          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.                              :    Heard: August 28, 2017
                                               :
Pennsylvania Department of                     :
Corrections,                                   :
                       Respondent              :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge

OPINION
BY JUDGE SIMPSON                               FILED: March 23, 2018

               Before me, in the fact-finding stage, is the enforcement action filed by
Uniontown Newspapers, Inc., d/b/a The Herald Standard, through reporter Christine
Haines (Requester) seeking sanctions for the Department of Corrections’ (DOC)
violations of the Right-to-Know Law (RTKL).1 On cross-motions for summary relief,
this Court held DOC did not fully comply with the Office of Open Records’ (OOR)
final determination that ordered disclosure of all records responsive to Requester’s
RTKL request (Disclosure Order). Uniontown Newspapers, Inc. v. Dep’t of Corr.,
151 A.3d 1196 (Pa. Cmwlth. 2016) (Summary Relief Opinion). Because we could
not discern the extent of DOC’s noncompliance, and whether it amounted to bad
faith warranting sanctions, the parties developed the record. Based on the parties’
submissions, and after a hearing, I find some of DOC’s noncompliance constitutes
bad faith that merits statutory sanctions.



      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
                                         I. Background
                                          A. Overview
                On September 25, 2014, Requester sent an email seeking diagnosis data
of inmates at State Correctional Institution (SCI)-Fayette, based in part on its proximity
to a fly ash dump in Fayette County (Request).2 Jt. Ex. 3. It also sought information
comparing illnesses of SCI-Fayette inmates with inmates at other SCIs.


                Weeks before DOC received the Request, the Abolitionist Law Center
published a report, “No Escape: Exposure to Toxic Coal Waste at [SCI-] Fayette,”
correlating ill health of SCI-Fayette inmates to toxic coal waste (No Escape Report).
See Jt. Ex. 2. In response, DOC coordinated with the Department of Health (DOH)
to investigate the claims in the No Escape Report (No Escape Investigation). Then-
Director of DOC’s Bureau of Health Care Services, Christopher Oppman (Oppman),
oversaw the No Escape Investigation, which was led by Dr. Paul Noel and Dr.
Eugene Ginchereau.


                During the No Escape Investigation, DOC and DOH consulted multiple
sources of illness information. The sources included: causes of inmate deaths
(Mortality Lists); a database that tracked inmates treated for cancer (Oncology
Database); reports of inmate medications prepared by DOC’s pharmacy contractor
(Pharmacy Contractor Reports); and, records showing inmates enrolled in Chronic
Care Clinics, tracked via the PTrax database (collectively, Inmate Illness Sources).


                DOC received the Request after the No Escape Investigation was
underway. DOC assumed the Request related to the No Escape Investigation.
      2
          The Request expressly did “not see[k] identifying information,” like names. Jt. Ex. 3.

                                                 2
             After invoking a 30-day extension, DOC denied the Request in its
entirety, citing seven exceptions under Section 708(b) of the RTKL, 65 P.S.
§67.708(b), as well as the attorney-client privilege and deliberative process privilege.
DOC Open Records Officer Andrew Filkosky (Filkosky) issued the denial.


             Requester appealed to OOR. During the appeal, DOC asserted only
Section 708(b)(17), 65 P.S. §67.708(b)(17) (relating to noncriminal investigations).
In support, DOC submitted Oppman’s declaration under penalty of perjury that “the
records requested … are presently part of a noncriminal investigation that was started
by [DOC] and now includes [DOH].” Jt. Ex. 6 (2014 Oppman Verification at ¶4).
Oppman also attested: “[DOC] has generated the records [Requester] requests.” Id.
at ¶6. Chase DeFelice (DeFelice), in-house counsel for DOC, handled the appeal.


             OOR was unpersuaded that the records requested were investigative.
Thus, OOR ordered DOC to disclose “all responsive records” within 30 days. Jt.
Ex. 8 (OOR Final Determination, dated December 1, 2014). DOC did not appeal.


             On December 31, 2014, DeFelice timely disclosed 15 pages of records
to Requester (2014 Disclosure). Jt. Ex. 12. The 2014 Disclosure consisted of charts
depicting the following: the number of patients with pulmonary conditions in all
SCIs (from Chronic Care Clinic records); the number of inmates with cancer in all
SCIs (2010-13); inmate cancer deaths by institution (2010-13); inmate cancer deaths
at SCI-Fayette (2003-13); the number of inmates treated by Pharmacy Contractor
for pulmonary ailments (2010-14); and, the number of inmates treated by Pharmacy
Contractor for gastrointestinal ailments (2010-14). Id.



                                           3
             In January 2015, Requester asked DOC to verify the completeness of the
2014 Disclosure. DeFelice advised additional review was needed first “to see if other
records existed that were responsive.” DOC’s New Matter at ¶80. After undertaking
additional review, DOC disclosed a memo from Dr. Ginchereau to Dr. Noel and an
email from Dr. Noel about the No Escape Investigation. Jt. Ex. 21 at H & I.


