              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrone Fortune,                                 :
                              Petitioner        :
                                                :
                       v.                       :    No. 1765 C.D. 2016
                                                :    Submitted: March 17, 2017
Department of Corrections,                      :
                        Respondent              :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: June 27, 2017


      Tyrone Fortune (Petitioner), pro se, petitions for review of the Final
Determination issued by the Office of Open Records (OOR) on October 11, 2016,
which found that no further action was required of the Pennsylvania Department of
Corrections (Department) in regard to the procurement of documents requested by
Petitioner pursuant to the Pennsylvania Right to Know Law (RTKL). 1 Petitioner
does not dispute the determination of the Department or that of the OOR, but
instead seeks to challenge the legality of his criminal confinement. (Petitioner’s
Br. at 15.) Because Petitioner does not contest the denial of his RTKL request and


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
seeks relief that is beyond the scope of a RTKL appeal, this Court has no basis
upon which to reverse the OOR’s Final Determination. Therefore, we affirm.
       Petitioner is currently an inmate at the State Correctional Institution at
Dallas (SCI-Dallas). He filed a RTKL request, dated August 10, 2016, with the
Department’s Agency Open Records Officer (AORO), seeking a copy of his
“Written Judgment of Sentence Order.”             (C.R. Item 1 at 4.)        In his request,
Petitioner noted that this document was to contain the signature of the sentencing
judge, the statute he was sentenced under, and the statutory authorization under
which his sentence was imposed. (Id.) In a letter dated August 30, 2016, the
AORO notified Petitioner that his request had been denied because the requested
records did not “currently exist in the possession of the Department.”2 (C.R. Item
1 at 3.)    Petitioner then appealed to the OOR.            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 2.) Before the OOR,
Petitioner did not submit evidence to challenge the Department’s attestation. (C.R.
Item 4 at 1.) The OOR subsequently issued a Final Determination on October 11,
2016, denying Petitioner’s appeal, finding that the Department “met its burden of



       2
          This basis for denial is permitted under Section 705 of the RTKL, 65 P.S. § 67.705,
which provides “an agency shall not be required to create a record which does not currently
exist.” 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
proving that the records requested do not exist in the Department’s possession,
custody or control.” (C.R. Item 4.) Petitioner, thereafter, appealed to this Court.3
       Petitioner makes clear that he does not appeal the Final Determination of the
OOR. Rather, he seeks to challenge the legality of his detention and confinement,
stating: “It should be duly noted that Petitioner is not appealing the decision of the
[Department] or the [] OOR den[ia]l of the requested document, he is in fact
challenging his confinement and detention.” (Petitioner’s Br. at 15.) The main
thrust of Petitioner’s argument is that if his sentencing order does not exist in the
possession of the Department, his incarceration must be illegal.4                       (Id. at 9.)
Petitioner, therefore, requests that this Court remand this matter to the Court of
Common Pleas. (Id. at 24.)
       This Court, however, has held that an appeal from an OOR determination
denying access to records 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). In two recent cases almost identical to
Petitioner’s, inmates unsuccessfully attempted to use the RTKL appeals process to
collaterally attack their criminal confinement before this Court.                     In Foster v.
Pennsylvania Department of Corrections, __ A.3d __ (Pa. Cmwlth., No. 1805 C.D.
2016, filed April 7, 2017), the incarcerated petitioner requested a copy of his


       3
          In reviewing appeals from determinations of the OOR, this Court’s standard of review
is de novo. See Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), aff’d
by 75 A.3d 453 (Pa. 2013).
        4
          In support of this argument, Petitioner cites Section 9764 (a)(8) of the Judicial Code, 42
Pa. C.S. § 9764 (a)(8), which provides: “Upon commitment of an inmate to the custody of the
Department of Corrections, the sheriff or transporting official shall provide to the institution’s
records officer or duty officer . . . [a] copy of the sentencing order and any detainers filed against
the inmate which the county has notice.”



                                                  3
“Written Judgment of Sentence Order” from the Department’s records officer.
When the records officer denied the request, the petitioner appealed to the OOR
without presenting any evidence to contradict the Department’s affidavit, which
attested that the Department did not possess the record sought by the petitioner.
The OOR denied petitioner’s appeal. The petitioner thereafter appealed to this
Court requesting a remand to the court of common pleas to file a Writ of Habeas
Corpus.    This Court affirmed the determination of the OOR, reasoning that
“[petitioner] cannot use the [RTKL] appeal as a vehicle to collaterally attack the
sentencing court’s judgment of sentence. Foster, __ A.3d at __, slip op. at 5
(citing Whitaker v. Pa. Dep’t of Corr., (Pa. Cmwlth., No. 1781 C.D. 2012, filed
March 8, 2013), slip op. at 3-4).
      Similarly, in Morrison v. Pennsylvania Department of Corrections, __ A.3d
__ (Pa. Cmwlth., No. 2002 C.D. 2016, filed May 23, 2017), slip op. at 4, on appeal
to this Court from denial of a RTKL request, the petitioner stated in his brief that it
was “‘not [his] intention or aim to appeal the findings of . . . the [OOR] . . . [.] [I]t
has always been his aim to challenge his detention.’”           This Court ruled that
“[b]ecause in this case [petitioner] does not challenge the OOR’s denial of his
appeal, but rather seeks relief outside the RTKL, this Court must affirm the OOR’s
Final Determination.” Morrison, __ A.3d at __, slip op. at 5.
      Here, like the petitioners in Foster and Morrison, Petitioner attempts to use
his RTKL appeal to collaterally attack his criminal confinement. His request to
remand to the Court of Common Pleas to challenge the legality of his incarceration
is outside the scope of a RTKL appeal. Because Petitioner neither argues that the
OOR erred in its Final Determination, nor provides evidence contradicting the




                                           4
Department’s signed attestation, Petitioner fails to provide a basis upon which this
Court might reverse the OOR’s decision.
      Accordingly, we affirm.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                          5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrone Fortune,                        :
                       Petitioner      :
                                       :
                  v.                   :   No. 1765 C.D. 2016
                                       :
Department of Corrections,             :
                        Respondent     :


                                    ORDER


     NOW, June 27, 2017, the Final Determination of the Office of Open
Records, entered in the above-captioned matter dated October 11, 2016, is
AFFIRMED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
