Toland, C. v. PBPP, Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 2025
• Docket: 11 EAP 2024
• Status: Published

Opinion

[J-44-2025] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

CHRISTOPHER TOLAND, : No. 11 EAP 2024 : Appellee : Appeal from the order of the : Commonwealth Court of : Pennsylvania dated February 14, v. : 2024 at No. 315 MD 2018 : : SUBMITTED: March 20, 2025 PENNSYLVANIA BOARD OF PROBATION : AND PAROLE, : : Appellant :

OPINION

JUSTICE DONOHUE DECIDED: October 6, 2025 The Pennsylvania Parole Board (“Parole Board” and/or “Board”) denied parole to

Christopher Toland (“Toland”) fourteen times between 2004 and 2020, contrary to the

recommendations of the Pennsylvania Department of Corrections (“DOC”). Toland filed

a petition for review in the Commonwealth Court seeking mandamus relief for alleged

violations of his constitutional rights stemming from the Parole Board’s denial of his parole

in 2017.1 When the case proceeded to discovery, the Board objected to Toland’s request

for disclosure of documents related to Toland’s eligibility for parole by relying on a

regulation promulgated by the Parole Board that declares that its records “touching on

matters concerning a probationer or parolee” are “private, confidential and privileged.” 37

1 In 2020, Toland amended his petition for review to capture subsequent parole denials in 2018 and 2019. Unless otherwise specified, we refer exclusively to Toland’s amended petition for review for purposes of this appeal. Pa. Code § 61.2 (“Section 61.2”). The Commonwealth Court overruled the objection after

determining that Toland was a beneficiary of the Section 61.2 privilege and therefore was

empowered to waive it. The Parole Board then filed this interlocutory appeal. In a matter

of first impression, the Parole Board contends that the plain text of Section 61.2

establishes that it is the entity that holds the privilege established thereunder and that the

Commonwealth Court erred in permitting Toland to waive it.

After careful review, we affirm the Commonwealth Court’s decision to overrule the

Parole Board’s discovery objection based on Section 61.2, but upon a distinct rationale.

For the reasons discussed in this opinion, we hold that the Parole Board has no authority

to create an evidentiary privilege. Thus, Section 61.2 does not create an evidentiary

privilege upon which the Parole Board can rely to foreclose disclosure in discovery.

Background

Toland was sentenced to an aggregate term of eleven to forty years of

incarceration following his 1993 guilty plea to charges of rape, kidnapping, and related

offenses. As such, Toland became eligible for parole in 2004.2 The instant matter

concerns the Parole Board’s decisions to deny his parole in 2017, 2018, and 2019.

In his petition for review, Toland argued that the Parole Board violated his due

process rights because it relied on false information and exercised its discretion in an

arbitrary and capricious manner, and that the Board’s application of parole standards3

promulgated after his sentence became final violated the ex post facto prohibitions of both

the United States and Pennsylvania Constitutions. The Commonwealth Court overruled

the Parole Board’s preliminary objections to these claims in 2021. Toland v. Pa. Bd. of

2 “The power to parole granted … to the [Parole Board] may not be exercised … at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence[.]” 61 Pa.C.S. § 6137. 3 See 61 Pa.C.S. §§ 6101-6164.

[J-44-2025] - 2 Prob. & Parole, 263 A.3d 1220 (Pa. Commw. 2021).4 The Board did not file an appeal

from that decision.

Toland subsequently served and the Parole Board responded to two sets of

interrogatories and a request for production of documents. The Parole Board objected to

almost all inquiries, with a significant number of its objections premised in whole or in part

on its assertion of the Section 61.2 privilege. Specifically, the Board answered twelve of

the first set of interrogatories with a template objection that its “decision-making

processes are private, confidential, and privileged.” Parole Board’s Answers to Plaintiffs’

First Set of Interrogatories, 2/6/2022, ¶¶ 17-18, 28, 30, 32, 35-36, 39-41, 43, 44 (citing 37

Pa. Code. § 61.2). The Parole Board objected to most of Toland’s requests for documents

on a similar basis, stating, in boilerplate fashion: The [Parole] Board objects to this request as producing any of the requested documents would violate its confidentiality regulation. Specifically, the [Parole] Board’s regulation provides that “[r]ecords, reports and other written things and information, evaluations, opinions and voice recordings in the Board’s custody or possession touching on matters concerning a probationer or parolee are private, confidential and privileged[.]” 37 Pa. Code § 61.2. Parole Board’s Responses to Petitioner’s First Request for Production of Documents,

2/7/2022, ¶¶ B-C, E, G-L. The Board also objected to several of Toland’s second set of

4 The Commonwealth Court rejected the Parole Board’s claims that Toland’s amended petition lacked sufficient specificity to support Toland’s due process claims, that mandamus may not be used to review its discretionary decision to deny parole, and that Toland failed to state facts sufficient to establish an ex post facto claim. Toland, 263 A.3d at 1231 (overruling the Board’s preliminary objection on the basis of insufficient specificity); id. at 1233 (observing that while direct appellate review of a Parole Board’s decision is not available, a writ of mandamus may be available to address constitutional violations); id. at 1237 (stating that Toland “submitted more than just the conclusory allegations” the court had previously rejected and instead followed the Third Circuit’s recommendations in Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282, 284 (3d Cir. 2005), by showing that the “average time served prior to parole has more than doubled for prisoners with convictions similar to [Toland] from 1993 to 2016”).

[J-44-2025] - 3 interrogatories. Parole Board’s Answers to Plaintiff’s [Second] Set of Interrogatories,5

3/31/2022, ¶¶ 6, 12, 28-29, 31, 33, 39, 40, 43, 49-50, 52, 54 (stating, in each instance,

that the Parole Board’s “decision making processes are private, confidential, and

privileged” pursuant to Section 61.2).

Toland subsequently filed a motion to dismiss the Parole Board’s objections and

the Parole Board responded. See Motion to Dismiss Respondent’s Objections to

Petitioner’s Discovery Requests, 5/4/2022 (“Motion to Dismiss”); Response to Motion to

Dismiss Respondent’s Objections to Petitioner’s Discovery Requests, 6/20/2022. After

the parties were ordered to file memoranda of law, the Commonwealth Court heard

argument on September 11, 2023, and issued its decision on February 14, 2024. Toland

v. Pa. Bd. of Prob. & Parole, 311 A.3d 649, 654 (Pa. Commw. 2024).

Decision Under Review

The Commonwealth Court first addressed the threshold question of whether this

case was moot and, alternatively, whether a mootness exception applied. The Parole

Board asserted that Toland’s mandamus action targeting his parole denials in 2018, 2019,

and 2020, was rendered moot by the more recent parole denial in 2022, wherein the

Board had ostensibly followed its pre-1996 guidelines. Toland, 311 A.3d at 657. The

Commonwealth Court found that the case was not moot, instead agreeing with Toland

that the alleged factual inaccuracies in his parole record would “continue to taint any

subsequent parole denial” and, therefore, that mandamus relief was still possible despite

the intervening parole denial. Id. at 660. The court also found that a mootness exception

applied as the issues were capable of repetition and likely to evade review because “by

the time Toland achieved any meaningful progress in litigation alleging defects with his

5 This was mislabeled by the Parole Board as its response to Toland’s “first” set of interrogatories.

[J-44-2025] - 4 2022 parole denial, a subsequent parole interview and decision would likely have mooted

his case” again. Id. The Parole Board does not challenge this aspect of the

Commonwealth Court’s decision in this appeal.

The Commonwealth Court next addressed the litany of objections raised by the

Parole Board in response to Toland’s requests for the production of documents. Most

pertinent here, the court focused on the following document requests: B. Produce all documents relating to the assessments made by the Sexual Offenders Assessment Board (SOAB) conducted on [Toland] in or around the years 1996-1999 which was requested by the ... Board under 42 Pa.C.S.[ ] § 9799.24 [of the Sex Offender Registration and Notification Act].

C. Produce each Parole Decisional Instrument (PBPP-361) forms completed, the identity of person(s) filling it out and date completed for the fourteen (14) parole interviews conducted on [Toland][.] * * * E. Produce each Level of Service Inventory-Revised (LSIR) assessment completed, the identity of person(s) evaluating it, and date completed for the fourteen (14) parole interviews conducted on [Toland]. * * * G. Produce each Static 99 assessment(s) completed, the identity of person(s) evaluating it and date completed for the fourteen (14) parole interviews conducted on [Toland].

H. Produce each DC-13A, Integrated Case Summary forms prepared by the [DOC] for the ... Board prior to all fourteen (14) parole interviews conducted on [Toland].

I. Produce each [DOC] vote sheets completed prior to all fourteen (14) parole interviews conducted on [Toland].

J. Produce each of the eight (8) [DOC] psychological reports transmitted and/or given to the ... Board which have been completed o[n] [Toland] since his minimum date of January 2004.

[J-44-2025] - 5 K. Produce any report(s), evaluation(s), or assessments made by the [DOC] and provided to the ... Board which indicate that [Toland] is a risk to the community.

L. Produce any court, police, criminal records, criminal complaint forms, pre-sentence reports, and psychological reports prepared by Philadelphia County and transmitted to the ... Board which have been reviewed prior to each of the parole interviews conducted on [Toland]. Id. at 663 (citing Request for Production of Documents, ¶¶ B-C, E, G-L).6

The Commonwealth Court rejected the Parole Board’s claim that most of the

above-listed documents, although held in the Board’s possession, could not be disclosed

pursuant to Section 9106 of Pennsylvania’s Criminal History Record Information Act

(“CHRIA”), 18 Pa.C.S. §§ 9101-9183. The court found that the Board failed to meet its

burden to show that CHRIA precluded disclosure,7 observing that although the Board

baldly alleged that the requested documents were protected under CHRIA, it failed to

“provide any analysis as to why the information Toland seeks amounts to one of the three

types of protected information.” Toland, 311 A.3d at 670. The court also found that the

Parole Board failed to meet its burden to show disclosure of Toland’s pre-sentence

reports was barred by Pa.R.Crim.P. 703. Id. at 672. In both instances, the court

determined that the Parole Board had effectively waived these claims for lack of

development. Id. at 670, 672. Similarly, the Commonwealth Court found that the Board

did not satisfy its burden to show non-discoverability based on “boilerplate objections”

alleging that Toland’s interrogatories were “[v]ague, argumentative, overbroad,

6 The court cited directly to Appendix A of the Motion to Dismiss, which contained a reproduction of Toland’s Request for Production of Documents. 7 The court applied the general rule that because the Pennsylvania Rules of Civil Procedure broadly permit discovery regarding any matter not privileged, see Pa.R.C.P. 4003.1, “the objector to a discovery request must demonstrate non- discoverability[.]” Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1025 (Pa. Commw. 2006).

[J-44-2025] - 6 ambiguous, unduly burdensome, and not reasonably calculated to lead to admissible

evidence[.]” Id. at 676 (emphasis omitted).8 The Parole Board does not challenge these

rulings in the appeal currently before this Court.

Most pertinent here is the Commonwealth Court’s holding regarding the Parole

Board’s invocation of the privilege referenced in Section 61.2. After quoting its text, the

court noted that its research uncovered “no other case involving this particular Regulation

in the discovery context.” Id. at 665.

The court first considered the Parole Board’s reliance on a case involving attempts

to secure records from a parole file via Pennsylvania’s Right to Know Law (“RTKL”), 65

P.S. §§ 67.101-67.3104. In Coulter v. Pennsylvania Board of Probation and Parole, 48

A.3d 516 (Pa. Commw. 2012), a parolee sought “Home Plans” from the Office of Open

Records (“OOR”) that were held by the Parole Board.9 The Coulter court held that the

Home Plans were not subject to disclosure under the RTKL because they were not public

records, as evidenced by Section 61.2. See Coulter, 48 A.3d at 519 (observing that “if all

Home Plans were considered public records, they would be open to the entire public at

large which could have adverse effects on all parolees”). The Commonwealth Court

distinguished Coulter from the instant case because the RTKL implicates “unique policy

concerns” regarding “the potential for public access to sensitive information in parolees’

files.” Toland, 311 A.3d at 666 (emphasis in original). Consequently, the court found that it makes more sense to limit public access to sensitive parole files via the RTKL, even if the parolee or would-be parolee cannot access them, than it does in the discovery context.

8 However, the court found that five individual interrogatories had been answered “fully and completely” for purposes of Pa.R.Civ.P. 4006(2) (“Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer.”). 9 A Home Plan “helps determine where the parolee will live while on parole” and “must be approved by the Board.” Coulter, 48 A.3d at 517 n.2 (citation omitted).

[J-44-2025] - 7 That is so because discovery, of course, does not implicate the RTKL’s policy concern of wide potential public disclosure, especially given the safeguards courts may erect around the discovery process. Id.

The lower court also discussed two other cases involving the intersection between

Section 61.2 and the RTKL. In Jones v. Office of Open Records, 993 A.2d 339 (Pa.

Commw. 2010), the would-be parolee sought disclosure through the RTKL of parole

recommendations issued by the prosecutor and sentencing judge. The Jones Court

considered the RTKL’s statutory presumption that records held by a Commonwealth

agency are public records. See 65 P.S. § 67.305(a). That presumption is subject to

exceptions for privileged records, see id. § 67.305(a)(2), and for records “exempt from

disclosure under any other Federal or State law or regulation or judicial order or decree[,]”

id. § 67.305(a)(3). The Jones Court found that Section 61.2 fit the latter exception, but

did not consider whether it satisfied the former. See Jones, 993 A.2d at 343. Addressing

the impact of Section 61.2 in the context of the RTKL’s public record presumption, Jones

argued, unsuccessfully, that he was not a “parolee” within the meaning of Section 61.2.

