           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce L. Wishnefsky,                             :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 481 C.D. 2016
                                                 : Submitted: July 29, 2016
Pennsylvania Department of                       :
Corrections,                                     :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                           FILED: September 14, 2016

                 Bruce L. Wishnefsky (Petitioner) petitions, pro se, for review of a
final determination of the Office of Open Records (OOR) that denied his appeal
under the Right-to-Know Law1 on the grounds that the Department of Corrections
(Department) had satisfied its burden of proving that it had no records responsive
to Petitioner’s request. We affirm.
                 On December 11, 2015, Petitioner, an inmate incarcerated at the State
Correctional Institution at Laurel Highlands, submitted to the Department a request
under the Right-to-Know Law for

                 the contract currently in effect between Somerset Hospital and
                 Correct Care Solutions LLC, that deals with medical services
                 provided to PA Department of Corrections inmates under the

1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
             contract between Correct Care Solutions LLC, RFQ
             6100030031, and the PA Department of Corrections, if such
             contract with Somerset Hospital is submitted to the PA
             Department of Corrections.
(Record Item (R. Item) 1, Petitioner’s Appeal to OOR.) The Department denied
this request on the ground that it sought trade secrets or confidential proprietary
information exempt from disclosure under Section 708(b)(11) of the Right-to-
Know Law, 65 P.S. § 67.708(b)(11). (R. Item 1, Petitioner’s Appeal to OOR.)
             Petitioner timely appealed this denial to OOR. (R. Item 1, Petitioner’s
Appeal to OOR.) In the position statement that it filed with the OOR on February
8, 2016, the Department did not contend that the requested record was exempt
from disclosure, but asserted that it had determined after a search of its records that
the contract between Somerset Hospital and Correct Care Solutions, LLC was not
submitted to the Department and that it had no responsive records. (R. Item 6,
Department Position Statement.) With this response, the Department submitted a
declaration made under penalty of perjury by the Contract & Project Manager of
the Department’s Bureau of Health Care Services attesting that if the requested
contract was submitted to the Department, it would be retained in the files within
her custody and that “[a]fter a reasonable search, the Department does not possess
the responsive records within our custody, possession or control.” (Id., Declaration
of Jodie S. White.) On February 22, 2016, OOR denied Petitioner’s appeal on the
ground that the Department had met its burden to prove that “no responsive records
exist in the Department’s possession, custody or control.” (R. Item 7, OOR Final
Determination at 2.) This appeal followed.2



2
  Under the Right-to-Know Law, this Court exercises plenary, de novo review of OOR
determinations involving Commonwealth agencies such as the Department. Bowling v. Office of
Open Records, 75 A.3d 453, 477 (Pa. 2013).

                                            2
            The Right-to-Know Law does not require government agencies to
produce records that do not exist within their custody, possession, or control.
Sturgis v. Department of Corrections, 96 A.3d 445, 446-48 (Pa. Cmwlth. 2014);
Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192-93 (Pa.
Cmwlth. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth.
2010); see also Section 705 of the Right-to-Know Law, 65 P.S. § 67.705 (“an
agency shall not be required to create a record which does not currently exist”).
An agency is required to provide access where a public record “not in the
possession of an agency … is in the possession of a party with whom the agency
has contracted to perform a governmental function on behalf of the agency, and …
directly relates to the governmental function and is not exempt.” Section 506(d)(1)
of the Right-to-Know Law, 65 P.S. § 67.506(d)(1). Petitioner’s request, however,
did not seek records in the possession of third parties that were never in the
Department’s possession. Rather, it requested “the contract currently in effect
between Somerset Hospital and Correct Care Solutions, LLC, that deals with
medical services provided to PA Department of Corrections inmates … if such
contract with Somerset Hospital is submitted to the PA Department of
Corrections.” (R. Item 1, Petitioner’s Appeal to OOR) (emphasis added). The
declaration submitted by the Department satisfied its burden of showing that the
requested contract was not submitted to the Department and that no responsive
record therefore exists. Sturgis, 96 A.3d at 445-46; Hodges, 29 A.3d at 1192.
            Petitioner argues that the Department’s declaration must be rejected
because the Department’s initial response did not deny that the record was in its
possession. We do not agree. The law is clear that an agency’s failure to raise a
contention in its initial response to a Right-to-Know Law request does not bar the
agency from asserting that ground for denial before the OOR. Levy v. Senate of

