Immunity Agreements Are Not Per Se Exempt From Disclosure under the RTKL

In Coley v. Philadelphia District Attorney’s Office, No. 317 C.D. 2013 (Pa. Cmwlth. October 7, 2013), the Commonwealth Court, in an opinion by Judge Leavitt, addressed whether witness statements and an immunity agreement contained in a District Attorney’s (“DA”) file were exempt from disclosure under the RTKL.  The court held that the witness statements were exempt from disclosure; however, the court declined to assume that immunity agreements are per se exempt from disclosure, and remanded the case to the trial court because the record failed to describe the contents of the agreement.

Coley, an inmate, sought immunity petitions and witness statements compiled by the Philadelphia DA’s Office during the investigation that resulted in his arrest and conviction for murder.  The DA’s Office denied the request asserting that the records were “criminal investigative records” exempt under Section 708(b)(16) of the RTKL.  The trial court agreed.

On appeal to the Commonwealth Court, Coley argued that the investigative records, although not public records at the time of creation, became public records once they were used as “evidence” at trial.  The Commonwealth Court stated that the only issue was whether materials in an investigation file of a DA are “public records” that must be disclosed under the RTKL.

Citing to Mitchell v. Office of Open Records and Sullivan v. City of Pittsburgh, Department of Public Safety, the court succinctly held that the witness statements compiled during the District Attorney’s investigation were exempt from disclosure as “investigative materials” under Section 708(b)(16)(ii) of the RTKL and as “investigative information” under Section 9106(c)(4) of the Criminal History Record Information Act (“CHRIA”).

The court then turned to the status of the immunity agreement.  The trial court had summarily held that the immunity agreement was facially exempt from disclosure under the RTKL without describing the contents of the agreement.  The court stated, “We decline to assume that immunity agreements are per se ‘investigative materials’ or always contain ‘investigative information.’”  Therefore, the court vacated the portion of the trial court’s order holding that the immunity agreement was exempt and remanded to the trial court for further proceedings and an explanation of the contents of the document.  The court did note that immunity agreements may be exempt under another provision of the RTKL, Section 708(b)(16)(iii), which protects the identity of confidential sources.

Lastly, the court addressed Coley’s argument that the use of the documents as evidence at trial waived any exemptions under the RTKL and CHRIA.  The court rejected this argument as Coley had failed to show that the records were used at trial.

The case makes it clear that documents contained within a DA’s investigation file are not automatically exempt under the RTKL.  Courts must determine whether the documents, like the immunity agreement in the instant case, actually qualify as “investigative materials” or contain “investigative information” before holding that the records are exempt from disclosure. Stay tuned for the decision on remand as it will shed further light on the subject.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

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