Submitted: April 21, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER
COLINS, Senior Judge
E. COVEY, Judge
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) request (Request). The sole issue
before this Court is whether the OOR properly denied the
Request. Upon review, we affirm.
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,
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
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.
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,
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
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 ...