          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Uniontown Newspapers, Inc., d/b/a              :
The Herald Standard; and Christine             :
Haines,                                        :
                        Petitioners            :    No. 66 M.D. 2015
                                               :    Argued: November 15, 2016
               v.                              :
                                               :
Pennsylvania Department of                     :
Corrections,                                   :
                       Respondent              :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge


OPINION
BY JUDGE SIMPSON                               FILED: December 19, 2016

               Before this Court are cross-motions for summary relief involving
enforcement of a final determination the Office of Open Records (OOR) issued
pursuant to the Right-to-Know Law (RTKL).1 Christine Haines, on behalf of Uniontown
Newspapers, Inc., d/b/a The Herald Standard, (Requester) appealed to OOR when
the Department of Corrections (DOC) denied her request for de-identified diagnosis
data of inmates at State Correctional Institution (SCI)-Fayette. OOR rejected DOC’s
defenses, ordering disclosure of “all responsive records.” DOC did not appeal.
Arguing DOC withheld responsive records, Requester asks this Court to compel
their disclosure and seeks statutory sanctions, including attorney fees and penalties,
for bad faith. DOC counters that sanctions are not merited because it disclosed
responsive records, albeit days after the deadline in OOR’s order.

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
             Because there is a dispute as to whether DOC provided all responsive
records, we grant summary relief in part to DOC as to withholding inmate medical
files and as to creation of a record, and deny summary relief as to its compliance.
We deny summary relief to Requester, allowing the enforcement action to proceed
for further development of the record as to whether and when DOC disclosed all
responsive records in accordance with OOR’s mandate. As the extent of DOC’s
noncompliance is unclear at this stage, penalties for bad faith are premature.


                                   I. Background
                                       A. Facts
             In September 2014, the Abolitionist Law Center published its report,
“No Escape: Exposure to Toxic Coal Waste at [SCI-] Fayette,” correlating ill
health of SCI-Fayette inmates to nearby toxic coal waste (“No Escape” Report).
Pet’rs’ Br. in Support, Ex. 6. In response, DOC undertook an internal investigation
into the charges (Investigation). Director of DOC’s Bureau of Health Care Services,
Christopher Oppman (Director Oppman), oversaw the DOC Investigation. Drs.
Paul Noel and Eugene Ginchereau spearheaded the Investigation.


             On December 31, 2014, DOC issued a press release regarding the
records reviewed during its Investigation and the results (Press Release). DOC
noted the Department of Health (DOH) was conducting its own investigation,
which was not yet final. DOH prepared its own report regarding its investigation
and findings (DOH Investigative Results), submitted to DOC on February 3, 2015.
DOC provided information to DOH, such as by email, including inmates’ health
data, to assist DOH’s investigation.



                                          2
                                   B. Procedural History
               Before the investigations were completed, and inspired by the “No
Escape” Report, Requester submitted a request to DOC on September 25, 2014,
seeking (with emphasis added):
               documentation of illnesses contracted by inmates and/or staff
               members at SCI-Fayette. I am not seeking identifying
               information, only the types of reported contracted illnesses
               and the number of inmates or staff members with those
               illnesses. I am particularly interested in various types of
               cancer reported at SCI-Fayette since its opening, as well as
               respiratory ailments reported. If there is also information
               comparing the health at SCI-Fayette with the health at other
               state correctional facilities, that would also be helpful.

(Request). See Pet’rs’ Br. in Support at Ex. 3. After invoking an extension, DOC
issued a denial, citing several exceptions in the RTKL.2 Requester appealed to OOR.


               Before OOR, DOC limited its argument to the medical records
exception in Section 708(b)(5) of the RTKL, 65 P.S. §67.708(b)(5), and the
noncriminal investigation exception in Section 708(b)(17) of the RTKL, 65 P.S.
§67.708(b)(17). In support, DOC submitted a declaration of Director Oppman as
to the investigative nature of responsive records (OOR Declaration). Requester
countered that aggregated data,3 lacking any individual identifiers, is not protected.

       2
         Under Section 708(b) of the RTKL, DOC cited the security exceptions in 65 P.S.
§67.708(b)(1)(ii) (personal security) and 65 P.S. §67.708(b)(2) (public safety); the investigative
exceptions in 65 P.S. §67.708(b)(16) (criminal investigations) and 65 P.S. §67.708(b)(17)
(noncriminal investigations); 65 P.S. §67.708(b)(5) (medical records); 65 P.S. §67.708(b)(6)
(personal identifiers); 65 P.S. §67.708(b)(10) (predecisional deliberations); and, 65 P.S.
§67.708(b)(12) (work papers).
       3
         “Aggregated data” is defined as: “A tabulation of data which relate to broad classes,
groups or categories so that it is not possible to distinguish the properties of individuals within
those classes, groups or categories.” Section 102 of the RTKL, 65 P.S. §67.102.



                                                3
                Reasoning that DOC did not prove either exception, OOR directed
disclosure of “all responsive records … within [30] days” (Disclosure Order).4 See
Haines & The Herald Standard v. Dep’t of Corr., OOR Dkt. AP 2014-1695 (filed
December 1, 2014) (Final Determination).                As to Section 708(b)(17), OOR
determined DOC did not show it performed an investigation attendant to its duties;
rather, the investigation was ancillary and primarily performed by DOH. As to
Section 708(b)(5), OOR concluded the exception did not apply.                     OOR noted
“[DOC] has not asserted what records are being withheld pursuant to this
exemption, and has not provided any evidence on appeal to explain why these
records fall under this exemption.” Id. at 7. Because Requester stated “she is not
seeking any identifying information,” id., the medical records exception did not
apply on its face, and DOC did not meet its burden. OOR also explained de-
identified information is not protected by the Health Insurance Portability and
Accountability Act (HIPAA), which pertains only to covered entities. 45 C.F.R.
§164.502(a). Importantly, DOC did not appeal.


                After the deadline in the Disclosure Order passed, on January 6 or 7,
2015, DOC disclosed the following: statistics of inmates diagnosed with
pulmonary and gastrointestinal ailments from 2010-2014, including a comparison
across institutions; comparisons of natural death and cancer deaths; and, a
spreadsheet of SCI-Fayette cancer deaths, by type of cancer, from 2003-2013,
including comparison by institution from 2010-2013.                  DOC also submitted a
declaration that it provided all responsive records, Post-Final Determination (FD)
Declaration, 1/7/15). Pet’rs’ Br. in Support at Ex. 9.

      4
          As DOC did not maintain staff health records, only inmate records were before OOR.



                                                4
             Subsequently, DOC disclosed the following: the Press Release; water
analysis at SCI-Fayette; Dr. Noel’s investigative summary; a redacted copy of Dr.
Ginchereau’s medical record review; a redacted list of cancer patients at SCI-
Fayette (unspecified date); statistics regarding oncology treatments from
November 2014; and, the DOH Investigative Results. DOC Br. in Support at 9.


             Requester filed a petition for review asking this Court to compel DOC
to disclose responsive records pursuant to the Disclosure Order. Requester also
seeks attorney fees and civil penalties, alleging DOC committed bad faith.


             DOC filed preliminary objections, which this Court overruled. Then,
Requester filed a motion for judgment on the pleadings, which this Court denied.
See Uniontown Newspapers v. Dep’t of Corr. (Pa. Cmwlth., No. 66 M.D. 2015,
filed December 7, 2015) (single j. op.). Senior Judge Oler held judgment on the
pleadings was inappropriate because there was an issue of material fact as to
whether DOC’s interpretation of the Request was reasonable or whether DOC
narrowed its response in bad faith.


             In April 2016, Requester deposed Director Oppman and Dr. Noel as
to DOC’s maintenance of inmate diagnosis data, and how they obtained that data
during the Investigation, and provided the data to DOH for its investigation.


             The parties filed cross-motions for summary relief. Although both
parties submit there are no disputes of material fact, they disagree as to whether
DOC produced all responsive records in compliance with the Disclosure Order.



                                         5
There are no stipulations identifying the records provided to date with particularity.
Requester described records in Exhibit 16 to her brief in support of summary relief
that remain outstanding, and which she claims are responsive to the Request.


                                  C. Contentions
             Requester seeks judgment in her favor that DOC did not comply with
the Disclosure Order because DOC did not provide a complete response or perform
a good faith search as required by Section 901 of the RTKL, 65 P.S. §67.901. She
asserts DOC has a duty to disclose inmate medical files in redacted form. In
addition, as source material for the Investigation and DOH’s Investigative Results,
Requester contends disclosure of inmate medical files is in the public interest, such
that DOC should have exercised its discretion to release them.


             In opposition, DOC counters that it disclosed responsive records
based on its interpretation of the Request. DOC refutes that inmate medical files
are subject to the Request, which sought aggregated data. DOC challenges the
allegations of bad faith as grounds for sanctions when it disclosed all responsive
records. DOC maintains it cooperated with Requester throughout the process,
providing records not comprised in the Request, like DOH’s Investigative Results.


             In its motion for summary relief, DOC alleges it disclosed all records
responsive to the Request. DOC contends its construction of the Request as limited
to illnesses inmates contracted at SCI-Fayette is reasonable.       It asserts inmate
medical files are not sought by the Request, and are exempt in their entirety. DOC
also claims Requester did not identify any responsive records that remain undisclosed.



                                          6
                                        II. Discussion
              We are asked to discern DOC’s compliance with the Disclosure Order.
Requester argues responsive records remain outstanding, whereas DOC counters
that it complied. In this posture, we do not question OOR’s resolution of the merits.
Com. v. Derry Twp., 351 A.2d 606, 610 (Pa. 1976) (failure to appeal agency order
“foreclosed any attack on its content or validity in … enforcement proceedings”).


              In an enforcement action, Requester invokes jurisdiction ancillary5 to
our appellate jurisdiction under the RTKL. See Dep’t of Envtl. Prot. v. Cromwell
Twp., Huntingdon Cnty., 32 A.3d 639 (Pa. 2011) (“enforcement proceedings lie in …
appellate jurisdiction; they are not appealable as of right under 42 Pa. C.S. §723(a)”);
Pa. Human Relations Comm’n v. Scranton Sch. Dist., 507 A.2d 369 (Pa. 1986).


              Relevant here, the RTKL vests this Court with jurisdiction to assess an
agency’s compliance by empowering “Chapter 13 courts” with the exclusive
authority to impose sanctions in the form of attorney fees or civil penalties for
denials of access after “ma[king] relevant factual findings.” Bowling v. Office of
Open Records, 75 A.3d 453, 458 (Pa. 2013); see Sections 1304 and 1305 of the
RTKL, 65 P.S. §§67.1304, 67.1305. As a party to the underlying proceeding,
Requester may seek enforcement of OOR’s Disclosure Order through a petition to
enforce. See, e.g., Dep’t of Aging v. Lindberg, 469 A.2d 1012 (Pa. 1983) (a party
other than issuing agency may seek enforcement of agency’s order).


       5
         We may grant relief in the nature of mandamus in our ancillary jurisdiction. Avis Rent A
Car Sys., Inc. v. Dep’t of State, State Bd. of Vehicle Mfrs. Dealers & Salespersons, 507 A.2d 893
(Pa. Cmwlth. 1986).



                                               7
                                 A. Legal Standard
             Applications for summary relief are governed by Pa. R.A.P. 1532(b).
It provides: “[a]t any time after the filing of a petition for review in an appellate or
original jurisdiction matter the court may on application enter judgment if the right
of the applicant thereto is clear.” Id. “An application for summary relief may be
granted if a party’s right to judgment is clear and no material issues of fact are in
dispute.” Leach v. Turzai, 118 A.3d 1271, 1277 n.5 (Pa. Cmwlth. 2015) (en banc),
aff’d, 141 A.3d 426 (Pa. 2016). “In ruling on application[s] for summary relief, we
… enter judgment only if there is no genuine issue as to any material facts and the
right to judgment is clear as a matter of law.” Cent. Dauphin Sch. Dist. v. Dep’t of
Educ., 598 A.2d 1364, 1366-67 (Pa. Cmwlth. 1991).


             An appellate court may grant relief in order to enforce OOR’s final
determinations. See, e.g., Wishnefsky v. Dep’t of Corr. (Pa. Cmwlth., No. 582 M.D.
2014, filed July 8, 2015) (permitting relief in the nature of mandamus); Crockett v.
Se. Pa. Transp. Auth. (Pa. Cmwlth., No. 2295 C.D. 2011, filed September 11, 2012)
(same).


                    B. Requester’s Motion for Summary Relief
                                    1. Compliance
             Requester bears the burden to prove that DOC did not comply with
OOR’s order directing DOC to disclose “all responsive records” within 30 days.
Notably, the language of the Disclosure Order, not that of the Request, is before us.
The operative term there is “all responsive records,” meaning records OOR deemed
within the Request. Without confirming the composition of “responsive records,”
this Court is not in a position to compel disclosure or punish noncompliance.

                                           8
                                a. Scope of Request
             Neither a party nor OOR may refashion the Request in the interest of
providing responsive records. Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823,
833 (Pa. Cmwlth. 2014) (en banc). A party’s construction of a request such that
there are no responsive records, other than those that are clearly protected, is
improper. See Carey v. Dep’t of Corr. (Carey II) (Pa. Cmwlth., No. 1348 C.D.
2012, July 3, 2013) (unreported); see also Carey v. Dep’t of Corr. (Carey I); 61
A.3d 367 (Pa. Cmwlth. 2013), accord Shuler v. Dep’t of Corr. (Pa. Cmwlth., No.
237 C.D. 2016, filed Nov. 1, 2016) (unreported), 2016 WL 6441187 (remanding to
OOR to assess whether DOC provided all responsive records to request seeking
records other than the privileged document DOC identified).


             OOR’s construction of the Request in the Final Determination governs
our disposition of whether DOC complied with the Disclosure Order. Wishnefsky.
DOC’s interpretation of the Request pertains only to whether its denial of access
reflects bad faith. As such, OOR’s reasoning in the Final Determination is crucial.


                                 (i) Subject Matter
             OOR construed the Request as one for data, without any identifying
information. Final Determination at 3, 7. OOR found “[DOC] has not established
that the Request seeks exempt medical records.” Id. at 9. Indeed, the Request does
not seek inmate medical files. Requester argued she sought “aggregated data, which
is not subject to the majority of exemptions cited by [DOC].” Id. at 3. Based on the
Final Determination, OOR construed the Request as seeking data of SCI-Fayette
inmates’ diagnoses, by type of ailment and number of inmates afflicted.



                                          9
              In contrast to OOR’s construction, DOC construed the Request to
require review of inmate medical files: “to determine (1) whether the inmate has
cancer or a respiratory ailment[;] (2) when the inmate was diagnosed with cancer or
a respiratory ailment[;] and[,] (3) whether the inmate was at SCI[-]Fayette when he
was diagnosed with cancer or a respiratory ailment.” DOC Br. in Op. at 34. In other
words, DOC construed the Request as seeking data on inmates first diagnosed while
at SCI-Fayette. As a result, DOC argued the Request required the reviewer to make
a medical judgment tying an inmate’s diagnosis to the institution. Id.


              Throughout this enforcement proceeding, DOC emphasized the phrase
“contracted at.” DOC’s construction of the Request as seeking only data of inmates
who “contracted” ailments during their incarceration at SCI-Fayette, has some basis
in the language of the Request; however, in an enforcement action, we focus on the
unappealed Final Determination and the language of the Disclosure Order. Derry
Twp.; Wishnefsky. DOC’s construction is too limited given OOR’s reasoning in the
Final Determination.


              In particular, OOR repeated that Requester did not seek identifying
information. Final Determination at 7-9. Also, OOR did not focus on the word
“contracted” in the Request. Id. Thus, there is no support for DOC’s conclusion
that it was ordered to disclose only information about inmates who first “contracted”
a disease while at the specific facility.


              Further, DOC’s construction is inconsistent with the declaration
Director Oppman submitted to OOR acknowledging that DOC had responsive



                                            10
records to which the noncriminal investigation exception applied. Specifically, he
attested “[DOC] has generated the records that [Requester] requests; however, those
records were created as part of an investigation that [DOH] is conducting.” OOR
Declaration at ¶6 (emphasis added) (Pet’rs’ Br. at Ex. 8). OOR rejected DOC’s
noncriminal investigative defense, and it is “those records” that must be disclosed.


             Because the parties misplace emphasis on their interpretations of the
Request, as opposed to OOR’s construction in the Final Determination, we are
unable to grant summary relief in Requester’s favor as to DOC’s noncompliance.
Nonetheless, so as to address DOC’s claim for summary relief, we reject DOC’s
narrow response, and we hold inmate diagnoses data, particularly as to types of
illness and number of inmates so diagnosed, are comprised in the Disclosure Order.


                                  (ii) Request Date
             Because it is apparent the parties did not regard the Request date as
relevant, we underscore that DOC may only be culpable for failing to disclose
records that existed as of the date of the Request. Records post-dating the Request
are not “responsive” regardless of their relevance to the subject matter.


             Under Section 705 of the RTKL (relating to creation of a record), “the
standard is whether such a record is in existence and in possession of the
Commonwealth agency at the time of the right-to-know request.” Paint Twp. v.
Clark, 109 A.3d 796, 805 (Pa. Cmwlth. 2015) (emphasis added) (citation omitted).
However, compiling records from a database is not “creation of a record.” Dep’t
of Envtl. Prot. v. Cole, 52 A.3d 541 (Pa. Cmwlth. 2012).



                                          11
              The Request date (9/25/14) defines the universe of responsive records,
as DOC only has a duty to disclose records created on or before September 25, 2014.
DOC had no obligation to disclose records created after the Request date, such as the
Press Release, 12/31/15, or the DOH Investigative Results,6 as their creation date
excludes them from the confines of “responsive records.”                  Consequently, the
Disclosure Order only encompasses records that existed as of the Request date.


                            b. Types of Responsive Records
              Requester identifies three types of responsive records DOC withheld in
violation of the Disclosure Order: (i) records pre-existing the Investigation; (ii)
Investigation-related records; and, (iii) inmate medical files. We review each in turn.


                              (i) Pre-existing Investigation
              Requester asserts that DOC deliberately withheld responsive records
that were not involved in its Investigation. Specifically, Requester identifies five
sources of records: (1) a database of treatment at Chronic Care Clinics, which may
be isolated by institution (PTrax); (2) a database of cancer patient inmates, including
historical data (Oncology DB); (3) inmate grievances logged with the Bureau of
Health Care Services (Grievances); (4) mortality lists by facility, showing cause of
death (Mortality Lists); and, (5) reports from DOC’s pharmacy contractor, showing
number of inmates treating for pulmonary and gastrointestinal medications
(Contractor Reports). Pet’rs’ Br. at 28-31. Notably, DOC did not disclaim that such
records were responsive, or that it disclosed records from these five sources.
       6
          DOC’s point that Requester sought records after issuance of the Final Determination is
well-taken, and such records were gratuitously provided. Requester may submit another request
for records created after the date of the Request.



                                              12
             Other than the Grievances, all of these records are fairly comprised
within the Disclosure Order such that DOC had a duty to disclose them. Indeed, the
submissions reflect that a Mortality List was disclosed, as well as a redacted copy of
the Oncology DB for a limited period. However, it is not possible to discern at this
stage whether DOC disclosed all responsive pre-existing Investigation records.


                         (ii) Investigation-related Records
             Requester contends DOC withheld responsive records described in
Director Oppman’s OOR Declaration and deposition pertaining to the Investigation.
Requester identifies emails between DOH and DOC related to their investigations.
Such emails, if containing inmate diagnosis data, qualify as “responsive records.”


             Adding complexity to this Court’s task, neither party is definitive about
when records were created during the Investigation. Since the Investigation began
prior to the Request date, and continued thereafter, it is important to determine the
date of investigative records. The DOH Investigative Results show DOC reported
inmate diagnoses to DOH that formed the basis for DOH’s findings. These records
are at the crux of the Request, and it is these records, notwithstanding their alleged
investigative content, that – if existing as of the date of the Request – DOC had a
duty to disclose within 30 days of OOR’s order.


                             (iii) Inmate Medical Files
             Requester also claims DOC has a duty to disclose inmate medical
files, in redacted form to remove identifiers, because they were the source material
for the data. We disagree for two reasons.



