                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jared Moore,                                   :
                       Appellant               :
                                               :    No. 447 C.D. 2018
               v.                              :
                                               :    Submitted: October 5, 2018
Allegheny County District Attorney’s           :
Office                                         :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                        FILED: December 3, 2018

               Jared Moore (Requester) appeals, pro se, from the December 5, 2017
order of the Court of Common Pleas of Allegheny County (trial court), which
dismissed his statutory appeal from the decision of the Open Records Appeal Officer
of the Allegheny County District Attorney’s Office (DA) that denied his request for
records under the Right-to-Know Law (RTKL).1 For the reasons that follow, we
affirm.


                                          Background
               On May 15, 2017, Requester made a written RTKL request for records
to the DA seeking nine categories of documents. (Supplemental Reproduced Record




      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
(Suppl. R.R.) at 18a-20a.)2 The documents sought in the request relate to a particular
witness (Witness) who testified in Requester’s criminal trial for homicide. (Suppl.
R.R. at 18a-20a, 25a-26a.) Specifically, Requester requested, inter alia, any and all
agreements, promises, offers, inducement or other things of value provided to
Witness in connection with his testimony; any statements Witness made that were
inconsistent with his testimony at trial or police interviews; any plea bargains,
immunity agreements, petitions, orders, or representations, whether written or oral,
from the DA regarding Witness; any correspondence between the DA and Witness
and/or his public defender; disclosure of how long and how often Witness was
interviewed in connection with the homicide case by prosecutors or the police; and
any postponements of sentencing or delay of prosecution for Witness. (Suppl. R.R. at
18a-20a.)
              Thereafter, by letter dated June 13, 2017, the DA Open Records Officer
(Open Records Officer) denied Requester’s RTKL request because the Open Records
Officer determined, after a review of the relevant files, that there were no documents
responsive to the request.           (Suppl. R.R. at 5a-7a.)           Additionally, regarding
Requester’s request for disclosure of how often and how long Witness was
interviewed by prosecutors and/or police, the Open Records Officer noted that, even
if such records hypothetically existed, they would be exempt from disclosure
pursuant to the criminal investigation exemption to the RTKL, 65 P.S.
§67.708(b)(16).3 (Suppl. R.R. at 6a.) By letter dated September 7, 2017, the Open
Records Officer supplemented and amended the June 13, 2017 RTKL response by

       2
          While Pa.R.A.P. 2173 directs that the page numbers in the supplemental reproduced record
be followed by the letter “b,” here, the page numbers in the supplemental record are followed by the
letter “a.”

       3
          Pursuant to section 708(b)(16) of the RTKL, 65 P.S. §67.708(b)(16), certain agency
records “relating to or resulting in a criminal investigation are exempt from disclosure.” Id.



                                                 2
mailing to Requester subsequently-discovered responsive records after discovering
said records had been misfiled and were not in their assigned storage box. (Suppl.
R.R. at 8a-9a.) The Open Records Officer stated that these supplemental records
were the only records responsive to the RTKL requests. (Suppl. R.R. at 9a.)
                Requester appealed the Open Records Officer’s June 13, 2017 decision
to the DA Open Records Appeal Officer (Open Records Appeal Officer). (Suppl.
R.R. at 24a-30a.) On July 10, 2017, the Open Records Appeal Officer denied
Requester’s appeal because he determined the DA did not possess the requested
documents. (Suppl. R.R. at 31a-32a.) Thereafter, Requester appealed the Open
Records Appeal Officer’s decision to the trial court. (Suppl. R.R. at 43a.)
                On November 14, 2017, the trial court ordered the Open Records Officer
to file “an affidavit or verification attesting to the accuracy of his June 13, 2017
letter” to Requester. (Trial court order, November 14, 2017.) The Open Records
Officer subsequently filed with the trial court a signed verification pursuant to 18
Pa.C.S. §4904.4 (Suppl. R.R. at 4a.) In the verification, the Open Records Officer

      4
          This statute provides as follows:

                (a) In general.--A person commits a misdemeanor of the second
                degree if, with intent to mislead a public servant in performing his
                official function, he:

                       (1) makes any written false statement which he does not
                       believe to be true;

                       (2) submits or invites reliance on any writing which he knows
                       to be forged, altered or otherwise lacking in authenticity; or

                       (3) submits or invites reliance on any sample, specimen, map,
                       boundary mark, or other object which he knows to be false.

