record is exempt from disclosure under any other Federal
or State law or regulation . . . .” 65 P.S. § 67.305(a). “Exemptions from disclosure
must be narrowly construed due to the RTKL’s remedial nature . . . .” Off. of
Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). “An agency bears
the burden of proving, by a preponderance of the evidence, that a record is exempt
from disclosure under one of the enumerated exceptions.”12 Brown v. Pa. Dep’t of
State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015); see Section 708(a)(1) of the RTKL,
65 P.S. § 67.708(a)(1).
Under the criminal investigation exemption, the RTKL protects from
disclosure agency records “relating to or resulting in a criminal investigation[.]” 65
P.S. § 67.708(b)(16). While the RTKL law does not define “criminal investigation,”
this Court has observed that “[t]he plain meaning of a ‘criminal investigation’ clearly
and obviously refers to an official inquiry into a possible crime.” Pa. State Police
v. Grove, 161 A.3d 877, 892-93 (Pa. 2017) (citing https://www.merriamwebster.com
for definitions of “criminal” and “investigation”). Records expressly included under
the criminal investigation exemption include “investigative materials, notes, [and]
correspondence[,]” as well as records that, if disclosed, would “[r]eveal the
institution, progress[,] or result of a criminal investigation, except the filing of
criminal charges.” 65 P.S. § 67.708(b)(16)(ii) & (iv)(A). Accordingly, the criminal
investigation exemption covers prosecutorial materials including “notes of
interviews with victims, suspects and witnesses assembled for the specific purpose
of investigation.” Grove, 161 A.3d at 893.
12
“A preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.” Delaware County v. Schaefer ex rel. Phila. Inquirer,
45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).
6
Regarding CHRIA, this Court has observed that,
[g]enerally, CHRIA concerns collection, maintenance,
dissemination, disclosure[,] and receipt of criminal history
record information. CHRIA prohibits [an agency] from
disseminating “investigative information” to any persons
or entities, other than criminal justice agents and agencies.
18 Pa. C.S. § 9106(c)(4). CHRIA defines “investigative
information” as “[i]nformation assembled as a result of the
performance of any inquiry, formal or informal, into a
criminal incident or an allegation of criminal wrongdoing
. . . .” 18 Pa. C.S. § 9102 (emphasis added).
Pa. State Police v. Kim, 150 A.3d 155, 157-58 (Pa. Cmwlth. 2016) (emphasis in
original).
In the Final Determination, the RTKL Appeals Officer explained that
he conducted an in camera review of the OAG Letter and found that the OAG Letter
“is a correspondence relating to a criminal investigation conducted by the OAG.”
Final Determination at 3; R.R. at 43a. The OAG Letter “advis[ed the YCDAO] that
the criminal investigation was closed and summariz[ed] the findings of the OAG’s
criminal investigation.” Id. The RTKL Appeals Officer stated that “[t]he [OAG
L]etter contained information obtained by and through OAG criminal investigative
activity, including interviews conducted by OAG criminal investigators, discussion
of evidence or materials obtained in the course of the OAG criminal investigation,
and summaries of that criminal activity.” Id. Based on this assessment, the RTKL
Appeals Officer concluded that
the [OAG L]etter falls squarely into the records described
in Section 708(b)(16) [of the RTKL] as “relating to or
resulting in a criminal investigation.” First, the [OAG
L]etter is a correspondence relating to a criminal
investigation conducted by the OAG. Second, the [OAG
7
L]etter summarizes information gathered from witness
interviews and evidence collected, and thus would “reveal
the institution, progress[,] or result of a criminal
investigation.”
Id. (internal citations omitted).
Following our own in camera review of the OAG Letter, we agree with
the RTKL Appeals Officer’s conclusion. The OAG Letter is obviously
correspondence relating to a criminal investigation and the results thereof. The OAG
Letter discusses investigative materials, notes, and other materials that, if produced,
would reveal the institution, progression, and result of that criminal investigation.
The Timeline included as part of the OAG Letter, while comprised of factual
information, forms part of the OAG’s investigative materials and notes created as
part of its criminal investigation. Further, Segelbaum is not a criminal justice agent
or agency. Accordingly, the preponderance of the evidence reveals that the OAG
Letter is exempt from disclosure in response to a RTKL request under both the
RTKL’s criminal investigation exemption and CHRIA. See 65 P.S. § 67.708(b)(16);
65 P.S. § 67.708(b)(16)(ii) & (iv)(A); see also 18 Pa. C.S. § 9106(c)(4).
For these reasons, we affirm the OAG’s Final Determination.13
__________________________________
CHRISTINE FIZZANO CANNON, Judge
13
As a result of our determination that the OAG Letter is exempted from production by the
criminal investigation exemption and CHRIA, we need not discuss whether the OAG Letter is also
exempt from production pursuant to the attorney work-product privilege.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dylan Segelbaum and :
York Daily Record, :
Petitioners :
:
v. :
:
Office of Attorney General, : No. 662 C.D. 2022
Respondent :
ORDER
AND NOW, this 17th day of August, 2023, the June 9, 2022 final
determination issued by the Pennsylvania Office of the Attorney General is
AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge