No Agency-Made Privileges: Pennsylvania Supreme Court Holds 37 Pa. Code § 61.2 Does Not Create an Evidentiary Privilege

Introduction

In Toland v. Pennsylvania Board of Probation and Parole (Pa. Supreme Court, Oct. 6, 2025, No. 11 EAP 2024), the Pennsylvania Supreme Court issued a first‑impression ruling with far‑reaching separation‑of‑powers implications: an administrative agency cannot create an evidentiary privilege by regulation. Rejecting the Parole Board’s longstanding reliance on 37 Pa. Code § 61.2—stating that Board records “touching on matters concerning a probationer or parolee are private, confidential and privileged”—the Court held that Section 61.2 does not and cannot function as an evidentiary privilege to block discovery in litigation. The Court affirmed the Commonwealth Court’s discovery order, but on a distinct rationale: because no privilege exists, there is nothing to waive.

The case arises from Christopher Toland’s constitutional challenge to multiple parole denials (2017–2019). During discovery, the Board refused to produce a wide array of evaluative and decisional materials, invoking Section 61.2. The Commonwealth Court overruled the objections, reasoning that the parolee is the privilege’s beneficiary and can waive it. On interlocutory appeal, the Supreme Court sided with Toland on a different ground, clarifying that privileges binding Pennsylvania courts must derive from the Constitution, the common law, or statute—not from an agency’s own regulation.

Background

Toland pleaded guilty in 1993 to rape, kidnapping, and related offenses and received an aggregate term of 11–40 years. He became parole eligible in 2004. Despite repeated Department of Corrections (DOC) support, the Pennsylvania Parole Board denied parole 14 times (2004–2020). Toland sought mandamus relief in the Commonwealth Court, alleging:

Due process violations (Board relied on false information; arbitrary and capricious decision making).
Ex post facto violations (application of parole standards adopted after his sentence became final).

After the Commonwealth Court overruled preliminary objections in 2021 (263 A.3d 1220), the case proceeded to discovery. Toland requested, among other items:

SOAB assessments (circa 1996–1999).
Parole Decisional Instruments (PBPP-361).
LS/IR and Static-99 assessments.
DOC Integrated Case Summaries (DC‑13A), vote sheets, and psychological reports.
Any DOC reports suggesting community risk.
Historical county records (presentence, complaints, psychological reports) reviewed in the parole process.

The Parole Board asserted that producing these materials would violate Section 61.2 because the Board’s decision‑making processes are “private, confidential, and privileged.” The Commonwealth Court rejected that position and other undeveloped objections (including CHRIA and Pa.R.Crim.P. 703, which the Board failed to carry or abandoned), prompting this collateral appeal.

Summary of the Opinion

Writing for a unanimous Court, Justice Donohue affirmed, but not because a parolee can waive the asserted “privilege.” Instead, the Court held that Section 61.2 does not create an evidentiary privilege at all. Pennsylvania evidentiary privileges are disfavored and must be grounded in:

Constitutional law (e.g., the privilege against self‑incrimination),
Common law (e.g., attorney‑client privilege), or
Statute (e.g., explicit privileges enacted by the General Assembly).

Agencies have no inherent power to create evidentiary privileges by regulation. The General Assembly has expressly created discrete privileges in the parole space—for example, for Parolee Homicide Review Team materials (61 Pa.C.S. § 6163(d)) and for victim statements submitted to DOC (61 Pa.C.S. § 5906)—but it has not enacted a global privilege for all Board materials “touching on matters concerning a probationer or parolee.” Section 61.2, at most, speaks to confidentiality and public access under the Right‑to‑Know Law (RTKL); it does not limit court‑ordered discovery.

The Court therefore did not reach who would “hold” or “waive” any such privilege. It also left open whether existing, recognized privileges (such as the deliberative process privilege) might protect particular documents upon an adequate showing—an issue not argued by the Board.

Analysis

Appealability and Threshold Matters

The Court first confirmed jurisdiction under the collateral order doctrine (Pa.R.A.P. 313). Orders overruling claims of privilege and requiring disclosure are immediately appealable because they are separable, implicate important rights, and risk irreparable harm (once disclosed, confidentiality cannot be restored). See Commonwealth v. Harris, 32 A.3d 243, 251 (Pa. 2011); Ben v. Schwartz, 729 A.2d 547, 551–52 (Pa. 1999). The Court rejected arguments that the Board failed to meet Rule 313’s requirements and found no issue‑waiver in the Board’s briefing posture.