             The next day, DOC disclosed cancer patient tracking charts from the
Oncology Database for DOC as of November 2014, and for SCI-Fayette as of January
2015. Id. at K & L (collectively with the records described immediately above, 2015
Disclosure). At that time, Oppman verified that DOC had no other records of SCI-
Fayette inmate illnesses “by type and quantity[,] and comparison of illness rates at
other [SCIs].” Id. at M (2015 Oppman Verification).


             In February 2015, within six weeks of the 2014 Disclosure, Requester
filed the instant petition for enforcement, seeking statutory sanctions for bad faith
(Petition). To obtain all responsive records, and to assess DOC’s alleged bad faith,
Requester enlisted this Court’s fact-finding function under Chapter 13 of the RTKL.


             DOC filed preliminary objections to the Petition. After this Court
overruled the preliminary objections, DOC filed an answer and new matter. Requester
then filed a motion for judgment on the pleadings, which this Court denied.


             Requester deposed Oppman and Dr. Noel in April 2016 to determine
how DOC maintained potentially responsive records, and what records remained
outstanding. Thereafter, the parties submitted cross-motions for summary relief.



                                         4
              In December 2016, this Court issued the Summary Relief Opinion. The
Summary Relief Opinion identified five types of records as responsive to the
Disclosure Order: No Escape Investigation-related records (created by investigators
such as Dr. Noel), plus the four Inmate Illness Sources consulted during the No
Escape Investigation (Mortality Lists, Pharmacy Contractor Reports, Oncology
Database, and Chronic Care Clinic records, via PTrax). The Summary Relief
Opinion also directed the parties to file a stipulation as to the disclosure status of these
five types of records.


              In 2017, the parties engaged in discovery. In March 2017, in response
to discovery requests, DOC disclosed all Mortality Lists and additional data from
the Oncology Database (2017 Disclosure). See Jt. Ex. 21 at Q & P. The parties then
filed a stipulation (Stipulation) reflecting that Pharmacy Contractor Reports and
Chronic Care Clinic records remained outstanding. See Jt. Ex. 21 at A-Q.


              In August 2017, I held a hearing, where I admitted the parties’ joint
exhibits. During the hearing, Requester presented the testimony of Michael Palm,
Executive Editor of The Herald Standard, regarding the genesis of the Request. As
to DOC’s conduct, the parties also presented the testimony of Oppman and DeFelice.
Oppman testified about his role in the No Escape Investigation, and his role in
responding to the Request. DeFelice testified about his role in gleaning responsive
records during litigation, and DOC’s attempted compliance with the Disclosure Order.
Additionally, DOC presented the testimony of Filkosky, who testified about his role
as Open Records Officer handling the Request during the request stage.




                                             5
              In October 2017, the parties submitted proposed findings of fact and
conclusions of law. The matter is now ready for disposition.


                                     B. Findings
              I credit the testimony of the witnesses based on their demeanor and their
responsiveness. To the extent their testimony is inconsistent, I consider Oppman’s
testimony most persuasive based on the quality of his recollection and his directness.
Oppman also had the most familiarity with the records requested. In weighing his
trial testimony, I also considered his deposition testimony and his two verifications.
Based on the credited evidence and admissions, I make the following narrative findings.


                             1. No Escape Investigation
              The purpose of the No Escape Investigation was to evaluate the No
Escape Report’s allegations about SCI-Fayette inmates’ ill health, which focused on
cancer, pulmonary, and gastrointestinal diseases. During the No Escape Investigation,
Oppman served as the liaison to DOH. He also conferred with physicians like Dr.
Noel, who made clinical findings based on their review of inmate medical files and
the four Inmate Illness Sources.


              Of the Inmate Illness Sources, DOC had direct access to Mortality Lists,
the Oncology Database, and Chronic Care Clinic records, but not to medication data
maintained by Pharmacy Contractor. As part of the No Escape Investigation, DOC
asked Pharmacy Contractor to prepare reports of inmate medications corresponding
to pulmonary and gastrointestinal ailments. DOC did not request reports relating to
other illnesses.



                                           6
              In reviewing Chronic Care Clinic records, investigators consulted the
online database, PTrax, which tracked inmate treatment in each of DOC’s 13 clinics.3
Of significance, PTrax is a “live” database that changes daily. Notes of Testimony
(N.T.), 8/28/17, at 58. At a minimum, PTrax shows the number of inmates enrolled
in a specific clinic at a specific time. However, a clinic may encompass multiple
diagnoses, e.g., the pulmonary clinic treats conditions ranging from asthma to lung
disease. Id. at 33. The No Escape Investigation focused on the pulmonary clinic.


              Based on the Inmate Illness Sources and DOC’s clinical review of
inmate medical files, DOH reported its findings. Jt. Ex. 21 at N (DOH Report,
12/29/14). Because it was created subsequent to the Request, the DOH Report was
not a responsive record subject to OOR’s Disclosure Order. Nonetheless, DOC sent
the DOH Report to Requester after it initiated enforcement proceedings.


