            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darrell Reese,                               :
                       Petitioner            :
                                             :
               v.                            : No. 84 C.D. 2017
                                             : Submitted: July 14, 2017
Department of Corrections,                   :
                 Respondent                  :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: August 9, 2017


               Darrell Reese (Requester) petitions, pro se, for review of the
December 27, 2016 final determination of the Office of Open Records (OOR)
upholding the denial of his request for records from the Pennsylvania Department
of Corrections (Department) pursuant to the Pennsylvania Right-to-Know Law
(RTKL).1 We affirm.


               Requester is currently an inmate at the State Correctional Institution at
Dallas (SCI-Dallas). He submitted a RTKL request dated October 7, 2016, to the
Department’s Agency Open Records Officer (AORO) seeking a “copy of [his]

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
‘Written Judgment of Sentence Order’ which is to contain: (1) the Signature of the
Judge; (2) the Statute I was sentence [sic] under and; (3) the Statutory
Authorization which concerns Docket No. CP-51-CR-0100571-1998.” (Certified
Record (C.R.) Item 1 at 5.) In a letter dated November 14, 2016, the AORO
notified Requester that his RTKL request had been denied because the requested
records did not currently exist and that pursuant to Section 705 of the RTKL, 65
P.S. § 67.705, an agency is not required to create a record.2


              Requester then appealed to the OOR arguing that the Department
erred in stating that the requested records did not currently exist in the possession
of the Department. In response, the Department submitted an attestation signed by
Diane Yale, the Corrections Records Supervisor at SCI-Dallas, attesting in relevant
part, “If the specific records requested above were in the possession of this
Institution, they would be retained as official records in files within my custody.
After a reasonable search, no responsive records exist within my custody,
possession or control.” (C.R. Item 3 at 3.) On December 27, 2016, the OOR
issued a final determination denying Requester’s appeal, reasoning as follows:

              Under the RTKL, an affidavit may serve as sufficient
              evidentiary support for the nonexistence of records. See
              Sherry v. Radnor T[ownship] Sch[ool] Dist[rict], 20
              A.3d 515, 520-21 (Pa. C[mwlth]. 2011); Moore v. Office
              of Open Records, 992 A.2d 907, 909 (Pa. C[mwlth].
              2010). In the absence of any competent evidence that the
       2
          Section 705 of the RTKL specifically provides that “an agency shall not be required to
create a record which does not currently exist.” 65 P.S. § 67.705. See also Moore v. Office of
Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010) (holding that the Department was not
required to create a record that did not exist in order to satisfy a RTKL request).




                                               2
              Department acted in bad faith or that records exist in the
              possession of the Department, ‘the averments in [the
              affidavit] should be accepted as true.’ McGowan v. Pa.
              Dep[artment] of Env[ironmental] Prot[ection], 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, the
              Department has met its burden of proving that no
              responsive records exist in the Department’s possession,
              custody or control.


(C.R. Item 5 at 2-3.)3 Requester then appealed to this Court.4


              Requester does not challenge the OOR’s final determination
upholding the Department’s denial of his RTKL request. His brief to this Court
contains the following “Disclaimer,” which explains:

              INVOKING ALL OF THE ABOVE IT IS NOT AND
              WAS NOT THIS [REQUESTER]’S INTENTION OR
              AIM TO APPEAL THE FINDINGS OF THE
              PENNSYLVANIA          DEPARTMENT       OF
              CCORRECTIONS [sic] RIGHT-TO-KNOW LAW
              OFFICE OR THE PENNSYLVANIA OFFICE OF
              OPEN RECORDS STATING THAT THE WRITTEN
              JUDGMENT OF SENTENCE ORDER IS NOT IN
              THEIR POSSESSION[.] IT HAS ALWAYS BEEN HIS
       3
         Citing to Commonwealth v. Upshur, 924 A.2d 642 (Pa. 2007), the OOR also noted that
the requested records, if they exist, could be requested from the issuing court under the common
law right of access to judicial records.

       4
         We independently review a determination of the OOR and may substitute our own
findings of fact for that of the agency. Moore, 992 A.2d at 909 n.5 (citing Bowling v. Office of
Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010), affirmed, 75 A.3d 453 (Pa. 2013)). Moreover,
we are “entitled to the broadest scope of review.” Moore, 992 A.2d at 909 n.5 (citing Bowling,
990 A.2d at 820).




                                               3
              AIM TO CHALLENGE HIS DETENTION AND
              CONFINEMENT BEING UNCONSTITUTIONAL
              WITHOUT THIS LAWFUL DOCUMENT. . . .


(Requester’s Brief at 27.)5 Requester argues that because the Department is not
currently in possession of his sentencing order, it has no authority to detain him at
SCI-Dallas and he is serving an illegal sentence. Therefore, Requester asks this
Court to remand the matter to the Court of Common Pleas so that he can file a writ
of habeas corpus.


              This Court has held that an appeal from an OOR determination
denying a “request for access to a public record is not the proper forum to
challenge the constitutionality of [ ] continued incarceration.” Moore v. Office of
Open Records, 992 A.2d 907, 910 (Pa. Cmwlth. 2010).6 In several recent cases
almost identical to Requester’s, inmates have similarly argued that their
incarceration was illegal because the Department did not have copies of their
sentencing orders in its possession.            See, e.g., Morrison v. Department of
Corrections, ___ A.3d ___ (Pa. Cmwlth. 2017); Foster v. Pennsylvania
Department of Corrections, 159 A.3d 1020 (Pa. Cmwlth. 2017); see also Fortune
v. Department of Corrections, (Pa. Cmwlth., No. 1765 C.D. 2016, filed June 27,

       5
         Requester also specifies in his brief, “It should be duly noted that [Requester] is not
appealing the decision of the DOC RTKL office, or the PA OOR partial denial of the request for
said document, he is in fact challenging his confinement and detention.” (Requester’s Brief at
15.)

       6
         In fact, our Supreme Court has held that the exclusive state-law remedy for inmates
challenging sentences that are allegedly illegal is through the Post-Conviction Relief Act, 42
Pa.C.S. §§ 9541-9546. See Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001).




                                               4
2017); Whitaker v. Pennsylvania Department of Corrections, (Pa. Cmwlth., No.
1781 C.D. 2012, filed March 8, 2013).7 In each case, this Court affirmed the
OOR’s decision and held that the inmates were improperly attempting to use the
RTKL to collaterally attack their criminal confinement.


              Because Requester does not contest the denial of his RTKL request or
provide evidence contradicting the Department’s signed attestation, and because he
seeks relief that is beyond the purview of the RTKL, this Court has no basis upon
which to disturb the OOR’s decision.


              Accordingly, the final determination of the OOR is affirmed.




                                                 DAN PELLEGRINI, Senior Judge




       7
          Fortune and Whitaker are unreported memorandum opinions and, thus, not binding
precedent. See Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210
Pa. Code § 69.414(a). However, they are persuasive given the substantial similarities to the
current action.



                                             5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darrell Reese,                       :
                  Petitioner         :
                                     :
            v.                       : No. 84 C.D. 2017
                                     :
Department of Corrections,           :
                 Respondent          :




                                   ORDER


            AND NOW, this 9th day of August, 2017, the final determination of
the Office of Open Records in the above-captioned matter is hereby affirmed.




                                            DAN PELLEGRINI, Senior Judge
