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The Pennsylvania State Police may withhold from the state auditor general information on sex offenders registered under Pennsylvania’s version of Megan’s Law, an en banc panel of the Commonwealth Court has ruled in a 4-3 decision. Auditor General Robert P. Casey Jr. had asked the court to force the state police to divulge the records as part of a performance audit of the state’s enforcement of Megan’s Law. In the decision, captioned Department of the Auditor General v. Pennsylvania State Police, the majority, led by Judge Rochelle S. Friedman, agreed with the state police that the sex offender data are “investigative information under the state Criminal History Record Information Act.” “We conclude that the information requested by the auditor general is ‘investigative information’ within the meaning of the CHRIA,” Friedman wrote. “As such, the PSP properly refused to provide it to the auditor general.” Friedman was joined in the majority by President Judge James Gardner Colins and Judges Renee L. Cohn and Robert Simpson. A dissenting opinion, filed by Judge Dan Pellegrini, was joined by Judges Bernard L. McGinley and Doris A. Smith-Ribner. In May 2003, Friedman wrote, the state auditor general wrote the state police, informing them of the planned performance audit. The following August, the auditor general officially requested from the state police the names, current addresses and release dates of sexual offenders registered under Megan’s Law. According to the opinion, the state police denied the auditor general’s request, citing the protected status of “investigative information” under the CHRIA. The CHRIA permits the state police to release “criminal history record information” to agencies not involved in criminal justice but prohibits the circulation of “investigative information” to non-criminal justice agencies. In October 2003, the auditor general petitioned for the Commonwealth Court to review the state police’s refusal, the opinion states. The majority noted the distinction made by Megan’s Law between sexual offenders and sexually violent predators. Sexually violent predators are considered likely to reoffend after being released; Megan’s Law mandates that their names and addresses be made known to local police, the offenders’ victims, the offenders’ neighbors, and area educational centers and youth services agencies. In contrast, Megan’s Law does not authorize public notification concerning sexual offenders, who, unlike sexually violent predators, are deemed not likely to engage in sexually violent offenses upon release from custody, according to the opinion. The state police argued that information on sexual offenders is useful in identifying potential suspects in sexual offenses, the opinion states. “With its primary focus on SVPs,” Friedman wrote, “Megan’s Law does not state a particular reason for tracking non-SVP sexual offenders in this manner. Nevertheless, the PSP has understood the registry of sexual offenders to be an investigative tool for use in the performance of inquiries into Megan’s Law offenses still under investigation. Although the registry of sexual offenders may serve other purposes, we agree with the PSP that the registry serves as an investigative tool.” The majority also dismissed the auditor general’s claims that the information sought was “criminal history record information,” because it arose from an arrest, not a continuing investigation. “We acknowledge that the information is not a ‘result’ of the performance of inquiries in the sense that inquiries into unsolved crimes yielded the information,” Friedman wrote. “However, we construe the information to be a ‘result’ of the performance of inquiries in the sense that inquiries into Megan’s Law offenses resulted in the idea to assemble information as an investigatory tool.” In his dissent, Pellegrini wrote that Commonwealth Court case law sets out three types of records kept by government agencies: those that must be made public under the Right-to-Know Act, those that may be made public because their release is not prohibited, and those that cannot be released due to statutory proscriptions. “A list of persons convicted of sexual offenses [is] not part of any investigation of a particular crime,” Pellegrini wrote, “but merely a record of persons convicted of crimes as a result of convictions in a court of law.” Calling attention to the fact that the CHRIA specifically allows conviction records to be disseminated, Pellegrini argued that the information in question falls into the “may be made public” category and can be released at the discretion of the state police or can be compelled to be released “to allow an agency to carry out its legislatively mandated responsibilities.” The auditor general was represented by Richard D. Spiegelman, chief of staff at the department; James Darby, chief counsel to the department; and Sally Ann Ulrich, the department’s deputy chief counsel. Casey said in an interview with The Legal that the information in question is “a critical part” of his office’s planned audit. He said that his office became interested in assessing whether state police were notifying local police about sexual offenders in their area following admissions by the state police that they had lost track of some 551 sexual offenders — roughly 9 percent of the released sexual offenders population. “We want to draw some conclusions about whether this new law, which was designed to protect children from monsters, is working,” Casey said. He said that his department would take whatever steps necessary to appeal the panel’s decision to the state Supreme Court. The litigation was handled for the state police by Leslie Anne Miller, general counsel to Gov. Edward G. Rendell, and Gregory Dunlap, deputy general counsel. Miller did not personally respond to calls seeking comment but issued a statement on the ruling. “Today’s Commonwealth Court decision is important because it provides much needed clarification on the definition of investigative information under CHRIA,” Miller wrote. “In so doing, it permits state government agencies, including the governor’s office, the auditor general and the attorney general to consider lawful ways in which the public can be assured through independent oversight that the commonwealth agencies responsible for Megan’s Law administration are properly fulfilling their duties.” Karl Baker, deputy chief of the appeals division for the Defender Association of Philadelphia, said that he believed the majority interpreted the statutes correctly. “The right to privacy is certainly at issue here,” Baker said, “but so is the right of criminal justice agencies to keep their information close to the chest, so that they don’t have other people interfering with law enforcement.” (Copies of the 18-page opinion in Department of the Auditor General v. Pennsylvania State Police , PICS No. 04-0321, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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