                              2. Request & RTKL Process
              The Request sought data of inmates’ diagnoses, by type of illness and
the number of inmates afflicted, at SCI-Fayette and other SCIs. The Request was
not limited to certain illnesses; however, Requester noted a “particular interes[t]” in
cancer or respiratory ailments. Jt. Ex. 3. Relevant here, the Request did not reference
either the No Escape Report or the No Escape Investigation. Nevertheless, “[DOC]
assumed … [Requester] w[as] looking for” the results of the No Escape Investigation.
N.T. at 50. Other than timing, DOC had no reason to believe the Request related to
the No Escape Investigation.


       3
         DOC’s chronic care clinics correspond to the following chronic conditions: HIV/AIDS;
cardiovascular; tuberculosis; endocrine; dialysis; diabetes; hypertension; pulmonary; seizure;
infectious disease; neurology; psychiatry; and, nephrology. Jt. Ex. 21, Stip. at III(A)(2).

                                              7
                                       a. Request Stage
               Generally, when DOC receives a RTKL request, the open records officer
or legal liaison sends an internal email identifying custodians of potentially
responsive records, including appropriate instructions for responding. Jt. Ex. 19
(Policy). When a record custodian receives the request, “there must be no disposal
of potentially responsive records (no deletion of partially responsive e-mails, etc.),
… notice of the RTKL request should be considered the equivalent of a litigation
hold.” Jt. Ex. 1 (RTKL Procedures,4 2/2/12) (bold in original); see N.T. at 78.


               Record custodians are required to deliver responsive records to an open
records officer “as soon as possible to allow adequate time for review and redaction
and for the legal bases for redactions and other denials to be incorporated into the final
response letter.” Jt. Ex. 19, Policy, Part IV(E). The open records officer must retain
all potentially responsive records obtained from the custodian “until further notice”
regardless of a record retention schedule permitting disposal. Id. at Part IV(K)(19).


               At all relevant times, Filkosky served as DOC’s Open Records Officer,
and Maria Macus Bryan, Esquire, served as legal liaison.


               Here, Filkosky read the Request. After identifying DOC’s Bureau of
Health Care Services (Health Care Bureau) as the custodian of potentially responsive

       4
          Filkosky testified he was governed by the Policy (Jt. Ex. 19); however, he disclaimed any
knowledge of the RTKL Procedures (Jt. Ex. 1). Notes of Testimony (N.T.), 8/28/17, at 129. DOC’s
legal liaison produced the RTKL Procedures in discovery when asked for a copy of DOC’s
“process” for responding to RTKL requests. Id. Thus, I infer that the RTKL Procedures govern
the legal liaison and record custodians, whereas the Policy governs the open records officer.




                                                8
records, Filkosky merely forwarded the Request by email, without any instructions.
The Health Care Bureau did not respond in writing. Rather, one of its representatives,
Cathy Montag,5 advised Filkosky in person that DOC and DOH were involved in
the No Escape Investigation and that all responsive records related to the No Escape
Investigation.    Based solely on her representation, Filkosky concluded that all
responsive records would be related to the No Escape “[I]nvestigation, other than
inmates’ medical files.” N.T. at 128.


              Significantly, Filkosky did not receive any potentially responsive
records from DOC’s Health Care Bureau. N.T. at 128. Without understanding the
records involved, he relied on DOC’s Health Care Bureau’s assessment that any
responsive records related to the No Escape Investigation. Filkosky also did not
discern what records were allegedly investigative either to document their content
or to assess any exemptions. N.T. at 135. Filkosky issued DOC’s denial under
Section 903 of the RTKL without reviewing any records. N.T. at 128.


              Accordingly, DOC did not perform its duties during the request stage
in several material respects. In short, DOC neglected to: perform a good faith search;
obtain records from sources consulted during the No Escape Investigation; review
all potentially responsive records; and, assess the content of responsive records
before withholding access.



       5
         Oppman testified about his interactions with DeFelice, who became involved during the
appeal stage. N.T. at 46. Oppman did not mention Filkosky. Filkosky interacted with Cathy
Montag from the Bureau of Health Care Services that Oppman directed at the time. N.T. at 127.
Filkosky did not mention Oppman. I infer from the testimony that Oppman was not directly
involved in responding to the Request during the request stage.

                                              9
                                  b. Appeal Stage
             DeFelice handled the appeal before OOR. DeFelice gave Oppman the
Request, asking him to pull information from the No Escape Investigation. N.T. at
46. Based on his familiarity with inmate health records, Oppman was the person “in
the best position to respond to [the Request].” Id. at 41.


             Before the Request, Oppman responded to few RTKL requests; he
received no RTKL training. N.T. at 29. Oppman confirmed that no one at DOC’s
Health Care Bureau searched for records in response to the Request. Id. at 50. Instead,
DOC presumed the Request related to the No Escape Investigation. Id. Notably,
however, Oppman did not believe Requester was aware of the No Escape
Investigation. Id. at 42.


             During the appeal stage, DeFelice did not discern what information was
consulted during the No Escape Investigation to assess its investigative content. Id.
at 93-94. DeFelice was also unfamiliar with how the Health Care Bureau maintained
responsive records when he prepared a verification for Oppman’s signature (2014
Oppman Verification) to establish all responsive records related to the No Escape
Investigation.