                                         13
             One, inmate medical files are not fairly comprised within the Request.
Repeatedly, Requester disclaimed any interest in individual medical files,
emphasizing that the Request pertained to data or reports in aggregate form.
OOR’s reasoning in the Final Determination relied on the Requester’s disinterest in
individual medical files, and emphasized that Requester sought data. Requester
now claims entitlement to redacted medical files because the physician deponents
explained they contain diagnoses information. Requester may not change her
Request in subsequent legal proceedings. Heltzel; Pa. State Police v. Office of
Open Records (George), 995 A.2d 515 (Pa. Cmwlth. 2010) (noting parties may
limit a request by stipulation).


             Moreover, diagnosis information located in multiple inmate medical
files does not constitute data of inmates’ diagnoses by type unless DOC compiles
the information from each file. DOC has no duty to perform research in response to
a RTKL request to compile the diagnoses data sought. Dep’t of Corr. v. Disability
Rights Network of Pa., 35 A.3d 830 (Pa. Cmwlth. 2012). That is tantamount to
creation of a record, contrary to Section 705 of the RTKL, 65 P.S. §67.705.


             Two, an individual’s medical file is exempt under Section 708(b)(5)
of the RTKL. Section 708(b)(5) specifically exempts the following:

             A record of an individual's medical, psychiatric or
             psychological history or disability status, including an
             evaluation, consultation, prescription, diagnosis or treatment;
             results of tests, including drug tests; enrollment in a health
             care program or program designed for participation by persons
             with disabilities, including vocation rehabilitation, workers'
             compensation and unemployment compensation; or related
             information that would disclose individually identifiable
             health information.

                                        14
65 P.S. §67.708(b)(5) (emphasis added). However, medical incident/injury reports
are not protected under Section 708(b)(5) of the RTKL. See Dep’t of Corr. v. St.
Hilaire, 128 A.3d 859 (Pa. Cmwlth. 2015). DOC may be required to redact
information from reports, as distinguished from inmates’ medical files. Id. An
inmate’s medical file is exempt, and not subject to redaction. Williams v. Dep’t of
Corr. (Pa. Cmwlth., No. 2068 C.D. 2015, filed June 13, 2016) (unreported).


             Further, individual medical files, protected under Section 708(b)(5),
are one type of record to which Requester’s aggregated data defense does not
apply.   Section 708(d) of the RTKL provides:          “The exceptions set forth in
[Section 708(b)] shall not apply to aggregated data maintained or received by an
agency, except for data protected under subsection[s] (b)(1), (2), (3), (4), or (5).”
65 P.S. §67.708(d) (emphasis added). Therefore, information protected by Section
708(b)(5) remains protected.


                                    c. Summary
             In sum, there is a dispute of material fact as to whether DOC provided
“all responsive records” as mandated by OOR’s Disclosure Order.                From the
submissions, it appears that some Investigation-related records and records pre-
existing the Investigation remain outstanding.       As to those records, we deny
Requester’s motion for summary relief without prejudice, so the enforcement action
may proceed to further develop the record as to the status of these records.


             As to inmate medical files, we deny Requester’s motion for summary
relief with prejudice, and we grant DOC’s motion for summary relief to the extent



                                          15
it seeks judgment that it is not required to disclose inmate medical files, even in
redacted form, or to create new7 records compiling data from those inmate files.


               In the interest of limiting the matters that may be the subject of
stipulations or further fact-finding, we determine some of the records Requester
identified in Exhibit 16 to her brief are not comprised within the Disclosure Order.
As such, DOC has no duty to disclose them.8


                                         2. Bad Faith
               Requester also asks this Court to award attorney fees and costs, and to
impose civil penalties based on DOC’s noncompliance and bad faith. Bad faith may
constitute grounds for an award of attorney fees under Section 1304(a) of the RTKL,
65 P.S. §67.1304, or for the imposition of civil penalties under Section 1305 of the
RTKL, 65 P.S. §67.1305. Evidence of bad faith is required. Barkeyville Borough
v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012).


