            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gregory Dunbar,                     :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 1684 C.D. 2017
                                    : Submitted: March 16, 2018
                                    :
Pennsylvania State Police,          :
                                    :
                         Respondent :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: August 23, 2018

               Gregory Dunbar (Requester), pro se, petitions for review from a final
determination of the Office of Open Records (OOR) that denied his appeal from the
Pennsylvania State Police’s (PSP) denial of his request under the Right-to-Know
Law (RTKL).1 Requester argues that PSP did not meet its burden of proving that it
does not have certain records responsive to the request in its possession, control or
custody. Upon review, we affirm.
               Requester, who is an inmate at the State Correctional Institution at
Greene, filed a request seeking (1) the names of two state troopers who interviewed
him on August 2, 2017, and (2) “the [PSP]’s ‘ethical duties’ concerning


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
investigations of private complaints within Cumberland County filed by State
prisoners” (Request). Supplemental Reproduced Record (S.R.R.) at 1b.
             PSP granted the first part of the Request by providing the names of the
State Troopers. However, PSP denied the second part of the Request seeking
“ethical duties.” In support of the denial, William Rozier, PSP’s Open Records
Officer, verified that no records responsive to this portion of the Request existed
within PSP’s possession, custody or control.
             Requester appealed to OOR challenging the denial and the veracity of
Rozier’s statement. Requester included a copy of PSP Field Regulation 7-1, which
instructs troopers how to respond to inmate complaints, and a Department of
Corrections Policy No. DC-ADM 004, dated June 4, 1989, identifying PSP as the
investigating agency. He claims that PSP Field Regulation 7-1 is responsive to the
Request, but this record was not provided by PSP. OOR invited the parties to submit
information and legal argument in support of their positions. PSP submitted a
position statement, along with the sworn affidavit of Rozier that no records
responsive to the request for PSP’s “ethical duties” exist in PSP’s possession,
custody or control (Rozier Affidavit).       Rozier further attested that PSP Field
Regulation 7-1 does not dictate troopers’ ethical duties; thus, the regulation is not
responsive to the Request.
             OOR determined that PSP met its burden of proving that responsive
records do not exist in its possession, custody or control based on the Rozier
Affidavit. OOR denied Requester’s appeal and directed PSP to take no further
action.




                                         2
                 Requester then petitioned this Court for review.2 Requester contends
that PSP did not act in good faith or meet its burden of proving that there are no
responsive records in its possession, custody or control. He asserts that the Rozier
Affidavit amounts to a violation of Sections 4911(a)(1) and 4904 of the Crimes
Code, 18 Pa. C.S. §§4911(a)(1)3 and 4904,4 pertaining to false statements, based on
PSP Field Regulation 7-1, which he claims is responsive to his Request. He argues
that OOR’s final determination is arbitrary and capricious because it is based on
Rozier’s false affidavit.5
                 “A written request should identify or describe the records sought with
sufficient specificity to enable the agency to ascertain which records are being
requested . . . .” Section 703 of the RTKL, 65 P.S. §67.703. Section 901 of the
RTKL mandates:


       2
         In appeals from determinations made by OOR involving Commonwealth agencies, our
standard of review is de novo and our scope of review is plenary. Bowling v. Office of Open
Records, 75 A.3d 453, 477 (Pa. 2013).

       3
           Section 4911(a)(1) provides:

                 (a) Offense defined.–A person commits an offense if he:

                        (1) knowingly makes a false entry in, or false alteration of,
                 any record, document or thing belonging to, or received or kept by,
                 the government for information or record, or required by law to be
                 kept by others for information of the government; . . . .

18 Pa. C.S. §4911(a)(1).

       4
           Section 4904 penalizes unsworn falsification to authorities.

       5
         To be arbitrary and capricious, there must be a “willful and deliberate disregard” of the
evidence submitted, “which one of ordinary intelligence could not possibly have avoided in
reaching a result.” Pocono Manor Investors, LP v. Pennsylvania Gaming Control Board, 927
A.2d 209, 216 (Pa. 2007).
                                                  3
             Upon receipt of a written request for access to a record, an
             agency shall make a good faith effort to determine if the
             record requested is a public record, legislative record or
             financial record and whether the agency has possession,
             custody or control of the identified record, and to respond
             as promptly as possible under the circumstances existing
             at the time of the request.