                (b) Statements “under penalty”.--A person commits a misdemeanor
                of the third degree if he makes a written false statement which he does
                not believe to be true, on or pursuant to a form bearing notice,
(Footnote continued on next page…)

                                                  3
verified that the facts contained in both the June 13, 2017 and September 7, 2017
response letters to Requester’s RTKL requests were “true and correct to the best of
[his] knowledge, information and belief.” (Suppl. R.R. at 4a.) The Open Records
Officer stated he understood that any “false statements herein [were] made subject to
the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.”
(Suppl. R.R. at 4a.)
              On December 5, 2017, the trial court dismissed Requester’s appeal from
the decision of the Open Records Appeal Officer. (Trial court order, December 5,
2017.) The trial court stated that the appeal was “dismissed because (1) the record
supports [the DA]’s position that it does not possess the records requested[;] and (2)
the Right-to-Know[]Law does not require [the DA] to create a record.” (Trial court
order, December 5, 2017.)


                                           Discussion
              On appeal,5 Requester raises two issues. Requester argues that the trial
court erred as a matter of law when it determined that the record supported the DA’s


(continued…)

              authorized by law, to the effect that false statements made therein are
              punishable.

              (c) Perjury provisions applicable.--Section 4902(c) through (f) of
              this title (relating to perjury) applies to this section.

              (d) Penalty.--In addition to any other penalty that may be imposed, a
              person convicted under this section shall be sentenced to pay a fine of
              at least $1,000.

18 Pa.C.S. § 4904

       5
         This Court’s review in a statutory appeal, such as this one, is limited to determining
whether the trial court’s findings of fact are supported by competent evidence or whether the trial
(Footnote continued on next page…)

                                                4
position that it does not possess the requested records. Requester also argues that the
trial court abused its discretion when it dismissed his RTKL appeal relative to his
sixth RTKL request, in light of the Superior Court’s holding in Commonwealth v.
Redmond, 577 A.2d 547, 558 (Pa. Super. 1990). In the sixth RTKL request he
requested “disclosure of how often, and for how long on each occasion has [Witness]
been interviewed in connection with [the criminal homicide] case by prosecutors and
the Allegheny County Police Department.” (Suppl. R.R. at 6a.)
             We first address Requester’s argument that the trial court erred when it
determined the DA did not possess the requested records. Requester argues that the
DA acted in bad faith and fraudulently concealed and misrepresented evidence during
pre-trial discovery, trial, sentencing, appeal, and post-conviction proceedings for
Requester’s homicide case. According to Requester, the DA’s bad faith conduct
throughout the homicide trial impeaches the veracity of its affidavit regarding the
non-disclosure of the requested records. In particular, Requester contends that the
DA acted in bad faith because it withheld evidence of and misrepresented Witness’
criminal background during the homicide trial, and that Witness was promised
immunity and/or received a sentence reduction because he testified against Requester.
Further, Requester maintains that the criminal trial record belies the DA’s assertion
that the requested records do not exist.
             Under the RTKL, a record is defined as follows:



(continued…)

court committed an error of law or an abuse of discretion in reaching its decision. Allegheny
County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1029 n.3
(Pa. Cmwlth. 2011). The scope of review for a question under the RTKL is plenary. Stein v.
Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010).




                                             5
            Information, regardless of physical form or characteristics,
            that documents a transaction or activity of an agency and
            that is created, received or retained pursuant to law or in
            connection with a transaction, business or activity of the
            agency. The term includes a document, paper, letter, map,
            book, tape, photograph, film or sound recording,
            information stored or maintained electronically and a data-
            processed or image-processed document.

Section 102 of the RTKL, 65 P.S. §67.102. However, section 705 of the RTKL
provides that, “when 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.”       65 P.S. §67.705 (emphasis
added). Thus, an “agency is not required to create a record if the requested record
does not exist[,] [n]or is it required to compile the record in a new or novel format.”
Hodges v. Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011).
            The agency responding to the RTKL request has “[t]he burden of
proving a record does not exist, or is exempt from disclosure.” Id. (citing section 708
of the RTKL, 65 P.S. §67.708). However, “an agency may satisfy its burden of proof
that it does not possess a requested record with either an unsworn attestation by the
person who searched for the record or a sworn affidavit of nonexistence of the
record.” Id. Thus, “[a]n affidavit may serve as sufficient evidence of the non-
existence of requested records.” Department of Labor and Industry v. Earley, 126
A.3d 355, 357 (Pa. Cmwlth. 2015); see also Moore v. Office of Open Records, 992
A.2d 907, 909 (Pa. Cmwlth. 2010) (holding that an agency’s submission of both
sworn and unsworn affidavits that it was not in possession of requested documents
was sufficient to satisfy its burden of demonstrating the nonexistence of the records).
In the absence of any evidence of bad faith or that the records do, in fact, exist, the
averments in the affidavit should be accepted as true. See McGowan v. Department

