              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                                 :
                              Petitioner        :
                                                :
                       v.                       :    No. 22 C.D. 2017
                                                :    Submitted: October 13, 2017
Pennsylvania Department of                      :
Corrections,                                    :
                       Respondent               :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: December 15, 2017


      Alton D. Brown (Requester), pro se, petitions for review of the December 22,
2016 Final Determination of the Office of Open Records (OOR) denying his appeal
of the Pennsylvania Department of Corrections’ (Department) refusal to grant his
Right-to-Know Law (RTKL)1 request because he had outstanding fees from the
production of records for his prior RTKL Request 354-16 (Prior Request).
      On October 24, 2016, Requester, an inmate at the State Correctional
Institution at Greene (SCI-Greene), submitted a RTKL request with the Department
for the Department’s Hepatitis C policy and protocol. The Department denied the

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
request, stating that Requester still owed $6.32 for producing records for the Prior
Request.2
       Requester appealed the Department’s denial to the OOR, contending that he
did not owe $6.32 to the Department and that the Department failed to produce
documents proving otherwise. In a declaration made on November 15, 2016,
Requester stated that:


   1. The Pa. D.O.C. never provided me with a letter with the “amended
      invoice” with regards to Item No. 7 in RTKL Request No. 0354-16. I
      first learnt about the discovery of Item No. 7 via it’s [sic] May 24,
       2016 position statement submitted to the Appeals Office at No.
       2016-0832.

   2. I have never been provided notice that any documents have been
       produced, copied, and waiting for my purchase.

   3. I have no problems paying for the documents.


(Certified Record (C.R.) at Item 1, Ex. C.) Also, included in Requester’s appeal
materials were the April 14, 2016 letter in response to the Prior Request and the
above-referenced May 24, 2016 position statement and invoice for the Prior Request.
The invoice indicated that the $6.32 charge for this request resulted from $4.75 for
the copying of 19 pages of granted records at 25 cents per page and $1.57 in postage.




       2
          The Department received the Prior Request on March 21, 2016, and it issued a letter,
dated April 14, 2016, purporting to grant access to two of the seven items requested. Requester
appealed to the OOR. On May 24, 2016, in response to Requester’s appeal, the Department
submitted a position statement supporting its denial and an invoice reflecting the charges related
to the granted records.


                                                2
       The Department responded with a declaration made under penalty of perjury
on December 12, 2016, by Department Open Records Officer Andrew Filkosky
(Filkosky Declaration), who stated that:


       4.     [Requester], DL4686, was granted records on a RTKL request at
              docket RTKL 0354-16.

       5.     The records for RTKL 0354-16 were copied and prepared for
              [Requester].

       6.     As of the date this declaration is being signed, [Requester] has
              not paid for the records for RTKL 0354-16.

       7.     The outstanding balance is $6.32.

(C.R. Item No. 5.)
       The OOR issued a Final Determination denying Requester’s appeal,
concluding that the Department was justified in not processing Requester’s RTKL
request because he had not paid the fees associated with the reproduction of
documents for the Prior Request. (OOR’s Final Determination at 1-2.) The OOR
stated that an agency may validly refuse to process a RTKL request if the requester
has a balance due from a prior RTKL request. (Id. at 1.) The OOR reasoned that
the Filkosky Declaration met the Department’s burden of proving that Requester had
an outstanding balance. (Id. at 2.) Requester filed this petition for review.3
       Requester does not challenge the Department’s ability to withhold access to
records where the requester owes money for a prior request and, in fact, Requester
concedes that he has no problem paying for the documents. Instead, Requester

       3
         This Court’s standard of review in appeals from determinations by agencies under the
RTKL is de novo and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d
453, 477 (Pa. 2013).


                                              3
challenges the sufficiency of the evidence offered to prove that he actually does owe
the $6.32 as the Department claims. Requester contends that the Department never
produced any documents responding to the Prior Request, or at least never notified
him that it had done so and that the records were ready for him to pick up. In support,
Requester refers to the Department’s April 14, 2016 letter in response to the Prior
Request, which provided, in relevant part, Requester with two options for accessing
the granted materials:


             If you have the means and wish to access the granted records at
      the Department’s Central Office you may make [arrangements] to
      inspect the records at the RTKL Office. You may also designate a
      representative to make arrangements to inspect the records on your
      behalf. . . . You or your representative will be responsible for the
      duplication costs of any portions of the records that you wish to retain
      after inspecting the records. . . .
             Finally, if you do not have the means or desire to inspect the
      records at the RTKL Office, the documents can also be mailed to you
      at a cost of $3.11 (9 pages @ $0.25 per page, plus $0.86 for postage).
      If you would like us to send copies of the records, we require that you
      prepay for the documents before they are mailed. . . . If your payment
      is not received within thirty (30) days of the date of this letter your
      request will be deemed to be withdrawn and a new request would
      need to be filed for future access to the requested records.