Jones, 993 A.2d at 343.

The Commonwealth Court also examined its decision in Vu v. Pennsylvania Board

of Probation and Parole, 200 A.3d 627 (Pa. Commw. 2018), where an inmate requested

reports, evaluations, and assessments related to the reasons for denial of his parole. The

Vu court considered two claims regarding Section 61.2, both of which concerned the use

of Section 61.2 to exempt parole files from disclosure under the RTKL. As with Coulter,

the lower court distinguished Jones and Vu because those addressed requests under the

RTKL for confidential parole records. Toland, 311 A.3d at 666. Neither Coulter, Jones,

nor Vu addressed disclosure of parole-related documents in relation to the purported

privilege created by Section 61.2.

[J-44-2025] - 8 Having determined that the precedents relied on by the Parole Board were

distinguishable, the Commonwealth Court turned to decide whether Section 61.2’s “plain

language bars disclosure of the documents[.]” Id. The lower court recognized our well-

worn rules of statutory construction as being equally applicable to the interpretation of

regulations, emphasizing that in addition to plain language, a court must also consider

the context in which it arises. Id. In examining the plain text of Section 61.2, the court

focused on the phrase, “private, confidential and privileged[,]” and applied common

dictionary definitions to those terms because no definition was provided in the Parole

Board’s regulations.10 In the court’s view, those definitions gave rise to three basic

questions: “Private and secret from whom? If not to be known publicly, then to be

known to whom? If privileged, who, holding the privilege, may waive it?” Id. at 667

10 Specifically, the Commonwealth Court stated: The first definition of “private” is “intended for or restricted to the use of a particular person, group, or class.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 936 (1991). It can also mean “not known or intended to be known publicly.” Id. (emphasis added). Black’s Law Dictionary defines “private” as “[r]elating or belonging to an individual, as opposed to the public or the government,” or “[c]onfidential; secret.” BLACK’S LAW DICTIONARY 1315 (9th ed. 2009) (emphasis added). The relevant dictionary definition of “confidential,” is “private, secret[,]” or “containing information whose unauthorized disclosure could be prejudicial to the national interest.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 275 (1991). Black’s Law Dictionary defines the term as “(Of information) meant to be kept secret,” giving the example of “confidential settlement terms.” BLACK’S LAW DICTIONARY 339 (9th ed. 2009). Finally, the relevant definition of “privileged” is “not subject to disclosure in a court of law,” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 936 (1991), or “[n]ot subject to the usual rules or liabilities; esp[ecially], not subject to disclosure during the course of a lawsuit ... [e]njoying or subject to a privilege,” BLACK’S LAW DICTIONARY 1319 (9th ed. 2009). Toland, 311 A.3d at 667 (internal citations reformatted).

[J-44-2025] - 9 (emphasis in original). The Commonwealth Court found that it could “resolve the answers

to these questions” by considering the terms’ definitions “with an eye toward the context

of the Regulation as a whole.” Id.

Section 61.2, the court observed, is divided into two parts. The first clause defines

the scope of the regulation, stating that “[r]ecords, reports and other written things and

information, evaluations, opinions and voice recordings in the Board’s custody or

possession touching on matters concerning a probationer or parolee are private,

confidential and privileged[.]” 37 Pa. Code § 61.2. The second clause, appearing in the

same sentence as the first separated by a semicolon, cabins the regulation’s scope with

the exception “that a brief statement of the reasons for actions by the Board granting or

refusing a parole will at all reasonable times be open to public inspection in the offices of

the Board.” Id. According to the Commonwealth Court, the second clause implies that

the first clause is concerned with non-public information because the only exception to

the general rule concerns what can be released to the public. Toland, 311 A.3d at 668

(stating “the drafters of this Regulation must have been concerned about disclosure of

parole file information to the public in crafting the general rule that the information be

private, confidential, and privileged because it phrases the only exception to the rule as

allowing public access to specified information”) (emphasis in original). The court

elaborated further, reasoning as follows: This reading also suggests that we can envision the parolee as the beneficiary of the Regulation, and thus, we can resolve those questions as follows. The information is private and secret from the public, not Toland. The information is not to be known publicly, but rather to Toland. Toland, as the beneficiary of the privilege, holds it, so he may waive it. Id. (emphasis in original) (citing Maleski v. Corp. Life Ins. Co., 646 A.2d 1, 4 (Pa. Commw.

1994) (noting that a client, as the holder-beneficiary of the attorney-client privilege, may

waive it)).

[J-44-2025] - 10 The Commonwealth Court considered but quickly dismissed the argument that the

Parole Board members were the “sole beneficiaries” of the privilege. Id. Given that

Pennsylvania law disfavors evidentiary privileges,11 and because the lower court

determined that Section 61.2’s focus is on protecting information from public disclosure,

the court determined that Parole Board members should not be construed “as the sole

beneficiaries of the privilege.” Id. The court found further support for this interpretation

in the fact that the Parole Board previously produced similar documents in the context of

federal litigation. Id.

Judge Mary Hannah Leavitt dissented on grounds not relevant to the instant

appeal.12

Issue

Did Commonwealth Court err by holding that Toland was the holder of the privilege created by the Board’s regulation at 37 Pa. Code § 61.2 and was therefore entitled to waive the privilege as its beneficiary?

11 “Pennsylvania law does not favor evidentiary privileges.” Joe v. Prison Health Servs., Inc., 782 A.2d 24, 31 (Pa. Commw. 2001) (citing Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997)). See also Herbert v. Lando, 441 U.S. 153, 175 (1979) (“Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances.”) (footnote omitted); United States v. Nixon, 418 U.S. 683, 710 (1974) (“Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”). 12 Judge Leavitt would have denied Toland’s motion to dismiss the Parole Board’s objections on relevancy, overbreadth, and mootness grounds. Toland, 311 A.3d at 683 (Leavitt, J., dissenting) (“None of Toland’s document requests, with the possible exception of his criminal records, are relevant to his substantive due process claim that the Parole Board considered a false criminal history in its parole denials of 2017, 2018, and 2019.”); id. (“Toland appears to have been granted the relief he seeks in his challenge to the Parole Board’s decisions of 2017, 2018, and 2019, i.e., a new parole interview” in 2022, where his “parole was considered on the basis of the statutory standards he believes are appropriate, given his conviction prior to 1996.”). Judge Leavitt did not express disagreement with the Majority regarding the purported Section 61.2 privilege.

