             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ruben M. Collazo,                                :
                        Petitioner               :
                                                 :
                v.                               :
                                                 :
Pennsylvania Gaming Control Board,               :   No. 244 C.D. 2018
                 Respondent                      :   Submitted: September 14, 2018



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                           FILED: December 28, 2018


                Ruben M. Collazo (Collazo) petitions, pro se, for review of the January
24, 2018 final determination issued by the Office of Open Records (OOR) pursuant
to the Right-to-Know Law (RTKL),1 affirming the decision of the Pennsylvania
Gaming Control Board (Board) to deny Collazo’s request for records. The OOR
upheld the Board’s decision to deny Collazo’s request because the records sought
do not exist within the Board’s possession, custody and control. Upon review,2 we
affirm.
                On November 1, 2017, the Board received a RTKL request from
Collazo seeking “documents and policy [sic] of the [Board] . . . and the scope of [its]
operations in exercising complete control [of] casinos and gaming.” Reproduced


       1
           Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
       2
           When hearing appeals from final determinations issued by the OOR, 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). When appropriate, this Court may adopt the findings and legal conclusions
set forth in a final determination issued by the OOR. Id. at 474.
Record (R.R.) at 9a. The request also included 3 pages of 16 “[q]uestions involved.”
Id. at 10a-12a. After taking a 30-day extension to respond, on December 8, 2017,
the Board notified Collazo that his request was “[d]enied.” Id. at 13a. The Board
explained:


             There are no documents or policies of the [Board] that
             exercise “complete control” over gaming in the
             Commonwealth of Pennsylvania. On the contrary, the
             [Board] is a regulatory agency monitoring and regulating
             casino gaming, which is legal in Pennsylvania and
             conducted by private and publicly traded companies, so as
             to assure those companies comply with the law.
Id.
             Collazo appealed the Board’s decision to the OOR and, in his appeal,
asserted, in part, that the records he requested “are in the possession, custody or
control of the agency.” Id. at 15a. Collazo further objected to the denial, explaining
that he seeks “those policy documents which will clarify and address the convoluted
relationship that exists . . . between state actors and privately owned and publicly
traded companies.” Id. at 17a. Upon receipt of Collazo’s appeal, the OOR invited
the parties to supplement the record and to submit legal argument to support their
positions, and it directed the Board to notify any third parties of their ability to
participate in the appeal. Id. at 18a-19a. In response to the OOR’s request, the Board
submitted its legal argument with an affidavit executed by the Board’s Deputy Chief
Counsel, Stephen Cook, id. at 28a-33a, and Collazo submitted his argument. Id. at
34a-37a.
             In its final determination, the OOR first dismissed part of Collazo’s
appeal because Collazo attempted to modify the record request before the OOR by
seeking “policy documents which will clarify and address the convoluted
                                  2
relationship that exists . . . between state actors and privately owned and publicly
traded companies” when his initial request to the Board sought documents and
policies of the Board regarding “the scope of [its] operations in exercising complete
control [over] casinos and gaming.” Id. at 5a-6a. This Court agrees that Collazo
attempted to modify his record request before the OOR by changing the records
requested, and the OOR did not err in refusing to address the altered request.3 When
seeking public records, Section 703 of the RTKL, 65 P.S. § 67.703, provides that a
requester must file a “written request [which] should identify or describe the records
sought with sufficient specificity to enable the agency to ascertain which records are
being requested . . . .” At that point, the request is fixed and the requester cannot
change the nature of his request. Dep’t of Corr. v. Disability Rights Network of Pa.,
35 A.3d 830, 833 (Pa. Cmwlth. 2012).
               Second, the OOR dismissed part of Collazo’s request because he listed
16 questions and the OOR is without authority to refashion the questions into a
request for records. R.R. at 6a-7a. The OOR, in its final determination, properly
concluded that a list of questions is not a record request and cannot be refashioned
as such when it dismissed this part of Collazo’s request. See Pa. Tpk. Comm’n v.
Murphy, 25 A.3d 1294 (Pa. Cmwlth. 2011) (affirming OOR denial of appeal
including that questions do not trigger a response under the RTKL); Pa. State Police
v. Office of Open Records, 995 A.2d 515, 516 (Pa. Cmwlth. 2010) (explaining that
the General Assembly did not, in the RTKL, empower the OOR to refashion the


       3
         Likewise, to the extent Collazo attempts to do the same here, see infra note 5, this Court
will not address Collazo’s attempt when this Court’s function is to review the OOR’s final
determination.


                                                3
record request); see also Gingrich v. Pa. Game Comm’n (Pa. Cmwlth. No. 1254 C.D.
2011, filed January 12, 2012) slip op. at 6.4
                Third, the OOR denied Collazo’s request for “documents or policies of
the [Board]” that “exercise complete control over gaming” in Pennsylvania because
the Board demonstrated, through the averments in the affidavit, that “it does not
possess records responsive to the request.” R.R. at 8a. Before this Court, Collazo
asserts that the OOR erred when it “summarily denied” his request for “policy
documents assuring the integrity of gaming in the Commonwealth.” Petition for
Review ¶ 3.5 The Board counters that Collazo has failed to address the reasons that


       4
      An unreported opinion of this Court may be cited for its persuasive value pursuant to
Commonwealth Court Internal Operating Procedures § 414(a), 210 Pa. Code § 69.414(a).
       5
           Collazo provides the following statement of questions for our consideration:

                A. Whether [the Board] as a state actor and the sole regulatory agent
                   of the gaming industry in the Commonwealth of Pennsylvania
                   pretextually denied [Collazo’s] request for applicable statutes or
                   policy documents which permits [the Board] as a state actors
                   [sic] and functioning under color of law, sovereign immunity
                   and Eleventh Amendment protection to extend those protections
                   to privately owned and publicly traded corporations at the mere
                   issuance of a license . . . .

