               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel Ocasio,                             :
                           Petitioner       :
                                            :
             v.                             :
                                            :
Pennsylvania Department                     :
of Corrections,                             :   No. 419 C.D. 2017
                       Respondent           :   Submitted: October 6, 2017

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                     FILED: December 7, 2017

             Gabriel Ocasio (Ocasio), pro se, petitions this Court for review of the
Pennsylvania Office of Open Records’ (OOR) December 27, 2016 Final Determination
denying his appeal from the Pennsylvania Department of Corrections’ (DOC) denial
of his Right-to-Know Law (RTKL)1 request (Request). The sole issue before this Court
is whether DOC met its burden of proving it did not possess the responsive record.
Upon review, we affirm.
             Ocasio is an inmate at the State Correctional Institution at Rockview (SCI-
Rockview). On October 28, 2016, Ocasio submitted his Request to DOC’s RTKL
Office seeking: “‘Judgment of Sentencing Order [(Sentencing Order)]’ and ‘DC-300B’
[(Court Commitment)] Form.” Certified Record (C.R.) Tab 1, Item 4. By November
18, 2016 letter,2 DOC’s RTKL Office produced Ocasio’s DC-300B Form, but denied
his Request relative to the Sentencing Order, declaring:


      1
       Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
      2
       On October 31, 2016, DOC’s RTKL Office permissibly extended its final response date to
December 2, 2016. See C.R. Tab 1, Item 3.
             The record[] that you requested do[es] not currently exist in
             the possession of [DOC]. When responding to a request for
             access, an agency is not required to create a record which
             does not currently exist or to compile, format or organize a
             public record in a manner in which it does not currently
             compile, format or organize the public record. [Section 705
             of the RTKL,] 65 P.S. § 67.705; [s]ee Moore v. Office of
             Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010)
             (‘[DOC] cannot grant access to a record that does not exist.
             Because under the current RTKL [DOC] cannot be made to
             create a record that does not exist, the OOR properly denied
             [the] . . . appeal.’); [s]ee also Bargaron v. Dep[’t] of Labor
             [&] Indus[.], 720 A.2d 500 (Pa. Cmwlth. 1998).

C.R. Tab 1, Item 3.
             On November 30, 2016, Ocasio appealed to the OOR, asserting that the
Sentencing Order is a public record:

             The requested record(s) contained accessible information
             regarding [Ocasio’s] [c]riminal [c]ourt case and Sentencing
             Order, which do not fall[] under any of the [RTKL]
             exemption[s]. Inasmuch as the request[ed] information only
             reflects [Ocasio’s] name, crime committed, and Sentencing
             Order [sic]. No address of [Ocasio] and/or anyone else for
             that matter[], which meets the [RTKL] requirements for
             public records [sic]. Moreover, the burden of proof falls
             upon the agency denying the record(s), pursuant to [Section
             708(a) of the RTKL,] 65 P.S. [§] 67.708(a), not [Ocasio].

C.R. Tab 1, Item 1. Ocasio specifically challenged DOC’s denial on the basis that,
since he could not have been admitted to DOC’s facility unless the sheriff or
transporting officer provided the Sentencing Order to DOC’s records officer, “[DOC]
should have [it] in [its] possession . . . .” C.R. Tab 1, Item 1.
             The OOR invited the parties to supplement the record. See C.R. Tab 2.
By December 6, 2016 letter, DOC again declared that “the [Sentencing Order] does not
exist within the possession, custody or control of [DOC],” and enclosed an Agency
Attestation of Nonexistence of Record (Attestation) issued by SCI-Rockview’s records
supervisor Kathleen Witmer (Witmer). C.R. Tab 3. Therein, Witmer stated under

                                             2
penalty of perjury that, “[b]eyond the DC-300B, I have determined that no responsive
records exist within [DOC’s] custody, possession or control.” C.R. Tab 3. Ocasio did
not challenge the Attestation. See Ocasio Br. at VIII; see also Ocasio Br. at 3. On
December 27, 2016, the OOR issued its Final Determination denying Ocasio’s appeal,
stating:

                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 . . . , 992 A.2d [at] 909 . . . . 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. Accordingly, the appeal is denied.