[J-44-2025] - 11 Parole Board’s Brief at 4.13

Parties’ Arguments Parole Board

The Parole Board argues that the “most straightforward reading of [Section 61.2]

is that the Board holds a privilege over any documents it possesses when it reviews

inmates for parole.” Parole Board’s Brief at 7. It also believes that the Commonwealth

Court misidentified the purpose of Section 61.2 in reaching its interpretation, and instead

contends that it is meant “to foster the frank exchange of information and opinions for use

in the parole decision making process.” Id. at 8. The Parole Board continues to rely on

the Commonwealth Court’s RTKL cases and faults the Commonwealth Court for relying

on “federal decisions where state law privileges do not apply.” Id. at 7-8.

The Parole Board first emphasizes that it has exclusive power to parole inmates

under specifically defined statutory standards. Id. at 11-12 (citing 61 Pa.C.S. §§ 6132(a)

(defining the Board’s power to parole state prisoners); 6135(a) (listing factors the Board

must consider when investigating whether to parole)). The Board notes that, pursuant to

that statutory scheme, public officials are obligated to furnish it with records. Id. at 12

(citing 61 Pa.C.S. § 6135(b) (“A public official who possesses such records or information

shall furnish the records or information to the board upon its request and without charge

so far as may be practicable[.]”)). The Parole Board avers that “[p]ublic officials who

submit documents to the Board do so with the understanding that the regulation means

what it says, i.e., their submissions are ‘private, confidential and privileged’ and will not

be provided to inmates being considered for parole.” Id.

Next, the Parole Board asserts that the Commonwealth Court relied on Coulter,

Jones, and Vu, but that none of those decisions supports “the conclusion that an inmate

13 This issue is before this Court on collateral appeal pursuant to Pa.R.A.P. 313.

[J-44-2025] - 12 can waive the privilege created by the Board’s regulation.” Id. The Board continues to

maintain that although those cases addressed RTKL claims and not the Section 61.2

privilege as a stand-alone bar to disclosure in discovery, they support the Board’s view

that the Board alone holds the privilege in the regulation. Id. at 12-14. The Board

maintains that the RTKL cases show that documents held by the Board are not public

records because they are privileged under Section 61.2. Id. at 14.

Addressing Toland’s ability to waive the privilege, the Board contests the

Commonwealth Court’s reading of the second clause of the regulation. It argues the

second clause mirrors language in the Prisons and Parole Code that requires the public

disclosure of the reasons for granting or denying parole. Id. at 15 (citing 61 Pa.C.S. §

6139(a)(5) (“Whenever an offender is paroled by the board, or whenever parole is refused

by the board, a brief statement of the reasons for the board’s action shall be filed of record

in the offices of the board and shall be at all reasonable times open to public inspection.”)).

Consequently, the Board argues the “requirement that the Board’s decisions are available

to the public would exist even if the regulation did not” and, thus, the “fact that this

statutory requirement is referred to in the regulation[] should not lead to the conclusion

that the inmate is the beneficiary of the regulation.” Id. The Board contends that the

proper reading of the plain text of Section 61.2 is that “the Board holds a privilege over

any documents it possesses concerning a parolee, but the Board’s decision to grant or

deny parole is public.” Id. at 15-16.

The Board also believes the Commonwealth Court’s analogy to the attorney-client

privilege is “flawed” because the “attorney-client privilege is intended to foster candid

communications between legal counsel and a client so counsel can provide legal advice

based upon the most complete information possible from the client.” Id. at 16 (citing

Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999)). It contends that

[J-44-2025] - 13 [u]nlike the attorney-client privilege, the privilege created by the Board’s regulation applies to documents the Board receives from third parties to the Board, so the Board can make a paroling decision based on the considerations required by the statute. None of the information sought by Toland’s discovery requests is provided to a potential parolee for the purpose of providing legal or any other guidance. Id. at 16.

Next, the Parole Board distinguishes the federal cases cited by the Commonwealth

Court because “federal courts are not bound by state privileges in federal habeas corpus

proceedings.” Id. at 17 (citing Fed. R. Evid. 501; Pearson v. Miller, 211 F.3d 57, 68 (3d

Cir. 2000)). The Board asserts that the “Commonwealth Court’s discounting of the

Board’s arguments vis-à-vis federal cases where state privileges do not apply appears to

be a challenge to the wisdom or policy behind the regulation, rather than an interpretation

of the regulation as it is written.” Id.

The Parole Board defends the Section 61.2 privilege against the general rule that

Pennsylvania law disfavors privileges, asserting that it is necessary to “promote frank

discussions” about the parole decisions. Id. at 18. The Board contends that, in

Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011), this Court recognized “the free

airing of concerns that privileges are intended to foster will be curtailed if parties are

unable to speak without worrying that a confidant ordinarily subject to a privilege will one

day be forced to repeat confidences.” Id. (quoting Harris, 32 A.3d at 249). It also argues

that “attempts to probe the thought and decision-making processes of judges and

administrators are generally improper” and that the privilege allows “the free exchange of

ideas and information.” Id. (citing Commonwealth. v. Vartan, 733 A.2d 1258, 1263 (Pa.

1999) (OISA)).

Finally, in the last two pages of its brief, the Board offers its only arguments

directed specifically at some of the requested documents:

[J-44-2025] - 14 [T]he Parole Decisional Instruments (PBPP-361) requested by Toland are circulated among Board members during the parole review process. These documents are used by Board members to record and communicate their observations, impressions, and professional opinions about inmates under parole consideration. Allowing inmates who have been denied parole to have access to Board member thoughts and impressions would put the Board members in the proverbial fishbowl and deter the frank exchange of ideas and opinions on whether a particular inmate should be paroled. Similarly, allowing inmates to waive the Board’s regulation and review [SOAB] assessments, records and recommendations from the [DOC], psychological reports, and other information that public officials are required to provide to the Board would … deter the frank exchange of information, ideas and opinions the Board relies on when deciding to parole an inmate. Id. at 19. Toland

Toland generally endorses the decision of the Commonwealth Court. Toland’s

Brief at 6 (stating that “[s]ince the regulation prevents the public from accessing

information about parolees, Toland is a beneficiary of the privilege created by the

regulation and he could potentially waive it” and that the Parole “Board has not met [its]

burden of showing that the regulation prevents disclosure of the requested discovery”).

However, he raises two threshold concerns; first, he contends that the Parole Board has

failed to show that the Commonwealth Court’s discovery ruling is appealable as a

collateral order under Pa.R.A.P. 313. Id. at 5; 7-9. Second, Toland also contends that

the Board abandoned, and therefore waived, its argument that the Commonwealth Court

erred in overruling the Board’s objections to his discovery requests. Id. at 5; 26-27.

