COMMONWEALTH OF 
OFFICE OF OPEN RECORDS

AUSTIN NOLEN,
Requester,
v. DOCKET NO. AP 2016-1 187
PHILADELPHIA DISTRICT 
OFFICE,

Respondent.

DECLARATION OF ASSISTANT DISTRICT ATTORNEY BJ GRAHAM-RUBIN IN
OPPOSITION TO THE RTKL APPEAL OF AUSTIN NOLEN

I, Assistant District Attorney BJ Graham-Rubin, intending to be legally bound and subject
to the penalties of 18 Pa. C.S. 4904 (relating to unsworn falsi?cation to authorities), do declare
and af?rm as follows:

I. I am the Chief of the Civil Litigation Unit and Open Records Of?cer for the
Philadelphia District Attorney?s Of?ce 

2. On or about June 21, 2016, the Of?ce received a Right-to-Know Law 
request from Austin Nolen (?Requester?), seeking ?[t]he Of?ce?s handbook of policies and
procedures, including procedures ?to guide the exercise of prosecutorial discretion, and standard
operating procedures for the office.?

3. Based on my experience as the Of?ce?s Open Records Of?cer and Chief of its Civil
Litigation Unit, I was aware that no such ?handbook of policies and procedures" regarding
prosecutorial functions existed, and I denied Requester?s RTKL request on that basis.

4. Requester timely appealed, referencing language in a recent Supreme Court
decision and a newspaper article regarding unwritten ?policies? of the Office as if they were

written policies that could be produced under the RTKL.

5. After an attorney under my supervision subsequently reached out to Requester in
an attempt to resolve the issue on appeal without the need for further litigation, the instant appeal
was stayed while Requester ?led a second RTKL request seeking production of the Of?ce?s new
prosecutor training manual.

6. After invoking a thirty-day extension, I obtained and reviewed a copy of the
Of?ce?s most recent (2015) training manual.

7. Upon reviewing the manual and researching case law, I determined that the entire
content of the manual was not subject to disclosure under the RTKL pursuant to the work product
doctrine. Speci?cally, the manual consists of instruction regarding prosecution strategy,
substantial research, interpretation of case law, and opinions and theories based on the experience
of veteran prosecutors. indeed, an order compelling the District Attorney?s Of?ce to produce its
training manual would severely undermine the adversarial process fundamental to the criminal
justice system, which the attorney work product doctrine is designed to protect.

8. Furthermore, my review of the manual and research of relevant case law revealed
that the entire content of the manual was not subject to disclosure under the RTKL pursuant to the
predecisional deliberative process privilege set forth in 65 PS. This
privilege, which applies to encourage the free and frank exchange of ideas and opinions of
government personnel regarding a course of action not yet taken, certainly applies to the strategic
plan of the Philadelphia District Attorney?s Of?ce concerning training its new prosecutors
regarding their actions in future criminal cases.

9. Finally, my review of the manual and research of the case law revealed that portions
of the manual were exempt from disclosure under the RTKL pursuant to various other provisions,

such as 65 PS. (?disclosure . . . would be reasonably likely to result in a

H:

substantial and demonstrable risk of physical harm to or the personal security of an individual?);
(?if disclosed, would be reasonably likely to jeopardize or threaten public safety or
preparedness or public protection activity?); l) record that constitutes or reveals
. . con?dential proprietary information"); (criminal investigative exemption);

and (noncriminal investigative exemption).
10. In light of the foregoing, I issued a decision denying Requester?s second RTKL

request.

I declare under penalty of perjury under the laws of the Commonwealth of 

that the foregoing is true and correct.

Date: September 12, 2016 mm

Graham-Rubin
Open Records Of?cer
Philadelphia District Attorney?s Of?ce