For the Defense - Vol. 6 Issue 3 - 18

sanctions, such as the loss of access to criminal history
record information, and civil penalties.25
CHRIA also
creates a private right of action for individuals whose
information was improperly disclosed, which permits
recovery of not less than $100 for each violation, plus
costs and attorney's fees.26
available, up to $10,000 per violation.27
Punitive damages are also
In Taha v. Bucks
County, the Bucks County Department of Corrections
published an " inmate lookup tool " on its website,
which enabled any member of the public to lookup
personal information about past and present inmates,
including criminal history record information such as
booking photographs, date of birth, and descriptive
characteristics.28
The tool also permitted access to the
The Eastern District of
criminal history record information of inmates whose
records had been expunged.29
Pennsylvania held that Bucks County violated CHRIA by
publishing, not in response to a request, the criminal
history records for incidents that took place more than
three years ago and did not result in a criminal conviction
or which had been expunged.30
The issue of damages
was submitted to the jury, which determined that Bucks
County's violation was willful, which subjected them to
punitive damages.31
While the case was pending on
appeal, the County settled the case for more than $10
million.32
A producing criminal justice agency is also permitted
to excerpt criminal history record information from
records
containing
investigative,
intelligence,
and
other protected information that cannot be disclosed
to an individual or non-criminal justice agency,
and disseminate only the criminal history record
information.33
Chester County, the court considered a request under
the Pennsylvania Right to Know Law ( " RTKL " )34
to access
the District Attorney's " history file, " which contained
all files relating to all closed cases in the county.35
The files contained criminal history information
about defendants in closed cases, as well as notations
about the assistant district attorney(s) assigned to
each case and other administrative notes.36
Because
the RTKL request implicated criminal history record
information, the court analyzed whether the material
could be disseminated under CHRIA because " the
legislature intended the generic definition of a public
record contained within the [RTKL] to incorporate by
implication those specific definitions of 'public record'
contained in statutes allowing for public access to
particular documents of particular agencies. " 37
The
court held that " information relating to the name of
the accused, the date of the complaint, docket entries,
and the disposition of the case [constituted] criminal
history record information " under CHRIA and thus was
subject to disclosure.38
However, notations regarding
which district attorney(s) worked on the case were not
criminal history record information or public records
and so were protected from disclosure.39
The court
then ordered that only the criminal history record
information be produced.40
18 For The Defense l Vol. 6, Issue 3
In Mitman v. County Commissioners of
Protected information is frequently sought by
litigants in both civil and criminal cases. It is generally
not discoverable in civil cases, as CHRIA prohibits
criminal justice agencies from disclosing any protected
information to non-criminal justice agencies or
individuals.46
3. " Protected Information " : Criminal Intelligence,
Investigative, and Treatment Information
CHRIA narrowly prescribes circumstances when a
criminal justice agency can disseminate " protected
information, " 41
which includes intelligence information,
investigative information, and treatment information
assembled, compiled, or created for specified law
enforcement or criminal justice purposes. CHRIA defines
each of these terms as follows:
* " Intelligence information " is defined as
information concerning an individual's
habits, practices, characteristics, possessions,
associations, or financial status compiled in
an effort to anticipate, prevent, monitor,
investigate, or prosecute criminal activity.42
* " Investigative information " is defined
as information assembled as a result of
the performance of any inquiry, formal
or informal, into a criminal incident or
an allegation of criminal wrongdoing.43
This can include materials compiled by
those providing services to criminal justice
agencies, such as forensic laboratories.44
* " Treatment information " is defined as
information concerning medical, psychiatric,
psychological, or other treatment provided,
suggested, or prescribed for any individual
charged with or convicted of a crime.45
(It is disclosable to another criminal justice
agency upon request.) Courts have recognized that
CHRIA's application in these circumstances can have
profound effects, including " foreclose[ing plaintiffs]
from using evidence that law enforcement agencies are
in a unique position to collect based on their power
to obtain search warrants. " 47
In Miller v. Cecchino, the
Allegheny County Court of Common Pleas considered
the civil plaintiff's subpoena to the police for a
toxicology report obtained on the night that plaintiff
and defendant were in a car accident. As a result of
the toxicology report, defendant pled guilty to driving
under the influence and plaintiff sued thereafter. The
court determined that the toxicology report constituted
investigative information because it was obtained by
the police in connection with their investigation of
defendant's suspected driving under the influence and
so was not discoverable under CHRIA. The court noted
that plaintiffs were " hamstrung in their discovery
activities and presentation of evidence " because of
CHRIA's prohibition on disseminating investigative
information to anyone other than a criminal justice
agency.48
The court concluded: " The inability of Plaintiff
in this case to obtain Defendant's Toxicology Report
from McCandless [police department] is a powerful
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