With respect to Rule 313, Toland contends that the Parole Board made no

argument to establish the three elements of the collateral order doctrine.14 Toland

14 An appeal from a collateral order may be taken as of right. Pa.R.A.P. 313(a). A collateral order is one that is 1) separable from and collateral to the main cause of action; 2) involves a right too important to be denied review; and 3) concerns a claim that will be (continued…)

[J-44-2025] - 15 acknowledges that this Court has held that orders overruling claims of privilege are

immediately appealable under Rule 313. Toland’s Brief at 8. However, he contends “that

broad conclusion must be tempered by the appreciation that the collateral order doctrine

is to be narrowly construed in order to buttress the final order doctrine and in recognition

that a party may seek an interlocutory appeal by permission pursuant to Appellate Rule

312.” Id. (citing Rae, 977 A.2d at 1126). Toland complains that the Parole Board has

utterly failed to explain how Rule 313 is appropriate in the circumstances of this case and

argues that this Court should not make those arguments for the Board. Id. at 9.

Toland also asserts that the Parole Board waived its claim that the Commonwealth

Court erred by overruling the Board’s objections based on the Section 61.2 privilege. Id.

at 26. He notes that the Parole Board raised two claims in its jurisdictional statement,

one specifically challenging the court’s order overruling the Board’s objections, and a

second pertaining solely to the legal question regarding whether Toland can waive the

Section 61.2 privilege.

On the merits, Toland recounts the Commonwealth Court’s analysis and largely

endorses it. Id. at 11-12. He adds that the legislature explicitly created an evidentiary

privilege in the Prisons and Parole Code for the Parolee Homicide Review Team15 with

specificity. Id. at 12 (citing 61 Pa.C.S. § 6163(d) (“(d) Discovery.--The discussions,

deliberations and records of the Parolee Homicide Review Team are privileged and

confidential and shall not be subject to discovery, subpoena or introduction into evidence

in any civil or criminal action.”)). By contrast, Toland argues, Section 61.2 “does not

irreparably lost if review is postponed until after a final judgment. Rae v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121, 1125 (Pa. 2009) (citing Pa.R.A.P. 313(b)). 15 “The department shall establish the Parolee Homicide Review Team, which shall examine circumstances surrounding those who have committed criminal homicide while under supervision by the board.” 61 Pa.C.S. § 6161(a).

[J-44-2025] - 16 mention anything about records of the Parole Board … not being available through the

discovery p[r]o[c]ess.” Toland’s Brief at 12-13.16

Regarding the documents requested, Toland avers that “[e]ach of the documents

would provide evidence of relevant information necessary to prove his claims” and that

“[e]ach document contains factual information which the Board used in the parole

review process.” Id. at 13 (emphasis added). He asserts that he requested a Sexual

Offender Assessment Board (SOAB) report because it is integral to his ex post facto

claim. He contends the documents produced by the Parole Board itself (“Parole

Decisional Instrument, LSIR, and Static 99”) would show that his scores have not

changed over time and that the Board had used the wrong parole statutes. He avers that

the documents produced by the DOC in the Board’s possession (“DC-13A Integrated

Case Summary, vote sheets, reports, evaluations, and psychological reports”) will show

that the DOC does not find Toland to be a risk and that he “has completed all

programming, has no misconducts, continuously earned unanimous DOC parole

support[,] and state he should be paroled.” Id. at 14-15. Finally, he contends that the

documents requested from Philadelphia County will confirm or deny the “false information

stated to him” during past parole hearings. Id. at 15. He notes that the Parole Board

already released to him a 1993 pre-sentence report, which included “arrest reports,

investigation reports, criminal complaint forms and a mental health evaluation.” Id.

Toland argues that because of that release, the Board “waived any right to claim” that it

cannot “provide these requested records due to the regulation.” Id.

Finally, Toland points out that although the Parole Board faults the Commonwealth

Court for its reliance on Coulter, Jones, and Vu, the court had instead distinguished those

16Toland mistakenly refers to the legislature as the author of Section 61.2, instead of the Parole Board.

[J-44-2025] - 17 cases after the Board had cited them as controlling. Id. at 15-16. He agrees with the

lower court that the RTKL was intended to prevent disclosure to the public at large,

whereas concerns about public disclosure are not present in the context of discovery

“given the safeguards courts may erect around the discovery process.” Id. at 16 (citing

Pa.R.C.P. 4012);17 id. at 17 (citing Commonwealth v. Kauffman, 605 A.2d 1243 (Pa.

Super. 1992);18 Ben v. Schwartz, 729 A.2d 547 (Pa. 1999)).

The Parole Board did not to file a reply brief.

Analysis

The Parole Board ask this Court to reject the Commonwealth Court’s conclusion

that the privilege ostensibly created by Section 61.2 is waivable by a would-be parolee in

the context of discovery during a civil action. Before we address the merits of that claim,

we must first consider two preliminary matters raised by Toland. Jurisdiction and Waiver

Toland first contends that the Parole Board failed to meet its burden to show that

the lower court’s discovery order was immediately appealable under Rule 313. As we

recently explained, “Rule 313 contains three criteria that an order must satisfy to meet the

definition of a collateral order: separability, importance, and irreparable loss.” Brooks v.

17 Rule 4012 provides for a variety of protective orders in the context of discovery. 18 In Kaufmann, the Superior Court recognized: The fact that the legislature excluded certain documents from public inspection does not mean that the legislature intended to bar the use of such information in judicial proceedings. The purpose of the [RTKL] was to make certain information available to members of the public. Whether information should be made available for use in court proceedings involves entirely different considerations. Kauffman, 605 A.2d at 1246. We cited Kaufmann’s rationale approvingly in Schwartz. See Schwartz, 729 A.2d at 553-54 (stating the RTKL statute “is not applicable to discovery proceedings under the Pennsylvania Rules of Civil Procedure”).

[J-44-2025] - 18 Ewing Cole, Inc., 259 A.3d 359, 364 (Pa. 2021). The collateral order “doctrine is to be

construed narrowly to preserve the integrity of the general rule that only final orders may

be appealed; thus, the requirements for a collateral order are applied relatively

stringently.” In re Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505, 510

(Pa. 2006). Because the doctrine is to be construed narrowly, Toland argues that the

Parole Board failed to adequately demonstrate that the lower court’s discovery ruling on

the applicability of an evidentiary privilege by failing to elaborate on the separability,

importance, and irreparable loss factors. We disagree.

Whether discovery orders implicating evidentiary privileges are appealable under

Rule 313 is well-settled law. “[O]rders overruling claims of privilege and requiring

disclosure are immediately appealable” under the rule. Harris, 32 A.3d at 251. The

applicability of an evidentiary privilege can be addressed without consideration of the

merits of claims implicated by the content of the ostensibly privileged materials. See

Schwartz, 729 A.2d at 551-52. Furthermore, whether an agency may invoke a privilege

“implicates rights rooted in public policy, and impacts on individuals other than those

involved in this particular litigation.” Id. at 552. Finally, “the disclosure of documents

cannot be undone.” Id. Thus, an appeal from an order denying a government agency’s

assertion of an evidentiary privilege during discovery is immediately appealable under

Rule 313.