               Here, Requester claims three bases for bad faith: (1) DOC’s untimely
disclosure beyond the 30-day deadline in OOR’s order; (2) DOC’s failure to perform
a good faith search of records as required by Section 901 of the RTKL; and, (3)
DOC’s continued nondisclosure of responsive records.

       7
         In the event DOC created any records prior to the Request date from its review of
inmate medical files when conducting the Investigation, those records are responsive, and are not
excluded under Section 705 of the RTKL, 65 P.S. §67.705 (creation of a record).
       8
         For example, drafts of the Press Release that do not contain data of inmate diagnoses are
not responsive records. Emails exchanged during the Investigation are responsive only to the
extent they contain diagnoses data. Grievances were not addressed in the Final Determination;
therefore, grievances are not contemplated in the Disclosure Order.



                                               16
              As to untimeliness, there is no dispute DOC provided responsive
records a few days after the 30-day deadline. Although untimeliness may merit a
finding of bad faith, such a short lapse by itself may be de minimis.


               As to compliance with Section 901 of the RTKL, DOC was required
to make a good faith effort to determine whether it had possession, custody or
control of responsive records. 65 P.S. §67.901; Chambersburg Area Sch. Dist. v.
Dorsey, 97 A.3d 1281 (Pa. Cmwlth. 2014) (remanding to trial court to assess bad
faith when school district discovered additional 3,500+ pages of records after first
remand to trial court; trial court erred in not supplementing record as to bad faith).
An agency’s failure to perform a good faith search in response to a RTKL request
may be grounds for bad faith. Id.


              At this stage, the submissions suggest DOC did not comply with Section
901.9 DOC discovered responsive records during the Investigation, as opposed to
when it received the Request, raising the question as to the thoroughness of its initial
search. Also, DOC’s narrow construction of its duty under the Disclosure Order
appears self-serving, similar to its responses in appeals whereby it construed a
request as seeking a record that is clearly exempt. See, e.g., Carey II; Shuler.




       9
         Requester alleges Director Oppman admitted during deposition that he did no search in
response to the Request. However, his testimony is less than clear because the questions
pertained to both the search performed for records in response to the Request, and to the
Investigation. Also, Requester’s position presumes Director Oppman bore responsibility for
responding to the Request.



                                             17
             As to compliance with OOR’s Disclosure Order, it is evident that
DOC did not disclose responsive records that pre-existed the “No Escape” Report,
the Request date, and that were created as part of its Investigation. The deposition
testimony revealed that DOC maintains inmate diagnosis data in PTrax and the
Oncology DB, and that DOC receives Contractor Reports pertaining to types of
inmate illnesses. These records fall within the Disclosure Order. Yet, it appears
that these records remain undisclosed.


             Nonetheless, bad faith is a matter of degree, implicating the extent of
noncompliance. As the extent of DOC’s noncompliance is unclear, we decline to
make findings of bad faith at this time. Further, the duration DOC withheld
responsive records may also weigh in favor of awarding civil penalties.
Accordingly, we reserve judgment on sanctions until after disposition of the merits.


                      C. DOC’s Motion for Summary Relief
             In its motion for summary relief, DOC claims it is entitled to judgment
in its favor because it reasonably construed the Request, and it provided all
responsive records within its possession. Accordingly, its conduct does not warrant
sanctions. DOC also argues it has no duty to provide inmate medical files, or to
create a record compiling the diagnosis data from those files.


             As explained above, we reject DOC’s contention that it reasonably
construed the Request. DOC misplaced its focus on the language of the Request,
when its compliance is judged by the parameters of the Disclosure Order in the
enforcement stage.



                                         18
             In addressing Requester’s cross-motion, we explained our reasons for
granting judgment in DOC’s favor that it has no duty to disclose inmate medical
files or to create new records by compiling the diagnoses data contained in medical
files.


             Although additional fact-finding is necessary to determine Requester’s
entitlement to relief, it is clear on the present submissions that DOC is not entitled to
judgment in its favor that it complied with the Disclosure Order.


