The opinion of the court was delivered by: Dan Pellegrini, Judge
Submitted: December 23, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION BY JUDGE PELLEGRINI*fn1
The Pennsylvania Department of Corrections (Department) appeals a Final Determination of the Office of Open Records (OOR) to produce certain records sought by the Disability Rights Network of Pennsylvania (Requestor).
Requestor sought 35 different requests from the Department under the Right-to-Know Law (RTKL),*fn2 of which only two are before us on appeal. In Request No. 12, it requested "records that reflect the number of admissions to psychiatric observations cells (POC) by institution and by month for the past two years of a) inmates who are in RHU and b) inmates who are in SMU." In Request No. 13, it requested "records that reflect for [sic] the number of inmates housed in either RHU or SMU by institution who were (i) administered involuntary medications, (ii) placed on suicide watch, (iii) engaged in self-harm behavior, (iv) restrained for mental health purposes over the past two years." The Department denied those two requests because those records did not exist.
The Requestor appealed to the OOR claiming that the Department's internal procedures manuals required a number of forms to be completed for inmates in the various circumstances described in Request Nos. 12 and 13 and that redacted versions of those forms would satisfy the request. In response, the Department maintained that the requested records did not exist within its possession, custody or control, and submitted Declarations of its Director and Acting Chief of Psychological Services for the Bureau of Health Care Services in support of this assertion.
The OOR ordered that the Department provide, subject to redaction of personal identification information, records responsive to Request Nos. 12 and 13 within 30 days. The Department filed a motion for reconsideration contending that there were several exemptions that would make those forms totally exempt from disclosure under the RTKL exemptions, and alleged that it did not previously have an opportunity to raise these exemptions because the Requestor had not specifically requested the forms.*fn3 The OOR granted the motion but affirmed its prior determination, again ordering that the Department provide the records responsive to Request Nos. 12 and 13, but subject to redaction of personal identification information and information that identified individuals that had undergone medical, psychiatric or psychological treatment. This appeal followed.*fn4
On appeal, the Department contends that the OOR erred in ordering it to produce records pursuant to Request Nos. 12 and 13 because that is numerical data, and there are not specific forms that are completed for inmates in the various circumstances described in those requests. It argues that because the Department does not compile records that reflect the requested numerical data, compliance with the OOR's determination would require the Department to compile or organize its records in a manner in which it does not currently do so. Because an agency is not "required to create a record which does not currently exist or to compile, maintain, format or organize the record," Section 705 of the RTKL, 65 P.S. §67.705, it contends that there are no records for it to produce. As to the materials that the OOR ordered the Department to produce, it contends that because Requestor did not request those forms in its initial request, it was prejudiced because it did not raise the applicable RTKL exemptions in its denial letter.
In response, the Requestor concedes that an agency has no obligation to create a record if one does not exist or to compile information contained in its records in a manner in which it does not already do so. However, an agency is required to make public records available so that requestors can examine and compile data from the records themselves. Even though it did not seek the forms in its initial request, Requestor argues that its initial request is not determinative of whether it is entitled to the requested forms. Finally, the Requestor claims that the Department's failure to raise any exemptions in its initial denial of Requestor's requests constitutes a waiver of such claims. Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010).
When seeking public records, Section 703 of the RTKL, 65 P.S. §67.703, provides that a "written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested." Upon receipt of the written request, the agency is then required to make a good faith effort to determine whether it has "possession, custody or control of the identified record." Section 901 of the RTKL, 65 P.S. §67.901. The agency is not, however, required "to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize." 65 P.S. §67.705. Section 903 of the RTKL, 65 P.S. §67.903, provides that if the agency denies the request, it must do so in writing and contain the following information:
(1) A description of the record requested.
(2) The specific reasons for the denial, including a citation of supporting legal authority.
(3) The typed or printed name, title, business address, business telephone number and signature of the open-records officer on ...