We agree with Toland that the Parole Board’s discussion of Rule 313 and its

requirements left room for elaboration, but the Board correctly cited both Harris and

Schwartz to support its assertion that this matter was immediately appealable under Rule

313. Jurisdictional Statement, 3/13/2024, at 1-2; Parole Board’s Brief at 1. Moreover,

Toland’s reliance on Rae is misplaced. In Rae, we considered whether to “adopt an

‘issue-by-issue application’ of Rule 313, or whether, once the collateral order test is

[J-44-2025] - 19 satisfied with respect to one issue, an appellate court has jurisdiction to consider every

issue within the ambit of the appealed order—that is, whether to adopt a ‘whole order

approach’ to Rule 313.” Rae, 977 A.2d at 1123. We rejected the whole order approach

in Rae. Id. at 1130. Here, however, the sole issue presented for our review involves the

Commonwealth Court’s holding that a privilege did not apply to the Parole Board’s

documents. That ruling falls squarely within the categorical holding of Harris, the same

decision cited by the Parole Board in its invocation of Rule 313. See Harris, 32 A.3d at

251. Accordingly, we reject Toland’s argument that the Parole Board failed to meet its

burden to establish appealability under Rule 313.

Next, Toland contends that the Parole Board’s issue is subject to waiver based on

its failure to include an issue that it previously raised in its Jurisdictional Statement. In

the Jurisdictional Statement, the Board presented us with the following issues: I. Did Commonwealth Court err by holding that Toland was the holder of the privilege created by the Board’s regulation at 37 Pa. Code § 61.2 and was therefore entitled to waive the privilege as its beneficiary?

II. Did Commonwealth Court err by overruling the Board’s objections to discovery requests that were based on the privilege created by 37 Pa. Code § 61.2? Jurisdictional Statement at 4. The Parole Board now presents only the first question

above, verbatim. Parole Board’s Brief at 4.

We ascertain no waiver in these circumstances. The Parole Board did not include

an issue in its brief that had not been included in its Jurisdictional Statement; to the

contrary, the Board omitted from its brief one of two issues raised in its Jurisdictional

Statement. Furthermore, the second issue in the Jurisdictional Statement was redundant;

the court’s overruling of the Board’s objections regarding the Section 61.2 privilege was

based solely on the court’s determination that Toland could waive it.

[J-44-2025] - 20 Merits

We now consider the question presented for our review, which asks whether the

privilege ostensibly created by Section 61.2 is waivable by a would-be parolee for

purposes of discovery in a civil action. Issues involving the application or waiver of a

privilege are questions of law. Levy v. Sen. of Pa., 65 A.3d 361, 367 (Pa. 2013).

Consequently, our standard of review is de novo and our scope of review is plenary. Id.

After such review, we conclude that the issue is moot because the Parole Board does not

have the power to create an evidentiary privilege that is enforceable in our courts. Thus,

we affirm the decision of the Commonwealth Court on this alternative ground.19

The essence of the matter before us concerns the Parole Board’s assertion that

Toland cannot waive the evidentiary privilege it ostensibly created when it promulgated

Section 61.2. That regulation provides: Records, reports and other written things and information, evaluations, opinions and voice recordings in the Board’s custody or possession touching on matters concerning a probationer or parolee are private, confidential and privileged; except that a brief statement of the reasons for actions by the Board granting or refusing a parole will at all reasonable times be open to public inspection in the offices of the Board. 37 Pa. Code. § 61.2.

By necessity, our plenary scope of review encompasses the predicate assumption

embedded in the question presented, which is that Section 61.2 created an evidentiary

privilege. Only if that assumption is true can we consider whether a potential parolee can

waive that privilege. It would be an exercise in futility to expound upon the waivability of

a non-existent privilege.

19 This Court has discretionary authority to affirm an order of a lower court for any valid reason supported by the existing record. See In re Adoption of C.M., 255 A.3d 343, 363 (Pa. 2021). This is because we review the propriety of a judgment or order, rather than any particular rationale employed below. Id.

[J-44-2025] - 21 An evidentiary privilege is a privilege20 that allows a person or entity “to refuse to

provide evidence or to protect the evidence from being used or disclosed in a proceeding.”

Evidentiary Privilege, BLACK’S LAW DICTIONARY (12th ed. 2024). For instance, the

attorney-client privilege is the “client’s right to refuse to disclose and to prevent any other

person from disclosing confidential communications between the client and the attorney.”

Attorney-Client Privilege, BLACK’S LAW DICTIONARY (12th ed. 2024). The deliberative

process privilege is another type of evidentiary privilege, which “permits the government

to withhold documents containing confidential deliberations of law or policymaking,

reflecting opinions, recommendations or advice.” Joe, 782 A.2d at 33 (emphasis

added). Where recognized, the deliberative process privilege “benefits the public, and

not the officials who assert the privilege.” Commonwealth v. Vartan, 733 A.2d 1258, 1264

(Pa. 1999) (OISA).

However, Pennsylvania law disfavors evidentiary privileges because they obstruct

the search for truth that is at the heart of judicial processes. See Stewart, 690 A.2d at

197 (citing Herbert, 441 U.S. at 175). Thus, we permit utilization of an evidentiary

privilege “only to the very limited extent that ... excluding relevant evidence has a public

good transcending the normally predominant principle of utilizing all rational means for

ascertaining the truth.” BouSamra v. Excela Health, 210 A.3d 967, 975 (Pa. 2019).

Consequently, a party opposing disclosure based on a privilege, including a government

party, bears the burden of showing that the privilege applies. Id. at 982; see also United

States v. Zubaydah, 595 U.S. 195, 209 (2022) (stating that “the Government bears the

burden of showing that the privilege should apply”); League of Women Voters v.

20 A privilege is a “special legal right, exemption, or immunity granted to a person or class of persons[.]” Privilege, BLACK’S LAW DICTIONARY (12th ed. 2024).

[J-44-2025] - 22 Commonwealth, 177 A.3d 1010, 1018 (Pa. Commw. 2017) (“The government bears the

initial burden to prove that the deliberative process privilege is applicable.”).

Here, the premise of the question presented for our review is that there is a

cognizable evidentiary privilege, ostensibly something resembling or expanding the

deliberative process privilege, created by Section 61.2. Parole Board’s Brief at 9 (“The

issue in this appeal is whether Commonwealth Court erred by concluding that a privilege

created by a Board regulation is waivable[.]”). The lower court accepted this premise

under the false assumption that it is a legislative mandate. Toland, 311 A.3d at 665 (“It

first bears noting here that the party seeking to invoke a privilege to prevent the production

of discovery—here, a statutory privilege—has the burden of demonstrating the

applicability of that privilege.”) (emphasis added). Launching its analysis from that false

premise, the Commonwealth Court considered how to correctly construct Section 61.2 to

ascertain its meaning. Id. at 666. Through that analysis, applying principles of statutory

construction,21 the court determined that the Section 61.2 privilege protected documents

held by the Parole Board from public exposure for the benefit of would-be parolees like

Toland and, because the court determined that Toland was the beneficiary of that

privilege, it held that he could waive it. Id. at 666-68. Because the Commonwealth Court

incorrectly identifies the privilege at issue as a creation of the legislature, it did not

consider whether the Parole Board, an executive branch agency, had the power to create

an evidentiary privilege binding on the courts. Thus, we begin our analysis by focusing

on whether the Parole Board has such power and authority to bind the courts with an

evidentiary privilege.

