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Alonzo Hodges v. Pennsylvania Department of Health

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


October 26, 2011

ALONZO HODGES, PETITIONER
v.
PENNSYLVANIA DEPARTMENT OF HEALTH, RESPONDENT

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

ORDER

AND NOW, this 26th day of October, 2011, it is hereby ORDERED that the above-captioned opinion filed August 26, 2011, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alonzo Hodges, : Petitioner : : v. Pennsylvania Department : of Health, : Respondent :

No. 181 C.D. 2011

Submitted: June 3, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY JUDGE LEAVITT

FILED: August 26, 2011

Alonzo Hodges petitions, pro se, for review of a final determination of the Office of Open Records (OOR) denying his appeal under the Right-to-Know Law (RTKL).*fn1 In doing so, the OOR affirmed the Pennsylvania Department of Health's denial of Hodges' right-to-know request for information related to the licensure of the health care provider at a state correctional institution. Because the Department did not possess records responsive to Hodges' request, we will affirm.

Hodges is currently incarcerated at the State Correctional Institution at Fayette (SCI-Fayette). On November 30, 2010, Hodges filed a right-to-know request with the Department of Health (Department) seeking the "license verification and certificate of need" for Prison Health Services, Inc., the health care provider at SCI-Fayette, and a copy of the license application showing the name of the health care provider and health care facility at SCI-Fayette. Certified Record, Item 1, at 1 (C.R. ___). The Department did not issue a timely response to Hodges' request; therefore it was deemed denied.*fn2 See Section 901 of the RTKL, 65 P.S. §67.901.*fn3 Hodges appealed to the OOR on December 17, 2010.

In response to Hodges' appeal, the Department submitted an affidavit

entitled "Agency Affirmation of Nonexistence of Record" (Affidavit) executed by Patty Sheaffer, the Department's Open Records Officer. In her Affidavit, Sheaffer attested that she made a good faith and thorough inquiry to determine if the Department was in possession of the records requested by Hodges. Based on her search, Sheaffer determined that no responsive records existed in the possession, custody or control of the Department.

The Department also submitted a copy of its response to Hodges' right-to-know request, in which it advised Hodges that "certificates of need" are no longer issued. Chapter Seven of the Health Care Facilities Act,*fn4 which required them, expired on December 18, 1996. The Department also informed Hodges that it does not have authority over medical facilities within correctional institutions.*fn5

The Department advised Hodges to address his inquiry to the Department of Corrections.

Upon review, the OOR found that the Department established that it did not possess the records requested by Hodges. In reaching this conclusion, the OOR found that the Affidavit, signed by Sheaffer under penalty of perjury, was dispositive. Hodges now petitions for this Court's review.*fn6

On appeal, Hodges argues that Sheaffer's Affidavit contains contradictory statements, which suggest that the records he requested may exist. Therefore, the Department did not carry its burden of proving that it was unable to fulfill Hodges' right-to-know request.*fn7

The RTKL is "designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010). As such, any information falling within the RTKL's broad definition of "record" must be disclosed if requested.*fn8

However, an agency is not required to create a record if the requested record does not exist. Nor is it required to compile the record in a new or novel format. 65 P.S. §67.705.*fn9 The burden of proving a record does not exist, or is exempt from disclosure, is placed on the agency responding to the right-to-know request. See 65 P.S. §67.708. This Court has stated that an agency may satisfy its burden of proof that it does not possess a requested record with either an unsworn attestation by the person who searched for the record or a sworn affidavit of nonexistence of the record. Moore v. Office of Open Records, 992 A.2d 907, 908-909 (Pa. Cmwlth. 2010).

In this case, Sheaffer, in her capacity as the Department's Open Records Officer, issued an affidavit entitled "Agency Affirmation of Nonexistence of Record" stating in pertinent part that based on the information provided to me, I do hereby affirm that, to the best of my knowledge, information and belief, such records do not exist within our agency.

C.R., Item 3, Agency Affirmation of Nonexistence of Record. We agree with the OOR that, with this Affidavit, the Department met its burden of proof that the requested records do not exist in its possession. Moore, 992 A.2d at 908-909.

Hodges argues that Sheaffer's Affidavit is contradictory based upon her disclaimer that "[i]t is understood that this does not mean that the records do not exist under another spelling, another name or another classification." C.R., Item 3, Agency Affirmation of Nonexistence of Record. Hodges interprets this sentence to mean that the records do exist, just under a different name or classification. Accordingly, he contends that the Department should have been able to locate the records he sought based upon the information he provided, even if they are classified under a different name. We disagree.

Sheaffer's disclaimer that the records may exist somewhere "under another spelling, another name or another classification" does not, as Hodges argues, contradict her primary attestation. The misfiling or misclassification of records is always a possibility. An agency is only required, however, to search for and provide the records which are requested. The Department did so in this case. It was not required to sift through all of its records in order to determine if something under a different spelling or classification might possibly relate to Hodges' request. See Moore, 992 A.2d at 908-909 (noting that an affidavit stating the requested record does not exist satisfies an agency's burden under the RTKL).

For all of the foregoing reasons, we affirm the order of the OOR denying Hodges' appeal.

MARY HANNAH LEAVITT, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alonzo Hodges, : Petitioner : : v. Pennsylvania Department : of Health, : Respondent :

: No. 181 C.D. 2011 :

ORDER

AND NOW, this 26th day of August, 2011, the order of the Office of Open Records, dated January 11, 2011, in the above-captioned matter is hereby AFFIRMED.

MARY HANNAH LEAVITT, Judge


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