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Morrison v. Department of Corrections

Commonwealth Court of Pennsylvania

May 23, 2017

Ernest Morrison, Petitioner
v.
Department of Corrections, Respondent

          Submitted: April 21, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          ANNE E. COVEY, Judge

         Ernest Morrison (Morrison), pro se, petitions this Court for review of the Pennsylvania Office of Open Records' (OOR) November 22, 2016 Final Determination denying his appeal from the Pennsylvania Department of Corrections' (DOC) denial of his Right-to-Know Law (RTKL)[1] request (Request). The sole issue before this Court is whether the OOR properly denied the Request.[2] Upon review, we affirm.

         Morrison is serving a life sentence without parole as an inmate at the State Correctional Institution at Dallas (SCI-Dallas). On September 28, 2016, Morrison submitted the Request to DOC's RTKL Office seeking: "A true and correct copy of the 'Written Judgment of Sentence Order' [(Sentencing Order)] which contains (1) the Judge[']s [s]ignature; (2) [t]he [s]tate [he] was [s]entenced under and (3) [t]he [s]tatutory [a]uthorization [] for the following [D]ocket No(s) CP # 171 & 172/1973." Certified Record (C.R.) Item 1 at 4. By October 13, 2016 letter, [3] DOC's RTKL Office denied the Request for the following reason: "The record(s) that you requested do not currently exist in the possession of [DOC]." C.R. Item 1 at 3.

         On October 26, 2016, Morrison appealed from the denial to the OOR, arguing: (1) the denial "is an err[or;]" (2) the Sentencing Order is needed to determine whether he is lawfully committed to DOC's custody; (3) the admission that the Sentencing Order does not exist supports his claim that he is being unlawfully held; (4) the denial was confusing and misleading, since it should have been presented to DOC as proof of his conviction and sentencing; and, (5) "[t]here is an encroachment into [Pennsylvania Rule of Criminal Procedure] 114; [Sections 9753, 9736 and 9764 of the Sentencing Code, ] 42 Pa.C.S. §§ 9753, 9736, & 9764 (inter alia), and a person does not run a foul [sic] of the law unless he/she violates a specific statute[.]" C.R. Item 1 at 2.

         By November 2, 2016 letter, DOC notified OOR of its position:

Diane Yale [(Yale)], Records Supervisor at SCI[-]Dallas, located [Morrison's April 17, 1974 Adult Male Commitment Form, ] the attached 'court commitment form.' However, to the extent the court commitment form is not responsive, [DOC] included an attestation from [] Yale attesting that following a reasonable search[, ] no other responsive records exist [(Affidavit)].[] Since the requested records do not exist within the possession, custody, or control of [DOC], [DOC] responded appropriately.

C.R. Item 3 at 1. Morrison did not challenge the Affidavit. See C.R. Item 4 at 1. On November 22, 2016, the OOR issued the Final Determination denying Morrison's appeal, stating:

Under the RTKL, an affidavit may serve as sufficient evidentiary support for the nonexistence of records. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. C[mwlth.] 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. C[mwlth.] 2010). In the absence of any competent evidence that [DOC] acted in bad faith or that records exist in the possession of [DOC], 'the averments in [the [A]ffidavit] should be accepted as true.' McGowan v. Pa. Dep't of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. C[mwlth.] 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. C[mwlth.] 2013)). Based on the evidence provided, [DOC] has met its burden of proving that no records exist in [DOC's] possession, custody or control.[FN]1 Accordingly, the appeal is denied.
[FN]1. While [DOC] does not possess the requested sentencing orders, 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 [Commc'ns], 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 at 1-2. Morrison appealed to this Court.[4]

         On appeal to this Court, Morrison does not challenge the OOR's Final Determination, but rather "attempts to raise a due process challenge to his continued confinement. According to [Morrison], if the record does not exist, then his confinement is invalid because it is illegal for the [DOC] to hold him without a signed judgment of sentence." Moore, 992 A.2d at 909-10; see Morrison Pet. for Review, see also Morrison Br. at 5-6. In fact, Morrison's brief concludes with the following disclaimer:

IT IS NOT AND WAS NOT THIS PETITIONER'S INTENTION OR AIM TO APPEAL THE FINDINGS OF [DOC'S] [RTKL] OFFICE OR THE [OOR] STATING THAT THE [SENTENCING ORDER] IS NOT IN [THE DOC's] POSSESSION[, ], IT HAS ALWAYS BEEN HIS AIM TO CHALLENGE HIS DETENTION AND CONFINEMENT BEING UNCONSTITUTIONAL WITHOUT THIS LAWFUL ...

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