Precedents and Authorities Shaping the Decision

Privileges disfavored; sources of privilege:
- Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997); Herbert v. Lando, 441 U.S. 153 (1979); United States v. Nixon, 418 U.S. 683 (1974) (privileges are narrowly construed; they impede the truth‑seeking function).
- In re Estate of McAleer, 248 A.3d 416 (Pa. 2021); Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney‑client privilege derives from common law).
- Pa.R.E. 501 (privileges preserved as modified by law).
Burden to prove privilege: BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (party invoking privilege bears burden); United States v. Zubaydah, 595 U.S. 195 (2022) (government bears burden for state‑secrets privilege); League of Women Voters v. Commonwealth, 177 A.3d 1010 (Pa. Commw. 2017) (deliberative process privilege burden).
Separation of powers; agency authority: Marcellus Shale Coalition v. DEP, 292 A.3d 921 (Pa. 2023) (agencies have no inherent power to bind the public; must act within legislative authorization); Nw. Youth Servs., Inc. v. Dep’t of Pub. Welfare, 66 A.3d 301 (Pa. 2013) (same principle).
Statutory context in parole law: 61 Pa.C.S. § 6163(d) (privilege for Parolee Homicide Review Team) and § 5906 (privilege for victim statements submitted to DOC) demonstrate the General Assembly knows how to craft explicit evidentiary privileges when intended; the omission of a general privilege for Board records triggers expressio unius. See Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020).
RTKL vs. discovery: Ben v. Schwartz, 729 A.2d at 553–54 (RTKL is not a discovery code); Commonwealth v. Kauffman, 605 A.2d 1243 (Pa. Super. 1992) (confidentiality under open‑records law does not equate to a courtroom privilege).
RTKL cases cited below: Coulter v. PBPP, 48 A.3d 516 (Pa. Commw. 2012); Jones v. OOR, 993 A.2d 339 (Pa. Commw. 2010); Vu v. PBPP, 200 A.3d 627 (Pa. Commw. 2018). These confirm Section 61.2 supports confidentiality for purposes of public access, but they did not recognize an evidentiary privilege for litigation discovery.

The Court’s Legal Reasoning

The Court’s reasoning proceeds in clear steps:

Identify the nature of what the Board claims. The Board asserted a “privilege created by the Board’s regulation,” not an established constitutional, common law, or statutory privilege.
Locate lawful sources of evidentiary privilege. Privileges binding on courts arise from constitutional text or structure, the common law, or Acts of the General Assembly. They are exceptions to the “everyman’s evidence” rule (United States v. Bryan, 339 U.S. 323, 331 (1950)).
Confirm lack of agency authority to create a courtroom privilege. Administrative agencies cannot create binding evidentiary privileges by regulation; nothing in the Parole Code delegates such power to the Board. The Court relied on general administrative law principles and the absence of legislative authorization.
Read the parole statutes for context. The General Assembly enacted specific evidentiary privileges (61 Pa.C.S. §§ 5906, 6163(d)). It did not enact a global privilege for Board files. By expressio unius, the targeted privileges imply the exclusion of other unmentioned privileges.
Reconcile with RTKL jurisprudence. Section 61.2 may inform the RTKL’s presumption of public access and exceptions, but RTKL cases (Coulter, Jones, Vu) do not translate into courtroom evidentiary privileges. As Schwartz and Kauffman instruct, open‑records confidentiality is distinct from litigation discovery rules.
Apply burden and narrow construction. Because privileges are disfavored and narrowly construed, and because the Board grounded its objection solely in Section 61.2, the Board failed to carry its burden.

Result: Because Section 61.2 does not create an evidentiary privilege, the debate over who “holds” and may “waive” it is moot. The Court affirmed the discovery order on that alternative ground, leaving intact the lower court’s separate findings that other objections (e.g., CHRIA, Rule 703) were inadequately developed or waived.

What the Court Did Not Decide

Deliberative process privilege (or other recognized privileges). The Board did not ask the Court to apply the common law deliberative process privilege to specific documents; the Court therefore did not decide whether such a privilege applies to particular parole decision materials. Future litigants must assert and prove all elements of any recognized privilege on a document‑by‑document basis.
CHRIA and Rule 703. The Commonwealth Court found the Board’s invocations of CHRIA (18 Pa.C.S. § 9106) and Pa.R.Crim.P. 703 insufficiently developed; those rulings were not pursued in this appeal.
Merits of Toland’s constitutional claims. The Supreme Court addressed only the discovery privilege issue. Toland’s due process and ex post facto claims remain for adjudication below.

Impact

Immediate Effect on Parole Litigation

Discovery access expands. Parole applicants challenging denials in court can seek Board and DOC materials without being categorically blocked by Section 61.2. The Board must justify withholding with recognized privileges or statutory bars, not a regulation.
Protective orders remain available. Trial courts can craft protective orders (Pa.R.C.P. 4012) to safeguard sensitive information without collapsing discovery into a categorical “privileged” box.
Heightened accountability. The decision promotes accuracy and fairness by enabling judicial review of the factual bases and reasoning inputs behind parole decisions when constitutional rights are alleged to be at stake.