             The 2014 Oppman Verification was the only evidence DOC submitted
to OOR during the appeal stage, and it pertained only to the noncriminal
investigation exception. Therein, Oppman attested that DOC generated records as
part of the No Escape Investigation. Jt. Ex. 6. However, Oppman clarified during
the hearing that the term “generated,” in context, also referred to the four types of



                                          10
records consulted during the No Escape Investigation (Inmate Illness Sources),
which existed independently. N.T. at 44. The Inmate Illness Sources were not
themselves investigative in nature.


             Ultimately, OOR deemed the 2014 Oppman Verification insufficient,
and it determined “all responsive records” to the Request were public. Jt. Ex. 8 (Final
Determination at 9). As a result, information contained in the Inmate Illness Sources,
and records DOC generated during the No Escape Investigation that included inmate
illness data, were subject to mandatory disclosure within 30 days. Id.


                                   c. Post-Appeal
             In the 2014 Disclosure, DOC timely disclosed five charts consisting of
some information contained in the Inmate Illness Sources. However, although the
Request was not limited to specific diseases, the 2014 Disclosure was limited to two
illness types (cancer and pulmonary conditions), except that the Pharmacy
Contractor Reports also included gastrointestinal ailments.        Further, the 2014
Disclosure did not include information contained in the Oncology Database, which
showed the number of inmates treated for cancer. N.T. at 94.


             Requester challenged the completeness of the 2014 Disclosure, and it
asked DeFelice to confirm that no other responsive records existed. In particular,
Requester emphasized the press release regarding the No Escape Investigation
results revealed DOC’s Health Care Bureau “maintain[ed] an extensive database of
all current cancer patients in [SCIs].” Jt. Ex. 13. However, DOC did not disclose any
data from the Oncology Database to Requester. N.T. at 94 (DOC “admitted that [the



                                          11
Oncology Database] was not provided on December 31st … because [DeFelice] didn’t
have it.”).


              A week after the deadline for compliance with the Disclosure Order
passed, DeFelice was uncertain whether DOC performed a thorough search for all
responsive records. See DOC’s New Matter at ¶80. Only then did DeFelice search
Dr. Noel’s files. At that time, he discovered records showing data from the Oncology
Database. N.T. at 94. He also discovered the memo from Dr. Ginchereau and an
email from Dr. Noel, which were also responsive to the Request. These three records
were disclosed to Requester in January 2015, and comprised the 2015 Disclosure.


              After this additional search, DOC confirmed there were no additional
responsive records in the 2015 Oppman Verification. However, this verification was
inaccurate in that it did not account for responsive records related to all illnesses.
Because DOC only disclosed records related to cancer and pulmonary disease, the
2015 Disclosure was incomplete.


                               d. Enforcement Stage
              Believing more responsive records existed, Requester filed its Petition.
As further explained in the Summary Relief Opinion, “all responsive records”
includes the four Inmate Illness Sources that pre-existed the No Escape
Investigation. The Inmate Illness Sources are not limited to cancer, pulmonary, and
gastrointestinal ailments. The Request, both on its face and as construed by OOR,
was not so limited. Therefore, DOC did not comply with the Disclosure Order.




                                          12
             Prior to the enforcement stage, DOC recognized that Mortality Lists, the
Oncology Database, Chronic Care Clinic records, and Pharmacy Contractor Reports
were responsive to the Request. When this Court confirmed in the Summary Relief
Opinion that such records were responsive without limitation on illness type, DOC
still withheld responsive records.


             DOC did not disclose the entire Oncology Database until the parties
engaged in discovery in March 2017. It also withheld all Mortality Lists until it
provided the 2017 Disclosure. DOC did not explain this delay.


             As of June 2017, DOC did not determine whether Pharmacy Contractor
could generate inmate medication reports corresponding to diseases other than
pulmonary and gastrointestinal. DOC did not ask Pharmacy Contractor for such
inmate medication reports.


             Also, DOC did not obtain or disclose Chronic Care Clinic records,
through PTrax or otherwise, that corresponded to diseases other than pulmonary.
There are 12 other clinics, the data from which would show the number of inmates
treated for certain conditions at a given time. N.T. at 34.


             To date, DOC did not disclose “all responsive records.”


                          II. Bad Faith under the RTKL
             The core purpose of the RTKL is ensuring access to agency records.
The RTKL “is remedial legislation designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public

                                          13
officials, and make public officials accountable for their actions ….” Bowling v.
Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010) (en banc), aff’d, 75
A.3d 453 (Pa. 2013); Office of Dist. Att’y of Phila. v. Bagwell (Phila. DA), 155 A.3d
1119, 1130 (Pa. Cmwlth. 2017) (“the RTKL is remedial in nature … ”).


             In the RTKL context, “bad faith” does not require a showing of fraud
or corruption. The lack of good faith compliance with the RTKL and an abnegation
of mandatory duties under its provisions rise to the level of bad faith. Phila. DA
(affirming trial court’s award of $500 civil penalty for bad faith); Chambersburg Area
Sch. Dist. v. Dorsey, 97 A.3d 1281 (Pa. Cmwlth. 2014) (agency failure to review
responsive records was grounds from which fact-finder could discern bad faith);
Staub v. City of Wilkes-Barre & LAG Towing, Inc. (Pa. Cmwlth., No. 2140 C.D.
2012, filed October 3, 2013), 2013 WL 5520705 (unreported) (affirming attorney
fee award for agency failure to confer with contractor before responding to request).
The RTKL reserves bad faith determinations for disposition by Chapter 13 Courts.
Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).


