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  • SAME OLD SONG?

    Posted on October 26th, 2010 Becky 2 comments

    THE RIGHT TO KNOW?

       

    This response in from the Lancaster County District Attorney’s office dated October 20, 2010.

     

    Dear Ms. Holzinger:

     

        Thank you for writing to the Lancaster County District Attorney’s Office with your request for information pursuant to the Pennsylvania Right to Know law (hereinafter, RTK law).  65 P.S. & 67.101 et seq.  On October 19, 2010 you requested:

            The autopsy report for Scott McQuiilkin whose 

             body was found in Reinholds, Pennsylvania on

             July 17, 2010.

     

        According to Coroner’s Office, the autopsy report for this case is not yet complete.  Accordingly, the requested record does not yet exist.  Moore v. Office of Open Records, Pa.Commw. (March 25, 2010)(Commonwealth agency cannot grant access to a record that does not exist, and cannot be made to create such a record).  Further, this incident involves a pending criminal case, the release of the autopsy report, even if completed, would compromise the Commonwealth’s ability to continue its investigation and prosecution.  Accordingly, your request for release of the autopsy report is denied.  65 P.S. 67.708(b)(16)(vi)(A.B.C.D.).

     

        Additionally, the request for the autopsy report is denied pursuant to RTK Exception 65 P.S. 67.708(b)(20) which specifically provides that autopsy reports and the attendant records are an exception to RTK(1) and 65 P.S. 67.708(b)(16) which protects all criminal investigative records.  Further, the request violates the Pennsylvania Criminal History Record Information Act (Hereinafter, CHRIA), at 18 PA.C.S.A. & 9101 et seq., and && 9102.9106(c)(4).  See also; In RE:  Cullen, 2007, Pa. D&C Dec. LEXIS 1 (Lehigh Cnty. 2007).

     

        You have the right to appeal the denial of the autopsy report in writing to Terry Mutchler, Executive Director, Office of Open Records, Commonwealth Keystone Buiilding, 400 North Street, 4th Floor, Harrisburg, PA  17120.  If you choose to file an appeal of the denial of the autopsy report you must do so with 15 business days of the mailing date of this letter.  See 65.P.S. & 67.1101.

     

    Please be advised that this correspondence will serve to close this record with our office as permitted by law.

     

    Sincerely,

    Susan E. Moyer

    Assistant District Attorney/Right to Know Officer

     

        (1) Your request has been made solely under the Right to Know Law, the Coroner’s Act is not relevant to the request.  See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632 n.2 (Pa. 2009)(Supreme Court expresses no opinion as to relationship between RTK law in Pennsylvania and the Coroner’s Act).  Furthermore, even under the Coroner’s Act, a coroner is not required to deposit his official records and papers with the prothontary until thirty (30) days after the end of the year.  16 P.S. & 1251. 

     

    2 responses to “SAME OLD SONG?”

    1. Becky, Does your head hurt yet?

    2. “Commonwealth agency cannot grant access to a record that does not exist, and cannot be made to create such a record.”

      And there you have the entire process in a nutshell. If you don’t want to abide by the “right to know” as an agency, don’t keep records.

      What a joke.