(C.R. at Item 1, Ex. A (emphasis added).) Requester asserts that this letter’s grant
of access, without more, did not obligate him to pay for any documents because the
letter gave him options on how to acquire the records: one of which required
prepayment and one of which did not. He argues that, until he decided on which
option he would use, no fee could be charged. Requester further contends that,
because he did not prepay for the documents within 30 days of receiving the letter,
his request, per the terms of the letter, should have been deemed withdrawn without


                                          4
incurring any costs because the letter did not indicate that he must prepay, only that
he may prepay to have the documents mailed to him.
       Further, Requester asserts the grant of Item 7, which resulted in additional
costs being charged, was invalid because it came more than 30 days after the
Department’s April 14, 2016 letter that stated that if payment is not received in 30
days that the request would be withdrawn and would need to be resubmitted.
(Requester’s Br. at 3.) Notably, that letter stated that the charges owed would be
$3.11 because only Items 2 and 6 of the Prior Request were granted, and Item 7 was
denied because the Department claimed “[t]he record(s) that [were] requested do not
currently exist.” (C.R. at Item 1, Ex. A.) It appears that, while Requester was
appealing the denial of the other items, the Department, in its May 24, 2016 position
statement, granted access to Item 7, which consisted of an additional ten pages for
which the Department sought payment.4
       The Department counters that it has produced sufficient evidence to support
its contention that Requester owes $6.32. The evidence that the Department seeks
to rely upon are: the Filkosky Declaration; the April 14, 2016 letter and the May 24,
2016 position statement, which indicate what records were granted in the Prior
Request; and the May 24, 2016 invoice, which indicates the number of pages granted
and the shipping cost for Requester’s Prior Request.
       Section 901 of the RTKL addressing, generally, record requests and an
agency’s obligations in responding to such requests, states, in pertinent part, that
“[a]ll applicable fees shall be paid in order to receive access to the record requested.”
65 P.S. § 67.901. An agency may deny a request for records when a requester owes

       4
         Item 7 was included on the invoice for May 24, 2016, causing the total invoice to show a
balance of $6.32.



                                               5
outstanding fees to the agency for a prior request. See Dep’t of Transp. v. Drack, 42
A.3d 355, 362-63 (Pa. Cmwlth. 2012).5 The agency asserting such basis for denying
access to the records has the burden to prove the requester’s indebtedness to the
agency. See id. at 364 (“[T]he RTKL places an evidentiary burden upon agencies
seeking to deny access to records . . . .”). We have determined that an unsworn
attestation or a sworn affidavit is sufficient to meet this burden of proof, so long as
the declaration is not conclusory or generic. W. Chester Univ. v. Schackner, 124
A.3d 382, 393 (Pa. Cmwlth. 2015); Office of Governor v. Scolforno, 65 A.3d 1095,
1103-04 (Pa. Cmwlth. 2013).
       Recently, in two cases involving other RTKL requests from Brown that were
denied by the Department for, among other reasons, failure to pay the same $6.32 at
issue here, this Court found the evidence the Department offered in support of the
denial of those requests to be insufficient. In both of those cases, the Department’s
sole evidentiary offering was a declaration identical to the one made by Filkosky in
this case. Brown v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 1868 C.D. 2016, filed Oct.
31, 2017), slip op. at 4, 7-8 (Brown II); Brown v. Dep’t of Corr. (Pa. Cmwlth., No.
1959 C.D. 2016, filed Sept. 1, 2017), slip op. at 5, 7 (Brown I).6 In Brown I, we
determined that the Filkosky Declaration was insufficient because it failed to

       5
           In Drack, we concluded that:

       In a situation where a requester owes money for an agency’s fulfillment of an earlier
       request, and where the amount owed for a current request is not expected to exceed
       $100, Section 901 permits an agency to process the request but to withhold access
       to the request until all applicable fees, including fees for earlier requests, are paid.

Drack, 42 A.3d at 363 (emphasis in original).
       6
         Pursuant to Section 414(a) of this Court’s Internal Operating Procedure, 210 Pa. Code
§ 69.414(a), an unreported opinion filed after January 15, 2008, may be cited for its persuasive
value and not as binding precedent.



                                                  6
“identify the documents that were reproduced as well as the number of pages
included in the $6.32 charge” for the Prior Request. Brown I, slip op. at 7. In Brown
II, we determined that the Filkosky Declaration was insufficient because it failed to
identify: the records “copied and prepared”; the date on which the records were
copied and prepared; whether the Department actually made the records available to
Requester;7 and whether the Department notified Requester that he owed money for
fulfillment of the Prior Request. Brown II, slip op. at 4, 7-8.
       The Department recognizes the deficiencies identified in Brown I. It asserts,
however, that this matter is different because it also provided the April 14, 2016
letter, the May 24, 2016 position statement by the Department, and the May 24, 2016
invoice, which, together, cures those deficiencies.
       The April 14, 2016 letter may identify the records to which the Department
was granting access as required in Brown I, but it does not cure the deficiencies
pointed out in Brown II. This letter does not identify when the records were copied
and prepared and whether they were actually made available to Requester. Rather,
the April 14, 2016 letter gave Requester two options in how to access the granted
records. This letter did not state that Requester was required to pay for the granted
records because it contained at least one option that did not require any payment. In
maintaining that Requester owes $6.32, the Department essentially invoiced