             The RTKL requires an agency to make a good faith effort to find and
obtain responsive records before denying access. Dorsey. “[A]n agency [may not]
avoid disclosing existing public records by claiming, in the absence of a detailed
search, that it does not know where the documents are.” Pa. State Police v. McGill,
83 A.3d 476, 481 (Pa. Cmwlth. 2014) (emphasis added). Where an agency did not
perform a search of its records under the RTKL until the matter was in litigation, the
agency denied access in willful disregard of the public’s right to public records.
Parsons v. Pa. Higher Educ. Assist. Agency (PHEAA), 910 A.2d 177 (Pa. Cmwlth.)



                                         14
(en banc), appeal denied, 917 A.2d 316 (Pa. 2006) (agency failure to review records
before a hearing on denial showed willful violation of former Right-to-Know Law).6


              A requester bears the burden of proving an agency committed bad faith.
Uniontown Newspapers. Evidence of bad faith is required. Barkeyville Borough v.
Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012). After-discovered records are a type of
evidence from which a court may discern bad faith. Dorsey. Evidence of an
agency’s failure to perform its mandatory duties, including a failure to search its
records prior to a denial of access, may suffice. Dorsey; accord PHEAA.


                                 A. Bad Faith Allegations
              Requester claims three grounds for DOC’s bad faith under the RTKL:
(1) narrow construction of the Request; (2) failure to search records in good faith as
required by the RTKL; and, (3) noncompliance with OOR’s Disclosure Order.




                                1. Construction of the Request
              As the Request did not mention the No Escape Investigation or the No
Escape Report, DOC had no apparent basis, other than coincidental timing, for
assuming the Request sought only records related to the No Escape Investigation.
N.T. at 42. However, Requester did not show that DOC’s error in construction rose
to the level of bad faith.



       6
         Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§66.1-66.9, repealed by, Section
3102(2)(ii) of the RTKL, 65 P.S. §67.3102(2)(ii).



                                             15
               Requester submitted no evidence that it communicated with DOC
during the request or appeal stages about the parameters of the Request.7 Filkosky,
who forwarded the Request to DOC’s Health Care Bureau, “didn’t interpret the
[R]equest.” N.T. at 141. He accepted the Health Care Bureau’s assertions that the
Request related to the No Escape Investigation without question.


               Nevertheless, in these circumstances, the evidence manifests no attempt
to construe the Request in any particular manner. Thus, the construction of the
Request alone does not evince bad faith. The primary problem revealed during the
hearing was that DOC did not give any specific, separate consideration to the
Request at all.


                              2. Noncompliance with RTKL
                           a. Request Stage - Good Faith Search
               Chapter 9 of the RTKL sets forth an agency’s mandatory duties during
the request stage. 65 P.S. §§67.901-.905. Section 901 of the RTKL

               mandate[s] that ‘[u]pon 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.

Phila. DA, 155 A.3d at 1130 (italics in original; bold and underline added).


       7
         Moreover, while agencies are encouraged to contact requesters to assess the parameters
of a RTKL request during the request stage, and to resolve access disputes without litigation, such
communications must be documented to ensure there is a consistent record for subsequent
reviewers in case the attempt to avoid litigation is unsuccessful.

                                                16
             Upon receipt of a request, an open records officer “must make a good
faith effort to determine whether: (1) the record is a public record; and, (2) the record
is in the possession, custody, or control of the agency.” Breslin v. Dickinson Twp.,
68 A.3d 49, 54 (Pa. Cmwlth. 2013) (citing Barkeyville Borough, 35 A.3d at 96).
Section 901 also includes the duty to perform a reasonable search for records in good
faith. Dep’t of Labor & Indus. v. Earley, 126 A.3d 355 (Pa. Cmwlth. 2015). As part
of a good faith search, the open records officer has a duty to advise all custodians of
potentially responsive records about the request, and to obtain all potentially
responsive records from those in possession. Breslin.


             When records are not in an agency’s physical possession, an open
records officer has a duty to contact agents within its control, including third-party
contractors. Breslin; Staub. Under Section 506(d) of the RTKL, 65 P.S. §67.506(d),
“the agency is required to take reasonable steps to secure the records from the
[contractor] and then make a determination if those records are exempt from
disclosure.” Staub, slip op. at 6, 2013 WL 5520705 at *2.


             After obtaining all potentially responsive records, an agency has the
duty to review the records and assess their public nature under Sections 901 and 903
of the RTKL. Breslin; PHEAA. It is axiomatic that an agency cannot discern whether
a record is public or exempt without first obtaining and reviewing the record.


             Here, DOC did not make a good faith effort to determine whether it had
possession or control of responsive records upon receipt of the Request. Critically,
it did not perform any search for records in response to the Request. N.T. at 48, 83.