C.R. Tab 4 at 1-2 . Ocasio appealed to this Court.3
                Ocasio argues that DOC must possess his Sentencing Order since the
Sentencing Code4 and DOC’s regulations and policies relating to information exchange
and inmate reception prohibit his incarceration without it.                      Ocasio alternatively
contends that “the OOR failed to recognize[] . . . [Section 506(d)(1) of the RTKL,] 65
[P.S. §] 67.506(d)(1) [(regarding records in the possession of a third party contracted


        3
          “[A] reviewing court, in its appellate jurisdiction, independently reviews the OOR’s orders
and may substitute its own findings of fact for that of the agency.” Moore, 992 A.2d at 909 n.5
(quoting Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), aff’d, 75 A.3d
453 (Pa. 2013). “[A] court reviewing an appeal from an OOR hearing officer is entitled to the broadest
scope of review.” Moore, 992 A.2d at 909 n.5 (quoting Bowling, 990 A.2d at 820).
        4
          42 Pa.C.S. §§ 9701-9799.9. Ocasio specifically refers in his brief to Section 9764(a)(8) of
the Sentencing Code which states: Upon commitment of an inmate to the custody of DOC, the sheriff
or transporting official shall provide to the institution’s records officer or duty officer “[a] copy of the
sentencing order . . . filed against the inmate which the county has notice.” 42 Pa.C.S. § 9764(a)(8).


                                                     3
to perform a governmental function),5] which relates to [the] Request.” Ocasio Br. at
3; see also Ocasio Br. at 6-7. Ocasio concludes that “[DOC] did not necessarily have
to have the [Sentencing Order] in [its] possession, . . . [it] could have retrieve[d] it from
the courts with whom [it is] contracted[.]” Ocasio Br. at 7. We disagree.
                Initially, to the extent that Ocasio is arguing that his confinement is invalid
because it is illegal for DOC to hold him without a Sentencing Order,6 in Moore, this
Court held that “an appeal from an OOR order denying [an inmate’s] request for
access to a public record is not the proper forum to challenge the constitutionality
of his continued incarceration.” Id. at 910 (emphasis added); see also Scott v. Pa.
Dep’t of Corr. (Pa. Cmwlth. No. 133 C.D. 2016, filed January 27, 2017) (“It is not the
Court’s role to help a litigant find a document or to review the legality of a criminal
prosecution or conviction.”), slip op. at 3; Whitaker v. Pa. Dep’t of Corr. (Pa. Cmwlth.
No. 1781 C.D. 2012, filed March 8, 2013) (“[T]he RTKL is not a vehicle through which
an individual can collaterally attack the legality of his criminal confinement. The
RTKL does not contain any statutory provisions or procedures providing an individual
with a right or avenue to declare his underlying judgment of sentence a legal nullity.”),




       5
           Section 506(d)(1) of the RTKL states:

                A public record that is not in the possession of an agency but is in the
                possession of a party with whom the agency has contracted to perform
                a governmental function on behalf of the agency, and which directly
                relates to the governmental function and is not exempt under [the
                RTKL], shall be considered a public record of the agency for purposes
                of [the RTKL].
65 P.S. § 67.506(d)(1).
        6
          Although Ocasio did not directly raise this argument in his brief, he asserted in his Petition
for Review that DOC failed to discharge him from custody after concluding that it did not possess his
Sentencing Order. See Petition for Review at 2. Moreover, DOC responded to that issue in its brief.
See DOC Br. at 10-11.


                                                   4
slip op. at 3.7 Accordingly, if Ocasio is seeking to use the RTKL to challenge his
incarceration, this Court must affirm the OOR’s ruling. See Morrison v. Dep’t of Corr.,
162 A.3d 613 (Pa. Cmwlth. 2017).
              If, however, Ocasio’s challenge is that the Request was improperly denied
on the basis that DOC must have or can obtain the Sentencing Order, this Court has
ruled:

              Under Section 1102 of the RTKL, a requester and the
              assigned open records officer are permitted ‘to submit
              documents in support of their positions’ and ‘[t]he appeals
              officer may admit into evidence testimony, evidence and
              documents that the appeals officer believes to be reasonably
              probative and relevant to an issue in dispute.’ 65 P.S. §§
              67.1102(a)(1) and (2). The attestation . . . of non-existence
              [is] certainly probative and relevant to the issue of the
              existence of [a] judgment of sentence.
Moore, 992 A.2d at 909 n.4. Moreover,
              the standard is whether such a record is in existence and in
              possession of the Commonwealth agency at the time of the
              [RTKL] request. [Here, DOC] searched its records and
              submitted [the Attestation] that it was not in possession of
              [Ocasio’s] [Sentencing Order] – that such a record does not
              currently exist. Th[at] statement[] [is] enough to satisfy
              [DOC’s] burden of demonstrating the non-existence of the
              record in question, and obviously [DOC] cannot grant access
              to a record that does not exist. Because under the current
              RTKL [DOC] cannot be made to create a record which does
              not exist, the OOR properly denied [Ocasio’s] appeal.
Id. at 909 (footnote omitted).




         7
          We acknowledge that this Court’s unreported memorandum opinions may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Because Scott and Whitaker
involved incarceration challenges under the RTKL, the Court’s reasoning therein is persuasive to the
extent Ocasio raises the same claim in the current action.


                                                 5
                Finally, in Philadelphia District Attorney’s Office v. Stover (Pa. Cmwlth.
No. 1952 C.D. 2016, filed September 12, 2017),8 this Court held that since sentencing
orders and DC-300B Court Commitment forms are records of the judiciary, they are
exempt from disclosure under the RTKL by a non-judicial agency.9 In reaching its
decision, the Stover Court declared:

                ‘In discerning whether records qualify as records ‘of’ a
                particular agency, we consider the subject-matter of the
                records. The location of the record or an agency’s possession
                does not guarantee that a record is accessible to the public;
                rather, the character of the record controls.’ Grine [v. Cnty.
                of Centre], 138 A.3d [88,] 94-95 (citations omitted).




        8
         Because Stover involved the exact documents Ocasio requested in this case, and DOC
produced the DC-300B Court Commitment form to Ocasio, the Stover Court’s reasoning is applicable
and persuasive herein. Moreover, the OOR recently relied upon Stover to deny another inmate’s
RTKL request for his sentencing order and DC-300B Court Commitment form. See Tyler v. Pa.
Dep’t of Corr. (OOR Docket No. AP-2017-1805, filed October 24, 2017). Lastly, on October 3,
2017, the Philadelphia District Attorney’s Office filed an application to report Stover, which is
pending.
       9
         The Stover Court reasoned:

                Pursuant to the RTKL, a ‘judicial agency’ is defined as ‘[a] court of the
                Commonwealth or any other entity or office of the unified judicial
                system.’ Section 102 of the RTKL, 65 P.S. § 67.102. ‘[T]he RTKL
                offers limited access restricted by its terms to a defined type of records
                of judicial agencies. Thus, unlike records of Commonwealth or local
                agencies, where all records in their possession are presumed public,
                only ‘financial records’ of judicial agencies are accessible through the
                RTKL.’ Faulk [v. Phila. Clerk of Courts], 116 A.3d [1183,] 1187 (Pa.
                Cmwlth. 2015). To be sure, [S]ection 304 of the RTKL, 65 P.S. §
                67.304, provides that the records of a judicial agency are disclosable
                only to the extent that they are ‘financial records.’ Court of Common
                Pleas of Lackawanna C[nty.] v. Office of Open Records, 2 A.3d 810,
                813 (Pa. Cmwlth. 2010).
Id. slip op. at 6-7.


                                                    6
Slip op. at 6. Accordingly, even if DOC possessed Ocasio’s Sentencing Order, or could
obtain it from Ocasio’s sentencing court, DOC would be prohibited from producing it
pursuant to Ocasio’s Request.
            For the above reasons, the OOR’s Final Determination is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gabriel Ocasio,                        :
                        Petitioner     :
                                       :
            v.                         :
                                       :
Pennsylvania Department                :
of Corrections,                        :   No. 419 C.D. 2017
                       Respondent      :


                                     ORDER

            AND NOW, this 7th day of December, 2017, the Pennsylvania Office of
Open Records’ December 27, 2016 Final Determination is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
