For the Defense - Vol. 6 Issue 3 - 20

from disclosure under CHRIA.62
Courts require that in
order for CHRIA to prevent disclosure, the material at
issue must have been " created to report on a criminal
investigation or set forth or document evidence in a
criminal investigation or steps carried out in a criminal
investigation, " 63
such as reporting an investigation
into a death;64 a criminal file containing defendant's
confession, polygraph test, forensic lab reports, internal
police review documents, and witness statements;65
or an incident report containing notes from witness
interviews and reporting whether investigative tasks
had been carried out.66
Courts considering challenges to the government's
refusal to produce claimed investigative or intelligence
information will consider the circumstances under which
the material was created or acquired. For example, in
California Borough v. Rothey,67
the Commonwealth
Court considered whether surveillance footage of a
police officer assaulting a prisoner, which ultimately
led to his discharge, was investigative material under
CHRIA. The court explained that " 'investigative
information' is defined under CHRIA as '[i]nformation
assembled as a result of the performance of any inquiry
. . . into a criminal incident or an allegation of criminal
wrongdoing. The operative word is 'assembled.' " 68
The court then reasoned that in this case, the police
chief " gathered the information on the video by
downloading it and taking it to the district attorney for
evaluation. Stated otherwise, [the chief] 'assembled'
the criminal investigation information. " 69
CHRIA prohibited disclosure of the footage.
Accordingly,
Conversely, information gathered by law enforcement
in connection with non-criminal proceedings or activity
is not protected by CHRIA. In Pennsylvania State Police
v. Grove,70
the Pennsylvania Supreme Court considered
whether dashcam footage of a two-car accident taken
by the Pennsylvania State Police was " investigative
material " under CHRIA. The court explained that
dashcams start recording when a police car's light or
siren is activated and " capture many events, including
routine traffic stops, patrol vehicle travel and any
other event a state trooper deems appropriate to
record, " including " many instances that plainly do not
involve criminal activity, and may ultimately be used
in civil proceedings, administrative enforcement and
disciplinary actions. " 71
The court held that because
investigative material under CHRIA only encompasses
information that is created or obtained to investigate
suspected criminal activity, the dashcam footage at
issue - which showed the accident - did not constitute
investigative material and thus was not covered by
CHRIA.72
However, the court agreed with the lower
court's determination that the audio portion of the
trooper's interviews with witnesses to the accident was
properly withheld as investigative information.73
As the
Superior Court stated, applying Grove II, information
compiled by law enforcement for non-criminal use " is
discoverable under Rule 4003.1 of the Rules of Civil
Procedure. " 74
20 For The Defense l Vol. 6, Issue 3
If the criminal justice agency possessing the protected
information can demonstrate that the information
is protected by CHRIA, the agency may redact the
protected information and produce any responsive,
non-protected information.75
For example, in Opitz v.
Bowman, a defendant in a civil case sought information
from the Narcotics Division of the Attorney General's
Office regarding the plaintiff. The government produced
copies of the criminal complaint, arrest warrant affidavit,
and numerous investigative reports with various
sections redacted in response to a subpoena for " any
and all case files pertaining to Opitz's arrest in January
1997. " 76
The defendant claimed that the redactions
were inappropriate because he needed unrestricted
access to locate potentially exculpatory material for his
civil defense.77
The Pike County Court of Common Pleas
denied the defendant's motion to compel discovery and
upheld the redactions, holding that CHRIA " not only
establishes and amplifies the government's privilege
against disclosure of investigatory information, it also
mandates its assertion. " 78
If public interest outweighs the government's interest
in protecting the secrecy of confidential information,
the court may compel the disclosure of investigative
information. In Caputo v. WYTV, a police officer
filed a defamation suit against a network station
following a news report that accused the officer of
corruption.79
To defend its statements as truthful, the
station subpoenaed the police officer's employing
department for documents related to corruption and
drug investigations that were closed.80
The attorney
general moved to quash the subpoenas, claiming that
the information was investigatory and exempt from
discovery under CHRIA and the RTKL.81
The court held
that CHRIA and the RTKL did not prohibit the disclosure
of investigative documents in civil discovery.82
The court
reasoned that " the exclusion of a particular type of
public record from an act mandating disclosure cannot
be construed to mean that the court may not permit
disclosure in its discretion when it finds that the public
interest privilege doesn't apply. " 83
In this case, the court
balanced the public interest with the government's
interest
in
protecting
the
secrecy
of confidential
information and found that the information the news
station sought was necessary to defend itself and
that the Commonwealth's interest in confidentiality
in a closed investigation is much less than in an active
investigation. Because the news station sought only
information about closed investigations, disclosure was
permissible.84
Practice Pointers for Discovery Practice
Practitioners are most likely to encounter CHRIAissues
during discovery, when trying to obtain necessary
information for their cases. When and how these issues
arise in discovery varies from case to case. For example,
a civil litigant may serve a subpoena seeking criminal
history record information from a third-party criminal
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