                                           17
             DOC’s failure to search records in its possession for responsive records
during the request stage constitutes bad faith. Dorsey (remand to trial court to assess
bad faith when agency discovered 3,500+ pages of records after the appeal stage).
Like the agency in Dorsey, DOC did not learn about responsive records until well
into the litigation. An agency’s failure to locate responsive records until motivated
by litigation evinces bad faith, meriting consideration by a fact-finder. Id.


             Presuming DOC believed that the Request sought only records related
to the No Escape Investigation, DOC breached its duty to obtain all potentially
responsive records from its Health Care Bureau and all other records custodians
upon receipt of the Request. Like the agency in Staub, DOC did not contact
Pharmacy Contractor to obtain potentially responsive records during the request
stage.


             Here, DOC did not attempt to discern what records purportedly related
to the No Escape Investigation until the appeal stage. DOC did not document the
sources of potentially responsive records, such as the four Inmate Illness Sources.
As a result, DOC was unaware what records its Health Care Bureau deemed
responsive, and yet investigative. Without obtaining or reviewing any records,
DOC denied access to responsive public records. DOC’s failure to comply with
Section 901 prior to issuing its “denial” under Section 903 constitutes bad faith.
PHEAA.


             DOC also did not preserve all potentially responsive records during the
request stage. N.T. at 130-36. During the hearing, DOC admitted that information in



                                          18
the Inmate Illness Sources was responsive to the Request. N.T. at 44-45. Other than
data corresponding to the pulmonary clinic, id. at 35, DOC did not preserve any PTrax
records showing the number of inmates admitted in each clinic as of the date of the
Request.


             However, I do not find that DOC’s failure to “freeze” or hold the live-
updating PTrax database for the Chronic Care Clinics amounted to bad faith.
Primarily, I view DOC’s RTKL Procedures as precluding knowing disposal of
potentially responsive records, such as deleting emails or subjecting records to a
predictable, periodic purge consistent with an agency-wide records retention policy.
Here, I am not persuaded that there was a knowing decision regarding the PTrax
database, which may change daily. Moreover, I am not persuaded that it is appropriate
to expect an instantaneous litigation hold on specialized records of this type. Rather,
an agency must be afforded a reasonable amount of time to set in place a litigation
hold; a few hours is not a reasonable amount of time under these circumstances.


                              b. Appeal Stage - OOR
             Before OOR, DOC represented that it possessed responsive records, but
that those records “related to the [No Escape] Investigation.” Jt. Ex. 6 (2014 Oppman
Verification). Although he prepared the 2014 Verification for Oppman’s signature,
DeFelice did not understand what documents purportedly related to the No Escape
Investigation. The 2014 Oppman Verification did not describe the records to which
it pertained. Further, there is no evidence that DOC reviewed potentially responsive
records before litigating their investigative nature before OOR.




                                          19
             DOC’s submissions to OOR representing that records were exempt,
without reviewing the records, is not sustainable. At a minimum, during the appeal
stage, DOC should have assessed what potentially responsive records were kept
where, and reviewed those records before submitting verifications to OOR attesting
to their content or completeness. By contesting access during the appeal, without
obtaining all records and assessing the records’ public nature, DOC acted in bad faith.


                    3. Noncompliance with Disclosure Order
             As to noncompliance with OOR’s Disclosure Order, DOC bore the
burden to prove it provided “all responsive records.” Accord Earley (agency must
show it reasonably searched records to establish nonexistence of responsive records).
DOC did not meet this burden.


             DOC was delinquent in waiting until after the date for compliance with
the Disclosure Order passed to confirm whether it performed a comprehensive search
for all potentially responsive records. DOC’s New Matter at ¶80. At that point, it
discovered additional records in the Oncology Database.            Thus, even when
misconstruing the Request as limited to cancer and pulmonary disease, DOC still did
not compile all responsive records within 30 days of the Disclosure Order.


             As explained above, all of the data of inmate illnesses contained in the
four Inmate Illness Sources were responsive to the Request. This Court’s Summary
Relief Opinion confirmed that the data subject to disclosure under the Disclosure
Order were not limited by type of illness (cancer, pulmonary or gastrointestinal
ailments). Also, this Court noted any records “DOC created … prior to the Request



                                          20
date from its review of inmate medical files when conducting the [No Escape]
Investigation … are responsive,” as well as emails. Summ. Relief Op. at 16, n.7 & 8;
151 A.3d at 1207, n.7 & 8. Yet, DOC did not compile “all responsive records” as this
Court explained the phrase in 2016.


             Notwithstanding our Summary Relief Opinion, DOC did not disclose
all Mortality Lists and the Oncology Database until months later. Jt. Ex. 21, Stip. at
II(4). Indeed, as of March 2017, DOC had not determined the accessibility of inmate
medication records from Pharmacy Contractor for conditions other than pulmonary
and gastrointestinal diseases. It did not assess Pharmacy Contractor’s reporting
capabilities until June 2017. See Jt. Ex. 18 (Affidavit).


             Almost three years after receiving the Request, DOC contacted
Pharmacy Contractor to obtain potentially responsive records. DOC then learned
that Pharmacy Contractor prepared the Reports at its request, extrapolating from raw
dispensing data and synthesizing the data into a useful format for comparison. Id.
Records from Pharmacy Contractor showing inmate medications for other than
pulmonary and gastrointestinal ailments, in whatever form such information exists,
remain outstanding.


