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July 21, 1997


State Agency Department of Corrections.

Before: Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith


FILED: July 21, 1997

Hayes A. Hunt petitions for review of the denial by the Department of Corrections (DOC) of his request under the Act commonly known as the Right-to-Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1 - 66.4, for access to information relating to the imprisonment of Leon Moser. Hunt states six questions: (1) whether DOC's denial of Hunt's request for documents relating to the execution of Moser violated the Right-to-Know Act; (2) whether the execution of Moser was a "public" action; (3) whether Moser's prison records in whole or in part are public records; (4) whether documents produced by DOC relating to the execution of Moser are public records; (5) whether some of Moser's prison records are considered to be data, compilations or summaries; and (6) whether any exception in the Right-to-Know Act applies to the documents requested. DOC asserts that Hunt's requests in part were not sufficiently specific and in part sought access to confidential, non-public material.

Leon Moser was executed by lethal injection on August 16, 1995. By letter of June 26, 1996, Hunt, a law student at Temple University, requested permission from DOC to "examine and/or copy any and all of Leon Moser's ... files from Graterford, SCI" under the Right-to-Know Act. Hunt asserted that Moser had no privacy right in the requested materials because he was dead. In a letter of August 16, 1996, Hunt stated that his original request included but was not limited to all documents provided by Moser to DOC, all documents provided by DOC to Moser, Moser's medical records and his mental health records. *fn1 The Chief Counsel of DOC responded by letter of September 5, 1996, denying the request and stating that the documents did not constitute "public records" within the definition of the Right-to-Know Act; that documents relating to Moser's medical condition and mental health could not be disclosed absent a release signed by Moser, and DOC was not aware of any such release; and that the documents "may be confidential or privileged under various provisions of state or federal statutory, regulatory or case law."


The Court turns first to DOC's assertion that both Hunt's first and second requests for information in part lacked sufficient specificity. DOC relies upon Nanayakkara v. Casella, 681 A.2d 857 (Pa. Commw. 1996), which was decided August 21, 1996, five days after Hunt's second request. There an inmate made a written request to the records officer of his prison to examine his "inmate records." On his appeal from DOC's denial, this Court noted the broad general definition of "public records" provided in Section 1(2) of the Right-to-Know Act, 65 P.S. § 1(2), and also the several exceptions to that definition found in the same Section. The Court held that a person making a request has an obligation to identify with some specificity the type of information being sought in order for the agency to be required to provide access. The Court concluded that the request for "inmate records" encompassed some materials that would not be public records and others that would be; therefore, it was not a proper request for "public records" because it did not provide sufficient facts from which the Court could determine the type of records requested.

DOC notes that documents given by or to Moser might include, among other things, every request slip or grievance that he filed, statements of his account, commissary purchases and responses to his request slips or grievances. DOC asserts that Hunt's second written request is the type of non-specific request that this Court held was properly denied in Nanayakkara. In a reply brief Hunt concedes that his first request lacked sufficient specificity under Nanayakkara but contends that the second one did not. Hunt suggests that the more detailed 20-point list of items in his brief could be regarded as a separate request and DOC's brief as a denial, creating a new proceeding, which could be consolidated with the present case or remanded.

This case is presented in the Court's appellate jurisdiction. Section 4 of the Right-to-Know Act, 65 P.S. § 66.4, provides that any citizen who is denied the rights to inspect public documents and to make extracts, copies or photographs of them under Sections 2 and 3, 65 P.S. §§ 66.2 and 66.3, may appeal to the appropriate court. Where a Commonwealth agency denies access, the proper procedure is the filing of a petition for review in this Court's appellate jurisdiction under Section 763(a)(1) of the Judicial Code, as amended, 42 Pa. C.S. § 763(a)(1), which provides for jurisdiction in this Court of appeals from Commonwealth agency actions. Nanayakkara. Hunt's suggestion here goes well beyond the mere substitution of parties that was denied in Statewide Bldg. Maintenance, Inc. v. Pennsylvania Convention Center Authority, 160 Pa. Commw. 544, 635 A.2d 691 (Pa. Commw. 1993). The Court declines the invitation to create a separate request, denial and appeal on the basis of the briefs in this proceeding and therefore does not reach the question of the status of the more specific items identified by Hunt for the first time in this appeal.

A dismissal of Hunt's appeal on the basis of lack of specificity does not determine that any particular materials are not public records as to which access may be denied. The person making the request is free to make another, more specific request. No provision of the Right-to-Know Act limits a person seeking information to a single request; in fact, it is likely that someone granted access may learn in the course of inspection of other materials that he or she wishes to examine. The Court therefore dismisses Hunt's appeal in regard to his request for all documents given by DOC to Moser or by Moser to DOC and to other information not identified at all. *fn2

Hunt is certainly correct in his implied contention that when a state agency regards a particular request as lacking sufficient specificity, it has a duty in good faith to communicate that opinion to the person making the request, so that the parties may attempt to resolve the question before resorting to an appeal. The tension between an agency's need for some specificity in order to respond to a request and a requesting person's desire to see as much as possible may be eased through good faith communication between them. When issues remain for appeal they will be narrower, and this Court will have a more useful record to consider.

Essentially the same reasoning applies to denials based upon exceptions to the definition of public records in Section 1(2) because of a prohibition against disclosure in statute law or order or decree of court or because disclosure would lead to the loss of federal funds or would operate to the prejudice or impairment of a person's reputation or personal security. An agency does not act in keeping with the spirit of the Right-to-Know Act when, as DOC did here, it denies access without identifying the authority it is relying upon and explaining how it applies to the requests involved. By failing to identify any authority specifically, such a response arguably fails to raise and preserve for appeal the question of the application of any particular authority. In view of the ...

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