21 Although regulations, unlike statutes, are not expressions of legislative intent, courts nonetheless apply principles of statutory construction to ascertain the meaning of regulations. See S & H Transport, Inc. v. City of York, 210 A.3d 1028, 1038 (Pa. 2019) (stating that “we employ the interpretative principles of the [Statutory Construction Act, 1 Pa.C.S. §§ 1921-1991] to construe a regulation implementing a legislative enactment”).

[J-44-2025] - 23 Privileges stem from constitutional, common law, and statutory sources. See In re

Est. of McAleer, 248 A.3d 416, 425 (Pa. 2021). Privileges are exceptions to the

“fundamental maxim that the public … has a right to every man’s evidence.” United States

v. Bryan, 339 U.S. 323, 331 (1950) (quoting WIGMORE, EVIDENCE (3d ed.) § 2192). Thus,

when “we come to examine the various claims of exemption, we start with the primary

assumption that there is a general duty to give what testimony one is capable of giving,

and that any exemptions which may exist are distinctly exceptional, being so many

derogations from a positive general rule.” Id. (quoting WIGMORE, EVIDENCE (3d ed.)

§ 2192).

Constitutions give rise to privileges both explicit and implicit. The privilege against

self-incrimination exists in Pennsylvania due to the explicit commands of the Fifth

Amendment to the United States Constitution (applicable through the Fourteenth

Amendment), and separately through Article I, Section 9 of the Pennsylvania Constitution.

See Commonwealth v. Swinehart, 664 A.2d 957, 969 (Pa. 1995). Constitutional

privileges may also rise implicitly from constitutional text and structure. In Nixon, the

United States Supreme Court recognized a “presumptive privilege for Presidential

communications” that derives in part from “the separation of powers under the

Constitution.” Nixon, 418 U.S. at 708.

Another source of privileges is the common law. The attorney-client privilege

originated in the common law and “is the oldest of the privileges for confidential

communications[.]” McAleer, 248 A.3d at 425 (quoting Upjohn Co. v. United States, 449

U.S. 383, 389 (1981)). Pennsylvania courts have also recognized a privilege that

provides immunity from liability for statements made in judicial proceedings. See Post v.

Mendel, 507 A.2d 351, 355 (Pa. 1986) (“When alleged libelous or defamatory matters, or

statements, or allegations and averments in pleadings or in the trial or argument of a case

[J-44-2025] - 24 are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for

making any of them.”). Privileges that existed at common law are expressly preserved in

our evidentiary rules. See Pa.R.E. 501 (“Privileges as they now exist or may be modified

by law shall be unaffected by the adoption of these rules.”).

The third source of privileges is legislative. Pennsylvania courts recognize and

apply statutory privileges created by our General Assembly. Many statutory privileges

are codified common law privileges, including: the attorney-client privilege, 42 Pa.C.S. §§

5916 (criminal), 5928 (civil); the spousal communications privilege, 42 Pa.C.S. §§ 5913

(criminal), 5923 (civil); the clergy-communicant privilege, 42 Pa.C.S. § 5943; the

psychotherapist-patient privilege, 42 Pa.C.S. § 5944; and the physician-patient privilege,

42 Pa.C.S. § 5929. However, some statutory privileges have no common law source or

analogue. For instance, the General Assembly has adopted evidentiary privileges

applicable to, inter alia, communications with sexual assault counselors, 42 Pa.C.S. §

5941.1(b), school personnel, 42 Pa.C.S. § 5945, crime stoppers, 42 Pa.C.S. § 5945.2,

and human trafficking caseworkers, 42 Pa.C.S. § 5945.3(b). And, as noted above, the

General Assembly created a privilege in the Parole and Prisons Code applicable to the

Parolee Homicide Review Team. 61 Pa.C.S. § 6163(d).

Here, the Parole Board attempts to invoke a self-created, powerful, and sweeping

privilege that deviates from the everyman’s evidence rule. It does not cite a constitutional,

common law, or statutory source for that privilege. Instead, the Parole Board cites only

Section 61.2, a regulation promulgated by the Board itself. This Court has never

recognized a privilege created by the executive branch or its agencies that would bind the

evidentiary decisions of the judicial branch. Indeed, it does not appear that such

[J-44-2025] - 25 privileges exist today in any jurisdiction.22 However, asking this Court to determine

whether the Section 61.2 privilege is waivable or unwaivable effectively requires us to

endorse the notion that a government agency like the Parole Board possesses the power

and authority to create new evidentiary privileges or expand existing ones. Nothing in our

case law, nor in the case law of any jurisdiction that we are aware of, provides executive

agencies with the independent power or authority to create an evidentiary privilege that

limits discovery. To the contrary, it is axiomatic that “Commonwealth agencies have no

inherent power to make law or otherwise bind the public or regulated entities” and, thus,

“an administrative agency may do so only in the fashion authorized by the General

Assembly.” Marcellus Shale Coal. v. Dep’t of Env’t Prot., 292 A.3d 921, 927 (Pa. 2023)

(quoting Nw. Youth Servs., Inc. v. Commonwealth, Dep’t of Pub. Welfare, 66 A.3d 301,

310 (Pa. 2013)). We ascertain no legislative authority permitting the Parole Board to

create the evidentiary privilege in Section 61.2.23

Moreover, when the General Assembly intended to create a privilege applicable in

the parole context, it did so explicitly. As noted by Toland, the General Assembly recently

created an evidentiary privilege in the Prisons and Parole Code. Section 6163 of Title 61

provides: “The discussions, deliberations and records of the Parolee Homicide Review

22 “Though the executive may claim privilege, it has historically not held any power to proclaim privilege.” Mila Sohoni, The Power to Privilege, 163 U. PA. L. REV. 487, 495 (2015) (emphasis in original). 23 In her law review article, Professor Sohoni addressed the novel circumstance that arose under the Affordable Care Act, which, inter alia, “authorized the Secretary of Labor to promulgate regulations that ‘provide[] an evidentiary privilege for, and provide[] for the confidentiality of communications between or among’ a host of federal and state entities, including the Treasury Department, the Department of Justice, state attorneys general, and an association of state insurance regulators with no official governmental status whatsoever.” Sohoni, supra, at 489 (quoting 29 U.S.C. § 1134(d)). That is not the situation here. The Parole Board has never asserted that the General Assembly delegated the power to create an evidentiary privilege, nor have we discovered evidence that such delegation occurred.

