Submitted May 9, 2014
Appealed from No. AP 2013-2217. State Agency: Office of Open Records.
Larry Sturgis, Pro se.
Maria G. Macus, Assistant Counsel, Mechanicsburg, for respondent.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE BROBSON.
P. KEVIN BROBSON, Judge.
Petitioner Larry Sturgis petitions for review pro se of a final determination of the Office of Open Records (OOR), dated December 20, 2013, denying his request for records, specifically his sentencing order, held by the Department of Corrections (DOC). DOC denied the request on the basis that the requested record did not exist. We now affirm.
Petitioner is an inmate currently incarcerated at the State Correctional Institution at Dallas (SCI-Dallas). Petitioner filed a request with DOC pursuant to the Right to Know Law, requesting that DOC provide him with a copy of his judgment of sentence. DOC's Agency Open Records Officer Andrew Filkosky denied Petitioner's RTKL request on the basis that the record requested does not currently exist and that, pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, DOC is not required to create a record. Petitioner appealed to OOR, challenging the denial. DOC responded by submitting to OOR an attestation of Diane Yale, Records Supervisor at SCI-Dallas, made subject to the penalty of perjury. Ms. Yale swore to the non-existence of Petitioner's judgment of sentence within DOC's possession. Thereafter, OOR determined that, through the submission of Ms. Yale's attestation, DOC met its burden to prove that it does not possess the record sought in Petitioner's request.
On appeal to this Court, Petitioner argues that OOR erred in denying his appeal because DOC failed to meet its burden to prove that it does not currently possess the record sought in the request. Petitioner contends that, pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c), DOC was required " to notify a Third Party Law Enforcement Records Local Agency of the County where [he] was prosecuted, the Philadelphia District Attorney's Office regarding access to his judgment of sentence as to whether or not said records were in said Local Agency's possession at the time of [his RTKL] request," and DOC failed to do so. Petitioner misconstrues the provisions of the RTKL.
Pursuant to the RTKL, a public record must be accessible for inspection and duplication. Section 701(a) of the RTKL, 65 P.S. § 67.701(a). A record in the possession of an agency, such as DOC in this case, is presumed to be a public record, unless the record is exempt under Section 708 of the RTKL, 65 P.S. § 67.708, protected by a privilege, or exempt from disclosure under other law or court order. See Section 305(a) of the RTKL, 65 P.S. § 67.305(a). The agency bears the burden to prove that a record is exempt from public access. See Section 708(a)(1) of the RTKL. Section 705 of the RTKL, 65 P.S. § 67.705, provides: " When responding to a request for access, an agency shall not be 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 the record."
In Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010), this Court considered a similar request by an inmate (Moore) to DOC for a judgment of sentence and DOC's denial of the request. DOC supported its denial with both sworn and unsworn affidavits that DOC did not have in its records Moore's judgment of sentence. We explained that DOC's provision of the affidavit was sufficient to satisfy its responsibilities under the RTKL:
Moore's sole argument on appeal is that [DOC's] statement that a judgment of sentence does not currently exist leads him to believe that such a record must have existed at some time and, therefore, either [DOC] or . . . OOR has a duty to produce the record under the RTKL. However, Moore misinterprets the statutory language, specifically, the use of the word " currently" as used in Section 705 of the RTKL, stating that " an agency shall not be required to create a record which does not currently exist." 65 P.S. § 67.705. Under this provision, whether or not a judgment of sentence existed at some point in time is not the proper standard--the standard is whether such a record is in existence and in possession of the Commonwealth agency at the time of the right-to-know request . [DOC] searched its records and submitted both sworn and unsworn affidavits that it was not in possession of Moore's judgment of sentence--that such a record does not currently exist. These statements are enough to satisfy [DOC's] burden of demonstrating the non-existence of the record in question, and obviously [DOC] cannot grant access to a record that does not exist.[ ] Because under the current RTKL [DOC] cannot be made to create a record which does not exist, . . . OOR properly denied Moore's appeal.
Moore, 992 A.2d at 909 (emphasis added) (footnote omitted). In the case now before the Court and consistent with its actions denying the RTKL request in Moore, DOC provided an unsworn attestation and sworn affidavit that it had examined its records and ...