Submitted: July 28, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge.
KEVIN BROBSON, JUDGE.
Saunders (Petitioner), acting pro se, petitions for
review of a Final Determination of the Office of Open Records
(OOR), issued January 20, 2017, which found that no further
action was required of the Pennsylvania Department of
Corrections (Department) in regard to Petitioner's
request under Pennsylvania's Right-to-Know
For the reasons set forth below, we affirm.
is an inmate incarcerated at the State Correctional
Institution at Rockview (SCI-Rockview). Petitioner filed a
Right-to-Know Law request with the Department's Open
Records Officer, seeking a copy of the "sentencing order
from the Common Pleas Court of Philadelphia County, "
pursuant to which he is incarcerated. (Certified Record
(C.R.), Item No. 1, App. "A".) Petitioner
identified three docket numbers for "term 12/74"
and wrote that the "sentencing order should contain the
statute that I was sentenced under." (Id.) The
Department's Open Records Officer denied Petitioner's
request on the grounds that "[t]he record(s) that
[Petitioner] requested do not currently exist in the
possession of the Department." (C.R., Item No. 1, App.
appealed to the OOR. In response, the Department submitted an
attestation signed by Andrew Filkosky, one of the
Department's Open Records Officers, stating, in pertinent
part: "As part of my job duties I reviewed the request
and researched it to determine whether any of the requested
records exist within the Department's possession. . . .
After a reasonable search, no responsive records currently
exist within the Department's custody, possession[, ] or
control." (C.R., Item No. 3, Attachment.) The OOR
subsequently issued a Final Determination on January 20,
2017, denying Petitioner's appeal, finding that the
Department "has met its burden of proving that no
responsive records exist in the Department's possession,
custody, or control." (C.R., Item No. 4 at 2.)
Petitioner thereafter petitioned this Court for review.
appeal,  Petitioner argues that Section 9764(a)(8)
of the Sentencing Code, 42 Pa. C.S. § 9764(a)(8),
relating to information required upon commitment and
subsequent disposition, creates a presumption that the
requested sentencing order(s) exist in the possession,
custody, or control of the Department, and, therefore, the
OOR's final determination should be reversed. We
Section 9764(a)(8) of the Sentencing Code provides, in part:
(a) General rule.--Upon commitment of an inmate to the
custody of the Department of Corrections, the sheriff or
transporting official shall provide to the
institution's records officer or duty officer . . .
the following information: . . . .
(8) A copy of the sentencing order and any detainers
filed against the inmate which the county has notice.
(Emphasis added.) The Department may refuse to accept custody
of an inmate for whom the sheriff or transporting official
does not provide the information required by Section 9764(a)
of the Sentencing Code if certain circumstances are met.
See Section 9764(c.1)(1) of the Sentencing Code, 42
Pa. C.S. § 9764(c.1)(1).
maintains that, because Section 9764(a)(8) of the Sentencing
Code requires the sheriff or transporting official to provide
a copy of the inmate's sentencing order to the state
correctional institution upon commitment, the Department must
have received and had in its possession, custody, or control
Petitioner's sentencing order at the time he was
committed, and, therefore, Petitioner is entitled to a
presumption that the sentencing order exists as a record of
the Department. Petitioner further contends that the OOR
erred in accepting the affidavit as proof of the nonexistence
of the sentencing order. In other words, Petitioner contends
that he was entitled to a presumption that the sentencing
order is within the Department's possession, custody, or
control, and an affidavit to the contrary is insufficient to
rebut the presumption.
705 of the Right-to-Know Law, 65 P.S. § 67.705, provides
that, "[w]hen 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), we examined the
Department's obligations under the Right-to-Know Law when
the Department contends that an inmate's sentencing order
"does not currently exist" in the
Department's possession, custody, or control.
Moore, 992 A.2d at 909 (emphasis in original). In
Moore, we opined:
Moore's sole argument on appeal is that the
Department'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
the Department or the OOR has a duty to produce the record
under the [Right-to-Know Law]. However, Moore misinterprets
the statutory language, specifically, the use of the word
"currently" as used in Section 705 of the
[Right-to-Know Law], 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.
The Department 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 the
Department's burden of demonstrating the non-existence of