             To establish that it provided all responsive records, DOC submitted the
Post-FD Declaration. Therein, Director Oppman attested “[DOC] as [sic] previously
provided records to [Requester] regarding this [R]equest.” Id. at ¶4 (Pet’rs’ Br. at
Ex. 9). Without describing or enumerating the records provided to Requester, and
without explaining when the records were provided, Director Oppman states,
“[b]eyond the records previously provided to [Requester], [DOC] does not have
within its custody, possession, or control, reports of illnesses contracted at SCI-
Fayette, by type and quantity and comparison of illness rates at other state
correctional institutions.” Id. at ¶6 (emphasis added).


             As the responding agency, DOC bears the burden of proving that no
additional responsive records exist. Hodges v. Dep’t of Health, 29 A.3d 1190 (Pa.
Cmwlth. 2010); Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth.
2010). “[A]n 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.” Hodges. In similar



                                           19
cases, DOC has provided either sworn or unsworn affidavits in order to satisfy its
burden of proving it does not possess requested records. See Sturgis v. Dep’t of
Corr., 96 A.3d 445 (Pa. Cmwlth. 2014). In the absence of any competent evidence
that the agency acted in bad faith or that the agency records exist, “the averments
in [an agency’s] affidavits should be accepted as true.” Smith Butz, LLC v. Pa.
Dep’t of Envtl. Prot., 142 A.3d 941, 945 (Pa. Cmwlth. 2016) (quoting McGowan v.
Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Cmwlth. 2014)).


             Because DOC narrowly construed the Disclosure Order, and because
its declarations track its narrow construction, DOC did not establish it provided all
responsive records. As such, DOC is not entitled to judgment in its favor. Leach.
Moreover, there is some evidence of bad faith and other valid grounds to discount
DOC’s declarations. Accordingly, we deny DOC’s request for summary relief as to
its compliance.


                                  III. Conclusion
             There is a genuine issue of material fact as to whether DOC provided
all responsive records because DOC did not disclose responsive records that pre-
existed the Investigation and the Request (i.e., PTrax, Oncology DB, Contractor
Reports). Further, both parties disregarded the importance of the Request date. As
a result, there is no indication when the Investigation-related records (such as
emails) were created. To limit the issues for trial, the Court requests stipulations
within the next 90 days as to what documents DOC provided, the creation date of
the provided documents (if known), and when the documents were provided, so as




                                         20
to limit fact-finding to only the pre-existing records and Investigation-related
records that are outstanding.


             To allow full development of the record, this matter shall proceed
through trial, at which Requester bears the burden of proving DOC’s
noncompliance and bad faith. To the extent DOC contends no responsive records
exist beyond those already produced in response to the Disclosure Order, DOC
bears the burden of proving this defense.




                                      ROBERT SIMPSON, Judge




                                        21
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Uniontown Newspapers, Inc., d/b/a         :
The Herald Standard; and Christine        :
Haines,                                   :
                        Petitioners       :   No. 66 M.D. 2015
                                          :
             v.                           :
                                          :
Pennsylvania Department of                :
Corrections,                              :
                       Respondent         :


                                     ORDER

             AND NOW, this 19th day of December, 2016, it is ORDERED and
DECREED as follows:


             Petitioners’ motion for summary relief is DENIED, without prejudice
to allow the enforcement action to proceed for further fact-finding regarding
Respondent’s disclosure of “all responsive records,” narrowed to exclude inmate
medical files, even in redacted form, or creation of new records from inmate
medical files, and limited to: (1) the five types of pre-existing Investigation records
described in the accompanying opinion; and, (2) the Investigation-related records,
including but not limited to those records to which Director Oppman referred in his
submission to the Office of Open Records (OOR);


             Respondent’s motion for summary relief is GRANTED IN PART, as
to the disclosure of inmate medical files and creation of a record claims; and
DENIED IN PART, as to its compliance with OOR’s order.
             AND, because the extent of Respondent’s noncompliance is not yet
determined, this Court reserves judgment as to imposing statutory sanctions until
disposition of the merits;


             AND FURTHER, the parties are directed to submit stipulated facts
identifying the records disclosed, date of record (if known) and the date of
disclosure, and identifying the “Investigation-related” records to which Director
Oppman referred in the OOR submissions; as well as stipulated facts identifying
with more detail the 5 categories of pre-existing Investigation records, so that it is
clear what remains outstanding by category within 90 days of this order.




                                       ROBERT SIMPSON, Judge
