Submitted: February 17, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
MICHAEL H. WOJCIK, Judge
Foster (Requester) petitions pro se for review of
the Final Determination of the Office of Open Records (OOR)
denying his appeal of the Department of Corrections'
(Department) denial of his request (Request) for a copy of
his "Written Judgment of Sentence Order" pursuant
to the Right to Know Law (RTKL). We affirm.
is an inmate at the State Correctional Institution at Dallas
(SCI-Dallas). Certified Record (C.R.) Item 1. On August 22,
2016, Requester submitted his Request seeking "a true
and correct copy of the "Written Judgment of Sentence
Order" containing "(1) the Signature of the Judge;
(2) the Statute [he] was sentenced under; and (3) the
Statutory Authorization related to Docket No.
CP-51-CR-0014680-2007." Id. On September 7,
2016, the Department's Open Records Officer (ORO) denied
the request, stating that "[t]he record(s) that you
requested do not currently exist in the possession of the
October 4, 2016, Requester filed an appeal with OOR alleging
that the document that the ORO sent was "misleading and
self-serving" because he "was simply requesting a
copy of the proper legal document that is required by law,
that should have been in the possession of the [Department]
to make [his] commitment lawful, " and that
"without such document [he is] being unlawfully held and
detained." C.R. Item 1. In response, the Department
asserted that Diane Yale, the Records Supervisor at
SCI-Dallas, located a sentencing order in Requester's
file on Form AOPC 2066 that was signed by the sentencing
judge, and that "[t]o the extent the attached [order] is
the requested record then this matter is moot." C.R.
Item 3. The Department also provided the attestation of the
Records Supervisor that the Department does not possess any
other records that are responsive to his Request.
October 19, 2016, OOR issued the Final Determination denying
Requester's appeal stating, in relevant part:
Under the RTKL, an affidavit may serve as sufficient
evidentiary support. See Sherry v. Radnor Twp. Sch.
Dist., 20 A.3d 515, 520-21 ([Pa. Cmwlth.] 2011);
Moore v. Office of Open Records, 992 A.2d 907, 909
([Pa. Cmwlth.] 2010). In the absence of any evidence that the
Department has acted in bad faith or that the records do, in
fact, exist, "the averments in [the affidavit] should be
accepted as true." McGowan v. Pa. Dep't of
Envtl. Prot., 103 A.3d 374, 382-83 ([Pa. Cmwlth.] 2014)
(citing Office of the Governor v. Scolforo, 65 A.3d
1095, 1103 ([Pa. Cmwlth.] 2013)). Based on the evidence
provided, the Department has met its burden of proof that the
records requested do not exist in the Department's
possession, custody or control.1 Accordingly, the appeal is
* * *
1While the Department does not possess the
requested sentencing order, there exists a common law right
of access to judicial records. Commonwealth v.
Upshur, 924 A.2d 642 (Pa. 2007). The common law right of
access to public judicial records and documents arose from
the presumption that judicial proceedings will be open to the
public. As the Supreme Court has stated, "[i]t is clear
that the courts of this country recognize a general right to
inspect and copy public records and documents, including
judicial records and documents." Nixon v. Warner
Communications, Inc., 435 U.S. 589, 591 (1978)
(footnotes omitted). The Pennsylvania Supreme Court has
viewed the common law right of access as compelled by many of
the considerations that underlie the presumption of public
trials. See Commonwealth v. Fenstermaker, 530 A.2d
414, 417-18 (Pa. 1987). The records sought, if they exist,
may be requested from the issuing court.
C.R. Item 4. Requester filed a timely petition for review.
appeal,  Requester does not challenge OOR's
Final Determination upholding the Department's response
to his Request. Rather, Requester argues that: (1) the
Department erred as a matter of statutory law when it
accepted and committed him without a proper and legal
sentencing order; (2) he is entitled to relief where the
sentencing court failed to provide a proper sentencing order
to the Department as required by law; and (3) the sentencing
court erred as a matter of law in failing to state what
statute authorized it to impose the sentence that he is now
serving. Petitioner's Brief at 4, 8-30. Based
on the foregoing, Requester asks this Court to "find
that [his] Constitutional and Civil Rights are being violated
by his continued unlawful and illegal detention and
confinement in the custody of the [Department] without the
proper and legal document that was/is required to make such a
detention legal and GRANT [him] a REMAND of this matter to
the [sentencing court] to file a "Writ of Habeas Corpus
Ad Subjiciendum" in the true interest of justice."
Id. at 31 (emphasis in original).
Court has explained:
The RTKL is a statute that grants citizens, in certain
specified circumstances, the right to obtain public records
from government agencies, "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) (en banc), [aff'd, 75 A.3d 453
(Pa. 2013)]. If an individual requests a public record and a
government agency denied the request, the individual can
appeal the decision to the trial court ...