             In sum, DOC violated the Disclosure Order when it did not disclose “all
responsive records” within 30 days. DOC’s violation evinced a lack of good faith
when DOC did not discern the sources of or review all potentially responsive records




                                         21
before the compliance deadline.8 Also, because of DOC’s failure to preserve all
potentially responsive records, certain Chronic Care Clinic records are no longer
available. Due to the nature of PTrax, this cannot be cured by late disclosure.


             Enforcement proceedings should not be necessary to ensure an
agency’s compliance with its statutory duties. DOC’s delay in complying with the
Disclosure Order was unreasonable. Once this Court issued the Summary Relief
Opinion, there was no excuse for further delay. Yet, DOC forced Requester to
expend time and resources to discern what responsive records remained undisclosed.
Under these circumstances, DOC’s persistent denial of access constitutes bad faith.


                                        B. Relief
                         1. Undisclosed Responsive Records
             To avoid further confusion, DOC is ordered to disclose “all responsive
records” to Requester within 20 days.9 “All responsive records” include the Inmate
Illness Sources consulted in the No Escape Investigation, but without limitation as
to illness type, as well as No Escape Investigation-related records investigators (such
as Dr. Noel) created before DOC received the Request.


             DOC has not verified the completeness of its disclosures to date to
conform to the evidence and findings by this Court. As part of its compliance
obligations, DOC is ordered to do so.
      8
        This was after the 30-day appeal period in Section 1301(a) of the RTKL, 65 P.S.
§67.1301(a), expired. As a result, Requester could not appeal the alleged incompleteness of
DOC’s 2014 Disclosure.

      9
         This 20-day timeframe does not apply to records of Pharmacy Contractor as further
explained below.


                                            22
             As to Pharmacy Contractor Reports, DOC has the duty to obtain
information corresponding to inmate medications in the form in which Pharmacy
Contractor maintains it. Staub. Pulling information from a database is not creating
a record. Dep’t of Envtl. Prot. v. Cole, 52 A.3d 541 (Pa. Cmwlth. 2012).


             However, DOC is not required to compile the information Pharmacy
Contractor provides in any specific format, including the format Pharmacy
Contractor specially-created as to pulmonary and gastrointestinal diseases, already
timely disclosed to Requester. Such formatting would amount to creation of a record
under Section 705 of the RTKL, 65 P.S. §67.705.


             Pharmacy Contractor attested it provides innumerable reports for DOC.
Jt. Ex. 18 at ¶10. Although none state specific diagnoses, reports that “document
the number of patients being treated with a particular Therapeutic class of drug” are
within the scope of the Request. Id. at ¶11. Accordingly, DOC shall obtain and
disclose records of inmate medications within 30 days, accompanied by a detailed
affidavit explaining its attempt to obtain these records from Pharmacy Contractor.


             As to PTrax, I find that information in PTrax as it existed on the day of
the Request is no longer recoverable. See N.T. 58; see also Jt. Ex. 21, Stip. III(A).
To ensure the most complete information is made available, DOC shall describe the
type of Chronic Care Clinic records reviewed during the No Escape Investigation,
and confirm whether information showing the number of inmates with chronic
illnesses, other than pulmonary, remains available. DOC shall disclose such records,
accompanied by an affidavit verifying their completeness, within 20 days.



                                         23
                                         2. Sanctions
              In its Petition, Requester sought civil penalties under Section 1305(a)
of the RTKL, 65 P.S. §67.1305(a).10 Section 1305(a) provides: “A court may
impose a civil penalty of not more than $1,500 if an agency denied access to a public
record in bad faith.” Id. (emphasis added).


              “[T]he purpose of Section 1305 of the RTKL is … to penalize conduct
of [an] agency and to provide a deterrent in the form of a monetary penalty in order
to prevent acts taken in bad faith in the future.” Phila. DA, 155 A.3d at 1141
(affirming $500 penalty). “Section 1305 of the RTKL is directed wholly to the
agency charged with a mandatory duty under the RTKL to provide requesters access
to public records within the agency’s custody and control.” Id. at 1140.


              The RTKL vests Chapter 13 Courts with jurisdiction to assess whether
an “agency withheld requested records willfully, wantonly, or unreasonably.”
Bowling, 75 A.3d at 470. Accordingly, this Court has the authority to assess a
Commonwealth agency’s compliance with the RTKL, and to impose statutory
sanctions, including civil penalties. Phila. DA.


              The current record supports civil penalties. Because the statute caps the
penalty amount, and there is evidence demonstrating DOC’s bad faith, it is
unnecessary to hold a hearing as to the amount of penalties. Phila. DA.



       10
         In the fact-finding phase, Requester also sought penalties in the amount of $500 per day
under Section 1305(b) of the RTKL, 65 P.S. §67.1305(b), for DOC’s noncompliance with the
Disclosure Order. Such penalties are reserved for noncompliance with a court order.