                                        3
Pennsylvania, 65 A.3d 361, 383 (Pa. 2013); Wishnefsky v. Pennsylvania
Department of Corrections, __ A.3d__, __ n.9 (Pa. Cmwlth., No. 2497 C.D. 2015,
filed July 29, 2016), slip op. at 10 n.9, 2016 WL 4061894 at *5 n.9.
             Department of Public Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015), on
which Petitioner relies, is not to the contrary. In Eiseman, our Supreme Court held
that an agency’s denial that it possessed the requested records was “not well taken”
when it was raised for the first time in the Supreme Court after the agency had not
only failed to assert this contention in its initial denial, but also never raised it
during an extensive hearing before the OOR and during appellate review in this
Court.   125 A.3d at 29.      That is entirely different from the situation here.
Wishnefsky, __ A.3d at __ n.9, slip op. at 10 n.9, 2016 WL 4061894 at *5 n.9
(rejecting identical argument asserted by Petitioner here and holding that
Department’s failure to raise non-possession in its initial denial did not bar it from
showing in Petitioner’s appeal to OOR that it did not possess responsive records).
Failure to raise a ground for denial in proceedings before the OOR, as was the case
in Eiseman, unlike the failure to assert a ground in an initial denial, generally bars
the agency from later raising that ground for denial on appeal. Levy v. Senate of
Pennsylvania, 94 A.3d 436, 441-42 (Pa. Cmwlth. 2014) (although agency failure to
raise an exemption in its denial of a request does not waive its right to argue that
ground, grounds for nondisclosure not raised before the fact-finder in the appeal
from its denial are waived), appeal denied, 106 A.3d 727 (Pa. 2014). In addition,
there was evidence in Eiseman that the agency had the records in its possession or
control notwithstanding its denial, as the agency required that the requested third-
party documents be submitted to it. 125 A.3d at 29. Here, there is no evidence
that the Department’s contract with Correct Care Solutions LLC requires Correct



                                          4
Care Solutions LLC to submit the requested Somerset Hospital contract to the
Department.
              Moreover, Petitioner has not shown that he was prejudiced by the
Department’s assertion of a different ground for denial before the OOR. The
Department’s OOR position statement and its declaration that no responsive
records exist were filed and served on Petitioner on February 8, 2016, two weeks
before OOR issued its decision on February 22, 2016. Petitioner did not seek to
file any response with the OOR to the Department’s new ground for denial and
does not assert that he had arguments or materials concerning the new ground for
denial that he was prevented from filing. This case thus stands in sharp contrast to
Petitioner’s appeal of the Department’s denial of a different Right-to-Know Law
request in Wishnefsky, where this Court vacated the OOR’s decision because the
timing of the Department’s OOR submission deprived Petitioner of the opportunity
to respond to the Department’s new ground for denial of his request. __ A.3d at
__, slip op. at 3-13, 2016 WL 4061894 at *2-*5 (OOR ruled on Petitioner’s appeal
eight days after Department asserted new ground and only two days after Petitioner
received Department’s filing, Petitioner sought to file a response to Department’s
new ground, but it was not received until after OOR decision, and OOR refused to
grant Petitioner’s request for reconsideration).
              For the foregoing reasons, we affirm the final determination of the
OOR.



                                     _________________ ____________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bruce L. Wishnefsky,                 :
                                     :
                 Petitioner          :
                                     :
           v.                        : No. 481 C.D. 2016
                                     :
Pennsylvania Department of           :
Corrections,                         :
                                     :
                 Respondent          :


                                ORDER


           AND NOW, this 14th day of September, 2016, the final determination
of the Office of Open Records is AFFIRMED.




                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