                                          6
of Environmental Protection, 103 A.3d 374, 381-83 (Pa. Cmwlth. 2014) (internal
quotation marks omitted).
             Here, the Open Records Officer submitted a signed verification, under
penalty of perjury, stating that the June 13, 2017 and September 7, 2017 RTKL
response letters, in which he asserted the nonexistence of the requested records, were
true and correct to the best of his knowledge, information, and belief. (Suppl. R.R. at
4a.) We conclude that by submitting a signed verification, the DA met its burden of
proving that the requested records do not exist in its possession.
             Requester relies on Office of the Governor v. Scolforo, 65 A.3d 1095
(Pa. Cmwlth. 2013), to argue that despite the Open Records Officer’s verification that
the requested records are not in his possession, because the DA allegedly acted in bad
faith during his homicide trial, the veracity of the verification should be questioned.
Requester contends that the DA acted in bad faith by misrepresenting and
withholding evidence of Witness’ criminal background during the homicide trial and
that Witness was provided immunity and/or received sentence reductions for several
prior criminal charges, in exchange for testifying against Requester. Requester also
maintains that the record does not support the DA’s position that the requested
records do not exist.     Specifically, Requester references a portion of the trial
transcript, in which Witness referenced a written statement, to evidence the DA’s
supposed fraudulent concealment and misrepresentation regarding the requested
documents. Requester also argues that the DA is fraudulently concealing records
responsive to the sixth RTKL request.
             Unlike here, Scolforo did not involve the nonexistence of records.
Rather, in that case, the Office of Open Records denied the requested records because
they supposedly reflected pre-decisional deliberations that were exempt from
disclosure under the RTKL. Scolforo, 65 A.3d at 1099. We determined, that because
the affidavit submitted by the Office of Open Records was conclusory and contained

                                           7
no specific details, it was insufficient to prove the records were exempt. Id. at 1104.
Since Scolforo did not involve the nonexistence of records, we conclude it is
inapposite to the instant case.
             Moreover, any supposed bad faith conduct by prosecutors during
Requester’s homicide trial does not demonstrate that the DA acted in bad faith when
responding to Requester’s RTKL requests and is irrelevant to our review under the
RTKL. Requester has also not provided any support for his argument that the trial
record proves the existence of the requested records.        Requester argues that a
reference to Witness’ written statement within the trial transcript demonstrates that
the DA possesses said statement. However, because Requester attached said written
statement to his brief it appears that he already has obtained a copy of this statement.
See Appellant’s Brief, Appendix F. Additionally, Requester’s RTKL request only
sought the disclosure of any statements that were inconsistent with Witness’ trial
testimony, police interviews, reports, or interviews. (Suppl. R.R. at 5a.) Requester
has failed to demonstrate a reasonable likelihood that any such inconsistent
statements records exist or that the DA withheld any records.
             The Open Records Officer submitted a letter and signed verification
asserting the nonexistence of the requested records, and Requester has failed to
provide any evidence that tends to suggest otherwise. Since the DA demonstrated
that no responsive documents exist, it was not “required to create a record”
responsive to such request. 65 P.S. §67.705.
             Next, we address Requester’s argument that the trial court abused its
discretion when it dismissed his RTKL appeal relative to his sixth RTKL request in
light of the Superior Court’s holding in Redmond. The sixth RTKL request asks for
disclosure of how often and for how long Witness was interviewed in connection
with the homicide case by prosecutors and the police. (Suppl. R.R. at 9a.) From
what we can discern, Requester argues that the information sought in his sixth RTKL

