                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Routha Roussaw,                                 :
                              Petitioner        :
                                                :
                       v.                       :
                                                :
Pennsylvania Department of                      :
Corrections,                                    :   No. 662 C.D. 2018
                       Respondent               :   Submitted: November 16, 2018

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: January 16, 2019

               Routha Roussaw (Requester), pro se, petitions this Court for review of
the Office of Open Record’s (OOR) May 1, 2018 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 the OOR properly denied Requester’s appeal because the Request was for a
judicial record. Upon review, we affirm.
               Requester is an inmate at the State Correctional Institution at Dallas. On
March 10, 2018, Requester filed the Request seeking a copy of his sentencing order
pertaining to case number CP-51-CR-0931421-1989. On March 20, 2018, DOC
denied the Request on the basis that the requested record is a judicial record not
subject to disclosure under the RTKL. On April 5, 2018, Requester filed an appeal
with the OOR challenging DOC’s denial and stating his grounds for disclosure. The
OOR invited both parties to supplement the record and directed DOC to notify any

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
third parties of their ability to participate in this appeal pursuant to Section 1101(c) of
the RTKL, 65 P.S. § 67.1101(c). On April 12, 2018, DOC submitted a position
statement, asserting that the record is a judicial agency record not subject to
disclosure under the RTKL. On April 27, 2018, Requester provided a submission,
wherein he asserted that DOC should make the sentencing order available. On May
1, 2018, the OOR issued its Final Determination denying Requester’s appeal.
Requester appealed to this Court.2
              Initially, “Section 701(a) of the RTKL, 65 P.S. § 67.701(a), provides the
general rule of access: ‘Unless otherwise provided by law, a public record . . . shall
be accessible for inspection and duplication in accordance with [the RTKL].’” Ali v.
Phila. City Planning Comm’n, 125 A.3d 92, 99 (Pa. Cmwlth. 2015) (emphasis
added).

              Section 305(a) of the RTKL[3] provides for a presumption
              that all records in the possession of a [Commonwealth]
              agency are public records. Section 305(a) of the RTKL,
              however, mirrors the definition of ‘public record’ in Section
              102 of the RTKL,[4] by providing that the presumption
              does not apply where the record in question is either (1)
              exempt under Section 708 of the RTKL, 65 P.S. § 67.708;
              (2) exempt under federal or state law, regulation, or judicial
              order or decree; or (3) subject to a privilege.

Ali, 125 A.3d at 99 (emphasis added). Further, “[t]he public nature of a record,
relating to content, is distinct from public access.” Grine v. Cty. of Ctr., 138 A.3d 88,
98 (Pa. Cmwlth. 2016).




       2
         “Our standard of review ‘is whether an error of law was committed, constitutional rights
were violated, or necessary findings of fact are supported by substantial evidence. Our scope of
review is plenary.’ Silver v. Borough of Wilkinsburg, 58 A.3d 125, 127 n.2 (Pa. Cmwlth. 2012).”
Phila. Dist. Attorney’s Office v. Stover, 176 A.3d 1024, 1026 n.3 (Pa. Cmwlth. 2017).
       3
         65 P.S. § 67.305(a).
       4
         65 P.S. § 67.102.
                                               2
             Requester first argues that DOC’s denial of his Request because it is a
judicial record ignores his Request because DOC never stated whether it has the
requested document and, if it does, why it should not be accessible to Requester.
However, only agency records are disclosable under the RTKL, see Ali; therefore, it
is irrelevant whether DOC has the requested document. See Grine. Thus, “[t]he
quintessential issue in this case is whether the requested records, namely the
[sentencing order] are records ‘of’ [DOC] (a [Commonwealth] agency) or records
‘of’ the court of common pleas (a judicial agency). If the records are the former, they
are disclosable; if the latter, they are not.” Phila. Dist. Attorney’s Office v. Stover,
176 A.3d 1024, 1028 (Pa. Cmwlth. 2017) (citation omitted).

             This Court has held that a sentencing order is a record ‘of’
             the judiciary and, as such, it is not disclosable under the
             RTKL. The fact that [DOC] may possess[] - or readily
             obtain - a copy of the sentencing order in no way transforms
             the record of a judicial agency into a record of a local
             agency.

Id. at 1028-29 (citations omitted). Here, the requested document “[is] exempt from
disclosure under the RTKL as records of a judicial agency.”                Id. at 1030.
Accordingly, the OOR properly denied Requester’s appeal because he requested a
judicial record.
             Requester next asserts that his Request is governed by Section 9764 of
the Sentencing Code, 42 Pa.C.S. § 9764, and, thus, DOC’s inability to produce the
requested document “manifest[s] a fatal failure to establish [] DOC’s authority to
detain [Requester].” Requester Br. at 13.
             This Court acknowledges that Section 9764(a) of the Sentencing Code
provides, in relevant part:

             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, in addition to a

                                            3
             copy of the court commitment form DC-300B generated
             from the Common Pleas Criminal Court Case Management
             System of the unified judicial system, the following
             information:
             ....
             (8) A copy of the sentencing order and any detainers filed
             against the inmate [of] which the county has notice.

42 Pa.C.S. § 9764(a). Nevertheless, the law is well settled that “an appeal from an
OOR order denying [Requester’s] request for access to a public record is not the
proper forum to challenge . . . his continued incarceration.” Moore v. Office of Open
Records, 992 A.2d 907, 910 (Pa. Cmwlth. 2010). Consequently, this argument is
meritless.
             For all of the above reasons, the OOR’s Final Determination is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          4
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Routha Roussaw,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Pennsylvania Department of             :
Corrections,                           :   No. 662 C.D. 2018
                       Respondent      :



                                     ORDER

            AND NOW, this 16th day of January, 2019, the Office of Open Record’s
May 1, 2018 Final Determination is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
