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Saunders v. Department of Corrections

Commonwealth Court of Pennsylvania

October 11, 2017

Thaddeus Saunders, Petitioner
v.
Department of Corrections, Respondent

          Submitted: July 28, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          P. KEVIN BROBSON, JUDGE.

         Thaddeus 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 Law.[1] For the reasons set forth below, we affirm.

         Petitioner 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. "B".)

         Petitioner 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.

         On appeal, [2] 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 disagree.

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).

         Petitioner 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.

         Section 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. ยง 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 ...

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