                                           8
request is in the control of the DA.       Requester asserts that Witness was the
prosecution’s chief witness in the criminal homicide case and that the information
obtained from Witness’ interviews supported the prosecution’s theory that Requester
committed a premeditated and planned act of first-degree murder.          Pursuant to
Redmond, Requester contends he is entitled to the information in the sixth RTKL
request because it is exculpatory and/or impeaching. He also contends that the DA
failed to disclose and fraudulently concealed this exculpatory information during
pretrial discovery relating to Witness.
             In Redmond, a criminal homicide case, the Commonwealth appealed a
court of common pleas decision precluding the testimony of a state trooper where the
state trooper refused to identify an informant who had provided information
regarding a potential alternate murder suspect. Redmond, 577 A.2d at 549. The
Superior Court upheld the trial court’s decision to sanction the Commonwealth by
precluding the state trooper’s testimony because the Pennsylvania Rules of Criminal
Procedure and U.S. Constitution require the Commonwealth to disclose “any
evidence that is favorable to the accused and which is material to either guilt or to
punishment.” Id. (citing Pa.R.Crim.P. 305(B)(1); Brady v. Maryland, 373 U.S. 83
(1963)). The Superior Court explained that “[w]hen the reliability of a given witness
may be determinative of guilt or innocence,” evidence affecting credibility of the
witness is exculpatory and, therefore, must be disclosed by the Commonwealth. Id.
at 552-53.
             Redmond, however, did not involve a RTKL-related question. Thus, it
has no relevance to the instant case. The RTKL, rather, only concerns the disclosure
of public records in accordance with its provisions. 65 P.S. §67.102. The RKTL is a
statute “designed to promote access to official government information in order to
prohibit secrets, scrutinize the actions of public officials, and make public officials



                                          9
accountable for their actions.” Bowling v. Office of Open Records, 990 A.2d 813,
824 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013).
               However, the RTKL “is not a vehicle through which an individual can
collaterally attack the legality of his criminal confinement.” Foster v. Department of
Corrections, 159 A.3d 1020, 1022 (Pa. Cmwlth. 2017) (internal quotation marks
omitted). The RTKL also “does not contain any provisions or procedures providing
an individual with a right or avenue to declare his underlying judgment of sentence a
legal nullity.” Id.; see also Morrison v. Department of Corrections, 162 A.3d 613,
616 (Pa. Cmwlth. 2017) (holding that an appeal from an order denying “a request for
access to a public record is not the proper forum to challenge the constitutionality of
[] continued incarceration”); Coley v. Philadelphia District Attorney’s Office, 77
A.3d 694, 696 n.5 (Pa. Cmwlth. 2013) (holding that constitutional provisions have no
bearing or relevance to whether requested records are public records under the RTKL
and that the only question in a RTKL appeal is whether the requested records are
public records that must be disclosed pursuant to the RTKL); Moore, 992 A.2d at 910
(holding that an appeal from an order denying a “request for access to a public record
is not the proper forum to challenge the constitutionality of [] continued
incarceration”). In fact, our Supreme Court has held that the Post-Conviction Relief
Act6 is the exclusive state law remedy for persons challenging allegedly illegal
convictions. Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001).
               Although Requester relies on Redmond as a means for gaining access to
allegedly exculpatory evidence related to his criminal homicide trial, an appeal from
an order denying Requester’s request for access to a public record pursuant to the
RTKL is not the proper forum to gain such relief. See Coley, 77 A.3d at 696 n.5;
Moore, 992 A.2d at 910.             Thus, regardless of whether there is any merit to

      6
          42 Pa.C.S. §§9541-9546.



                                             10
Requester’s argument that he is entitled to such evidence, such claims are not within
the purview of the RTKL and we are unable to consider them in Requester’s appeal.
As discussed in the preceding section, the DA met its burden of proving under the
RTKL that it does not possess the requested records, and that is the only question
properly before this Court.


                                      Conclusion
             Because the DA established the nonexistence of the requested records,
we affirm the order of the trial court dismissing Requester’s appeal from the decision
of the Open Records Appeal Officer.




                                         11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jared Moore,                           :
                  Appellant            :
                                       :   No. 447 C.D. 2018
            v.                         :
                                       :
Allegheny County District Attorney’s   :
Office                                 :



PER CURIAM

                                   ORDER


            AND NOW, this 3rd day of December, 2018, the order of the Court of
Common Pleas of Allegheny County, dated December 5, 2017, is hereby affirmed.