       7
           This is required pursuant to Section 701(a) of the RTKL, which states:

       Unless otherwise provided by law, a public record, legislative record or financial
       record shall be accessible for inspection and duplication in accordance with this act.
       A record being provided to a requester shall be provided in the medium requested
       if it exists in that medium; otherwise, it shall be provided in the medium in which
       it exists. Public records, legislative records or financial records shall be available
       for access during the regular business hours of an agency.

65 P.S. § 67.701(a).


                                                 7
Requester for copying and mailing records related to the Prior Request, even though
it had given Requester the option of having a representative view the documents at
the Department’s RTKL office for no charge, so long as the records were not
duplicated. Further, the letter stated “[i]f [Requester’s] payment is not received
within thirty (30) days of the date of this letter [Requester’s] request will be
deemed to be withdrawn and a new request would need to be filed for future
access to the requested records.”8 (C.R. at Item 1, Ex. A (emphasis added).) Even
though the Department did not receive payment in 30 days from Requester for the
items granted, thereby rendering the request for those items withdrawn, the
Department asserts he still owes it money based on the deemed-withdrawn request.9
       The May 24, 2016 position statement, like the April 14, 2016 letter, may have
identified the records to which the Department was granting access, but it, too, does
not identify when the records were copied and prepared and whether they were
actually made available to Requester. Finally, while the May 24, 2016 invoice offers
proof that the Department notified Requester, during his appeal related to the Prior

       8
          Such language suggests that it is at least questionable as to whether Requester actually
received access to the requested records.
        9
          The Department requests this Court to take judicial notice of the OOR’s June 12, 2016
Advisory Opinion, attached to its brief and available on the OOR’s website
www.openrecords.pa.gov/RTKL/AdvisoryOpinions.cfm. In that Advisory Opinion, the OOR
opined, based on Sections 901 and 905 of the RTKL, 65 P.S. §§ 67.901 (requiring that a requester
must pay “[a]ll applicable fees”), 67.905 (providing that if an agency states that the “requested
records are available for delivery at the office of an agency and the requester” does not retrieve
them within 60 days of the response, the agency can dispose of the copies and retain any fees paid
to date”), and Drack, 42 A.3d at 363, “that agencies may deny access to records sought in RTKL
requests based on a requestor’s outstanding fees stemming from a prior RTKL request” “even
where the requester never retrieved the records, because the agency, in responding to the prior
request, had been required to produce physical copies of the requested records.” (OOR
Advisory Op. at 2; Department’s Br. Ex. B (emphasis added).) However, even if the Court were
to take judicial notice of the OOR’s Advisory Opinion, this record does not identify when the
records at issue in the Prior Request were copied and prepared and whether they were actually
made available to Requester.


                                                8
Request, that he owed money for fulfilling the Prior Request, this invoice does not
specify: the records copied and prepared; the date on which the records were copied
and prepared; and whether the Department actually made the records available to
Requester.
      We recognize that the additional items in this record cited by the Department
may have cured some of the deficiencies identified in Brown I and Brown II.
However, the Department has not identified when the records were copied and
prepared and whether they were actually made available to Requester as required by
Brown II. Accordingly, the Final Determination of the OOR is vacated, and the
matter is remanded to the OOR for the Department to introduce a more detailed
declaration within 30 days, to which Requester may respond within 30 days, and the
OOR shall issue a new determination. If the Department does not issue a new
declaration within this time period, the OOR shall direct the Department to release




                                         9
the requested records subject to the payment of copying and postage fees by
Requester.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge



Judge Cosgrove did not participate in the decision of this case.




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                           :
                          Petitioner      :
                                          :
                   v.                     :   No. 22 C.D. 2017
                                          :
Pennsylvania Department of                :
Corrections,                              :
                       Respondent         :


                                       ORDER


      NOW, December 15, 2017, the December 22, 2016 Final Determination of
the Office of Open Records (OOR), entered in the above-captioned matter, is
VACATED, and the matter is REMANDED to the OOR with instructions for the
Department of Corrections (Department) to submit a more detailed declaration
regarding the unpaid fees in Alton D. Brown’s (Requester) Right-to-Know Law
Request RTKL 0354-16 within 30 days of this Order. Requester may file a response
within 30 days of the filing of the Department’s declaration, and the OOR shall then
issue a new determination. If the Department does not issue a declaration within this
time period, the OOR shall direct the Department to release the requested records
subject to the payment of copying and postage fees by Requester.
      Jurisdiction relinquished.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