Broader Administrative Law and Separation of Powers

No agency‑manufactured courtroom shields. Across Pennsylvania government, regulations declaring materials “private, confidential, and privileged” cannot, without more, block discovery in court. Agencies must point to a constitutional, common‑law, or statutory privilege.
Legislative clarity governs. If the General Assembly wants to protect specific categories (e.g., homicide review teams, victim statements), it knows how to enact explicit, tailored privileges that specify the scope (discovery/subpoena/introducibility) and any exceptions.
RTKL remains distinct. Agencies may still rely on regulatory confidentiality to defeat public RTKL requests where statutory exceptions apply, but RTKL doctrine does not control civil discovery.

Likely Litigation and Policy Responses

Case‑by‑case privilege assertions. Agencies may increase reliance on recognized privileges (e.g., deliberative process, attorney‑client, work product), supported by detailed privilege logs and declarations establishing the elements.
Legislative proposals. Stakeholders may seek targeted statutory privileges for particular streams of sensitive information (bearing in mind the judiciary’s disfavor of broad, categorical exclusions).
Refined discovery management. Courts will balance litigants’ need for evidence against confidentiality concerns using tailored protective orders, redactions, and phased discovery rather than blanket privilege claims.

Practice Pointers

For agencies and counsel:
- Audit regulations and manuals that label records “privileged.” Treat them as confidentiality directives, not courtroom privileges.
- When resisting discovery, identify and prove an established privilege or statutory bar; avoid boilerplate and cite specific statutes (e.g., 61 Pa.C.S. §§ 5906, 6163(d)) where applicable.
- Use protective orders to address safety or privacy concerns (e.g., addresses, victim information, medical details).
For litigants seeking discovery:
- Challenge agency objections grounded solely in regulatory text; demand identification of recognized privileges with particularity.
- Be prepared to accept protective conditions to mitigate confidentiality risks while obtaining necessary information.

Complex Concepts Simplified

Evidentiary privilege: A legal right to refuse to disclose evidence in court (e.g., attorney‑client). Privileges are narrowly construed, and the party invoking them must prove they apply.
Confidentiality vs. privilege: “Confidential” means not publicly disseminated; it does not automatically mean immune from court‑ordered discovery. RTKL confidentiality does not equal a courtroom privilege.
Collateral order doctrine (Pa.R.A.P. 313): Allows immediate appeal of certain non‑final orders that are separate from the merits, involve important rights, and would be irreparably lost if review waited until after final judgment (e.g., orders compelling disclosure of allegedly privileged materials).
Deliberative process privilege: A qualified common‑law privilege that can protect predecisional, deliberative communications within government; it must be specifically invoked and proven, and it is subject to balancing.
Expressio unius est exclusio alterius: “The expression of one thing implies the exclusion of others.” When the legislature creates specific privileges (e.g., §§ 5906, 6163(d)), courts presume it chose not to create broader, unwritten ones.
Mandamus: An extraordinary remedy compelling a public official/agency to perform a mandatory duty; it can be used to remedy constitutional violations in parole decisions where direct appellate review is unavailable.
RTKL vs. discovery: RTKL governs public access to “public records.” Discovery is governed by the Rules of Civil Procedure and evidentiary law; different standards and purposes apply.

Conclusion

Toland establishes an important separation‑of‑powers and evidence‑law principle in Pennsylvania: administrative agencies cannot create evidentiary privileges by regulation. Section 61.2 of the Parole Board’s regulations—while relevant to public‑access questions under the RTKL—does not bar discovery in civil litigation. The decision strengthens the judiciary’s control over courtroom evidence, reaffirms that privileges are exceptional and must be grounded in constitutional, common‑law, or statutory authority, and clarifies that confidentiality regimes do not automatically translate into litigation shields.

Key takeaways:

Section 61.2 does not create a privilege; it cannot be invoked to foreclose discovery.
The Court affirmed the Commonwealth Court’s order compelling discovery, on the alternative ground that no privilege exists to waive.
Agencies must use recognized privileges or seek protective orders; boilerplate reliance on regulatory “confidentiality” will not suffice.
The legislature remains free to craft precise, narrowly tailored privileges (as it has in §§ 5906 and 6163(d)); courts will construe such privileges narrowly.

While the merits of Toland’s due process and ex post facto claims remain pending, this decision will shape discovery battles across Pennsylvania agencies and courts, ensuring that the limits on access to evidence in litigation come from established law, not unilateral agency edict.

Case Details

Court: Supreme Court of Pennsylvania (Eastern District)
Decided: October 6, 2025
Opinion by: Justice Donohue (Chief Justice Todd; Justices Donohue, Dougherty, Wecht, Mundy, Brobson, McCaffery joining)
Docket: No. 11 EAP 2024
Disposition: Affirmed (on alternative grounds)
Holding: 37 Pa. Code § 61.2 does not create an evidentiary privilege; agencies lack authority to create privileges by regulation.