[J-44-2025] - 26 Team [(“PHRT”)] are privileged and confidential and shall not be subject to discovery,

subpoena or introduction into evidence in any civil or criminal action.” 61 Pa.C.S.

§ 6163(d) (emphasis added). The General Assembly also created a separate evidentiary

privilege for “any and all statements or testimony of the victim and of any family member

submitted” to the DOC. 61 Pa.C.S. § 5906(a). As with Section 6163, Section 5906

expressly delineated the scope of the evidentiary prohibition created by specifying that

such statements shall not “be subject to subpoena or discovery[,]” “introduced into

evidence in any judicial or administrative proceeding[,]” nor “released to the inmate.” Id.

§ 5906(a)(2)-(4).

No statutory privilege resembling that ostensibly created by Section 61.2 appears

in the Prisons and Parole Code. As recognized by Toland in distinguishing the language

of Section 61.2 from the statutory text of Section 6163, the former does not contain

language describing the scope of the evidentiary privilege. More important, however, is

that the General Assembly created privileges in Sections 5906 and 6163 applicable in

specific circumstances for statements from victims held by the DOC and the deliberations

of the PHRT, respectively. The General Assembly did not create a broadly applicable

evidentiary privilege that applies to anything “touching on matters concerning a

probationer or parolee” as articulated in the regulation. 37 Pa. Code. § 61.2. We must

pay attention not just to what the legislature has said, but also to what it has not said.

Under the doctrine of expressio unius est exclusio alterius, “the inclusion of a specific

matter in a statute implies the exclusion of other matters.” Thompson v. Thompson, 223

A.3d 1272, 1277 (Pa. 2020) (citation omitted). Contrary to the Commonwealth Court’s

erroneous assumption, Section 61.2 is not a statutory privilege.

Nor is there a common law source for the Section 61.2 privilege. The Parole Board

cited Coulter below in support of its interpretation of Section 61.2, but the Commonwealth

[J-44-2025] - 27 Court correctly distinguished Coulter insofar as it focused on whether the disputed

documents were presumptively public, and not the applicability of a privilege created by

the regulation. Coulter conceded that Parole Board records were generally “exempt from

disclosure” under the RTKL “because they were not public records.” Coulter, 48 A.3d at

517, 519.24 He argued unsuccessfully that the Parole Board was nonetheless barred

from invoking Section 61.2 to prevent disclosure under an estoppel theory because the

Parole Board had already disclosed the disputed documents to third parties. Id. at 519.25

The RTKL “is the statute providing for access to public records in Pennsylvania.”

Bowling v. Off. of Open Records, 75 A.3d 453, 455 (Pa. 2013) (emphasis added). Under

the modern version of the RTKL in effect since 2009, “agency records are presumed to

be public records, accessible for inspection and copying by anyone requesting them, and

must be made available to a requester unless they fall within specific, enumerated

exceptions or are privileged.” Id. at 457. However, while privileged materials are not

available through the RTKL, the applicability of a privilege was not the basis for rejecting

the RTKL request in Coulter. Instead, an exception applied for a “record of an agency

relating to a noncriminal investigation[.]” Coulter, 48 A.3d at 519 (quoting 65 P.S. §

67.708(b)(17)). Whether a privilege applied was not dispositive in Coulter.

The lower court also considered Jones and Vu. Coulter followed closely on the

heels of Jones but did not cite that decision. Like Coulter, Jones discussed Section 61.2

as evidence that Parole Board records are confidential, but not in terms of any privilege

created. The Jones Court rejected the claim that parolees and would-be parolees must

24 The court observed that the records did not fall under the general rule that a “record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record” because an exception applied. Coulter, 48 A.3d at 519 (quoting 65 Pa.C.S. § 67.305(a)). 25 The Coulter court reasoned that even if third party disclosure occurred (a fact the Parole Board disputed), the records remained confidential. Coulter, 48 A.3d at 519.

[J-44-2025] - 28 be treated differently under Section 61.2 for purposes of determining whether disclosure

under the RTKL is permitted, and the court concluded that they are not to be treated

differently. Jones, 993 A.2d 339, 343 (“In promulgating Section 61.2, the Board ensures

the confidentiality of materials it gathers in fulfilling its role of evaluating existing parolees

and those seeking parole as well.”). Indeed, an open-records officer in Jones had initially

determined in the alternative that the records were not disclosable under the RTKL

because they were privileged pursuant to Section 61.2. On appeal before the OOR, that

issue was deemed moot, and the Parole Board did not pursue it in its brief to the

Commonwealth Court in Jones. See Jones, 993 A.2d at 341 n.4.

Likewise, in Vu, Section 61.2 was discussed solely in the context of whether Parole

Board records are confidential (and therefore not public) for purposes of the RTKL. The

Vu court actually cited the provision of the RTKL that prohibits disclosure of privileged

records, see Vu, 200 A.3d 633 (citing 65 Pa.C.S. § 67.305(a)(2)), but it did not rely on

that provision in determining that the Parole Board records at issue in that case were not

available to a parolee through the RTKL, applying Jones to hold that they were excepted

from the public records presumption because they are deemed confidential under Section

61.2, id.

Of course, Coulter, Jones, and Vu are not binding decisions on this Court. But

they do tend to show that the Commonwealth Court has never relied on Section 61.2’s

ostensible creation of a privilege to deny a would-be parolee access to Parole Board

records. Moreover, this Court has never cited Section 61.2 for any reason. Thus, we are

confident in our conclusion that the Section 61.2 privilege has never been recognized by

the judiciary. We also observe that there is no constitutional provision that suggests that

agencies created by the General Assembly possess a privilege as defined in Section

61.2.

[J-44-2025] - 29 Despite sporadic citations to decisions discussing the deliberative process

privilege, the Parole Board maintains in this appeal that the at-issue privilege was

“created” by Section 61.2, as reflected in the question presented for our review. The

Board never asks this Court to recognize the applicability of a deliberative process

privilege to its decisions to grant or deny parole, and Section 61.2 cannot independently

create one. Consequently, the question of whether a common law deliberative process

privilege or any other established privilege applies to any or all of the documents held by

the Parole Board is not before us today. As this Court has firmly established, a party

claiming a privilege has the affirmative burden to prove its applicability. BouSamra, 210

A.3d at 975. Because we conclude that Section 61.2 does not create any privilege, the

Parole Board cannot meet that burden.

Conclusion

For the reasons set forth above, we hold that Section 61.2 does not create an

evidentiary privilege. Because there is no evidentiary privilege created by Section 61.2,

it matters not to whom the non-existent privilege applies. Thus, we affirm the order of the

lower court, albeit based upon a different rationale.

Chief Justice Todd and Justices Dougherty, Wecht, Mundy, Brobson and

McCaffery join the opinion.

[J-44-2025] - 30