65 P.S. §67.901 (emphasis added).
             “If the agency responding to the RTKL request determines that the
record does not exist, it has ‘[t]he burden of proving [that the] record does not exist.’”
Smith Butz, LLC v. Pennsylvania Department of Environmental Protection, 142
A.3d 941, 945 (Pa. Cmwlth. 2016) (quoting Hodges v. Pennsylvania Department of
Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011)). An agency may satisfy its burden
of proof that it does not possess a requested record with a sworn affidavit of its
nonexistence. Id. Absent evidence of bad faith, the veracity of an agency’s
submissions should be accepted as true. McGowan v. Pennsylvania Department of
Environmental Protection, 103 A.3d 374, 382-83 (Pa. Cmwlth. 2014).
             Here, in support of its denial to the extent that the Request sought
records pertaining to PSP’s “ethical duties,” PSP submitted the Rozier Affidavit. In
the Affidavit, Rozier stated that PSP’s Right to Know Office contacted PSP’s Bureau
of Research and Development (Bureau), which is responsible for maintaining PSP
regulations. S.R.R. at 23b. The Bureau determined that there were no records
responsive to the Request. Id. Rozier attested under penalty of law that “PSP does
not have any records in its possession, control or custody that [are] responsive to this
[R]equest.” Id.
             Requester claims that the Rozier Affidavit is false and that PSP has
acted in bad faith based on PSP’s Field Regulation 7-1, which he claims is responsive
to his Request and proves the falsity of the Affidavit. The Rozier Affidavit addresses
                                            4
the regulation. “While this document directs how PSP Troopers respond to inmate
complaints, it is not a document which provides what their ‘ethical duties’ are when
investigating ‘private complaints . . . filed by State prisoners.’” S.R.R. at 23b.
Rozier continues: “What moral principles or moral values PSP Troopers are to
adhere to when investigating prisoner complaints is not provided in Field Regulation
7-1, thus PSP did not act in bad faith when responding to the [R]equest.” Id.
             Upon review, Field Regulation 7-1 states that the purpose of the
regulation is to “establish standard procedures concerning response to written
complaints received from inmates from the Department of Corrections.” S.R.R. at
11b. It details procedures for investigating criminal complaints, beginning with
assignment and continuing through the termination of the investigation. Id. It also
outlines the supervisor’s responsibilities. Id. The procedures contained in the
regulation are just that, procedures. The regulation does not address PSP’s “ethical
duties.” Ethics generally refers to “the discipline dealing with what is good and bad
with moral duty and obligation” or professional standards of conduct. Merriam-
Webster’s Collegiate Dictionary 426 (9th ed. 1987); accord Black’s Law Dictionary
553 (6th ed. 1990) (“Of or relating to moral action, conduct, motive or character;
. . . treating of moral feelings, duties or conduct; containing precepts of morality;
moral[;] . . . conforming to professional standards of conduct.”); see, e.g., The Code
of Judicial Conduct (a standard for guiding judicial ethics). Because the field
regulation does not establish or address ethical duties, moral values, or standards of
conduct of state troopers in the furtherance of their duties, Field Regulation 7-1 is
neither responsive to the Request, nor evidence of bad faith. Absent evidence of bad
faith, we accept the averments of Rozier as true that there are no responsive records
in the possession, custody or control of PSP. See McGowan, 103 A.3d at 382-83.


                                          5
Accordingly, we affirm.




                          MICHAEL H. WOJCIK, Judge




                           6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gregory Dunbar,                     :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 1684 C.D. 2017
                                    :
                                    :
Pennsylvania State Police,          :
                                    :
                         Respondent :


                                 ORDER


           AND NOW, this 23rd day of August, 2018, the determination of the
Office of Open Records, dated October 27, 2017, is AFFIRMED.



                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