                                               24
             Here, the maximum statutory civil penalty is warranted based on
DOC’s noncompliance throughout the RTKL process, as described above. The
amount corresponds to the degree of noncompliance, and the repercussions of that
noncompliance.


             The evidence shows DOC did not conduct a thorough search for
responsive records until after the appeals process concluded. Only after the deadline
to appeal the Disclosure Order expired did DOC attest that it provided all responsive
records in the 2015 Oppman Verification. Moreover, the 2015 Oppman Verification
was inaccurate because DOC still did not disclose data for all inmate illnesses.


             The duration that DOC withheld public records also weighs in favor of
imposing the maximum civil penalty. DOC received the Request in September 2014.
DOC made piecemeal, incomplete disclosures in 2014, 2015, and 2017. The 2014
and 2015 Disclosures were limited to cancer, pulmonary disease, and gastrointestinal
disease, and excluded some cancer records as DOC withheld the Oncology Database.


             In December 2016, this Court confirmed that “all responsive records”
subject to the Disclosure Order included No Escape Investigation-related records
and the four Inmate Illness Sources (Mortality Lists, Oncology Database, Pharmacy
Contractor Reports, and PTrax) without limitation as to type of illness. Summ.
Relief Op. Yet, DOC continued to withhold responsive records, and to limit them
by illness type.




                                         25
             Although DOC identified additional records in discovery, the 2017
Disclosure was again incomplete. DOC has not complied with the Disclosure Order
to date. Thus, DOC delayed access to public records for three years.


             I award the maximum penalty to deter DOC and other agencies from
disregarding their statutory duties under the RTKL. Ultimately, DOC’s failure to
perform the steps required upon receiving the Request precluded access to public
records. It also resulted in years of litigation to obtain responsive records that DOC
should have assessed and reviewed upon receipt of the Request.


                                  III. Conclusion
             For the foregoing reasons, I conclude DOC committed bad faith so as
to warrant statutory penalties in the maximum amount of $1,500 pursuant to Section
1305(a) of the RTKL, 65 P.S. §67.1305(a).


             In the event Requester intends to pursue its request for attorney fees,
under either the RTKL or another statute, it shall so advise the Court in writing
within thirty (30) days. Requester shall also submit documentation for its claim at
that time.



                                       ROBERT SIMPSON, Judge




                                         26
           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 23rd day of March, 2018, after hearing and upon
review of the parties’ submissions, the Pennsylvania Department of Corrections
(DOC) is ORDERED to DISCLOSE to Uniontown Newspapers, Inc., d/b/a The
Herald Standard, through reporter Christine Haines (Requester), ANY and ALL
RESPONSIVE RECORDS, not previously disclosed, without limitation as to illness
type, contained in the following sources as described in the foregoing opinion:
Mortality Lists; the Oncology Database; and Chronic Care Clinic records (including
PTrax) as of the closest date to the request date, that remain recoverable. DOC
SHALL DISCLOSE these records to Requester no later than twenty (20) days
from the date of this Order. Failure to comply with this court-ordered disclosure
may subject DOC to penalties up to $500 per day pursuant to Section 1305(b) of the
Right-to-Know Law (RTKL),11 65 P.S. §67.1305(b).




      11
           Act of February 14, 2008, P.L. 6.
             Within twenty (20) days, DOC SHALL SUBMIT sworn statement(s)
by individuals with personal knowledge attesting to the completeness of the above-
ordered disclosure, including the availability of Chronic Care Clinic records through
PTrax or otherwise.


             As to inmate medication information, DOC SHALL OBTAIN and
DISCLOSE records from its pharmaceutical contractor (Pharmacy Contractor)
showing the number of inmates on therapeutic classes of medications, unlimited as
to disease type, within thirty (30) days. Inmate medication information SHALL
BE OBTAINED in the format in which it exists, without reformatting or
extrapolation; however, inmate identifiers, including names, shall be redacted or
otherwise removed prior to disclosure. Pharmacy Contractor IS NOT REQUIRED
to convert inmate medication information into the same format as the previously
disclosed Pharmacy Contractor Reports (relating to pulmonary and gastrointestinal
diseases). The inmate medication information disclosure shall be accompanied by
sworn statements by persons with knowledge as to Pharmacy Contractor’s records,
including the compilation process. In the event DOC does not obtain responsive
records from Pharmacy Contractor within the prescribed timeframe, DOC SHALL
SUBMIT sworn statement(s) detailing its efforts to obtain the information,
unlimited as to disease type, from Pharmacy Contractor within thirty (30) days,
including when the records are anticipated.


             AND, Requester’s request for civil penalties under Section 1305(a) of
the RTKL, 65 P.S. §67.1305(a), is GRANTED. The maximum civil penalty in the
amount of $1,500 is imposed against DOC and in favor of Requester. Counsel
SHALL FILE a verified statement of the payment within thirty (30) days.


             AND FURTHER, as to Requester’s request for attorney fees, within
thirty (30) days, Requester SHALL ADVISE the Court in writing of its intent to
pursue attorney fees, and also SUBMIT any documentation upon which it will rely.
Thereafter, this Court may issue a briefing schedule and/or schedule a hearing.




                                       _______________________
                                       ROBERT SIMPSON, Judge