                B. Whether policy documents related to employees or appointed
                   officials of the Commonwealth engaged in business transactions
                   and private arrangements with for profit corporations accruing
                   from their official position of authority which are permitted and
                   are not in violation of Subchapter K. Code of Conduct for
                   Appointed Officials and State Employees 7.151 were summarily
                   denied by the [Board] and OOR . . . .

                C. Whether [the Board] as the sole regulatory agent over the
                   privately owned gaming industry, pretextually denied
                   [Collazo’s] request for applicable statutes or policy documents
                   establishing that its presence acting under color of law,

                                                 4
the OOR denied his request for relief in its final determination and, therefore, has
waived review of those issues by this Court. Board’s Brief at 9. The Board further
explains that because Collazo has failed to raise any of the OOR’s reasons for
denying his request, this appeal is improper and this matter should be dismissed. Id.
Though the Board is correct that Collazo has not specifically identified any part of
the OOR’s final determination to which he objects before this Court, here we can
engage in an adequate review of the denial based on the only reason stated for the
denial, which is that the records requested do not exist.
                Collazo appears to argue that the Board and the OOR erred when they
denied him access to the records he requested, i.e., documents or policies of the
Board that “exercise complete control” over gaming in Pennsylvania. R.R. at 9a.
The Board responded that “[t]here are no documents or policies of the [Board] that
exercise ‘complete control’ over gaming in the Commonwealth of Pennsylvania.”
R.R. at 13a. In support, the Board provided an affidavit “subject to penalties of 18
Pa. C.S. § 4904” explaining:

                       The Pennsylvania Gaming Control Board operates
                primarily under the provisions of the Pennsylvania Race
                [H]orse Development and Gaming Act[6] . . . [which] gives
                the Board regulatory authority over the authorization,
                operation and play of slot machines and table games. The
                Board does not hold an ownership interest in any of its
                licensed facilities. In fact, the Board and its staff are
                prohibited from having a financial interest in gaming
                companies it regulates. . . .

                    sovereign and Eleventh Amendment immunity, while operating
                    on privately owned properties, constitutes non-state action.
Collazo’s Brief at 3.

       6
           4 Pa. C.S. §§ 1101-1904.
                                               5
                    There are no provisions in the Gaming Act or the
             Board’s regulations that permit the Board to insert itself
             into a casino’[s] management of its business, so long as
             the casino complies with requirements under the Gaming
             Act and the Board’s regulations set in place to ensure the
             integrity of gaming in the Commonwealth.
                    The Board maintains numerous policies and
             regulations, many of which can be found on the Board’s
             website. . . .None of these policies and regulations give the
             Board complete control of Pennsylvania Casinos. Rather,
             these policies pertain to technical submissions, integrity
             requirements, approved table and slot machine play,
             surveillance video requirements, and the like.


R.R. at 32a-33a (emphasis added). Based on these averments, the Board has asserted
that the records Collazo seeks, documents and policies showing complete control
over gaming in Pennsylvania, do not exist.
             The burden of proving that a document does not exist is on the agency
responding to the request. Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa.
Cmwlth. 2001) (noting that an agency is not required to create a record if the
requested record does not exist); see Moore v. Office of Open Records, 992 A.2d
907, 909 (Pa. Cmwlth. 2010) (explaining that the standard is whether the requested
record is in existence and in the possession of the Commonwealth agency at the time
of the request). To sustain its burden of proof, an agency may provide a sworn
affidavit or statement made under the penalty of perjury as competent evidence to
show that a record does not exist. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515,
520-21 (Pa. Cmwlth. 2011); Moore, 992 A.2d at 909 (stating that an agency may
submit an affidavit to satisfy its burden of proof).
             Here, the Board met its burden of showing that it does not have records
responsive to Collazo’s request. The affidavit provided that by law, the Board and
                                           6
its staff cannot have a financial interest in the gaming companies it regulates; the
Board does not have the authority to insert itself into a “casino[’s] management of
its business”; and none of the Board’s policies and regulations give it “complete
control of Pennsylvania casinos.” R.R. at 32a-33a. There is no evidence to suggest
that the Board acted in bad faith or that the responsive policies or other records do
exist. See McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Cmwlth.
2014) (indicating that where no evidence has been presented to show that the agency
acted in bad faith, the averments in the agency’s affidavit should be accepted as true).
Therefore, the OOR did not err when it accepted the averments in the affidavit as
true and concluded that the Board met its burden of showing that it does not possess
records responsive to the request because no such records exist.
             Accordingly, we affirm.




                                           7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Ruben M. Collazo,                     :
                    Petitioner        :
                                      :
            v.                        :
                                      :
Pennsylvania Gaming Control Board,    :   No. 244 C.D. 2018
                 Respondent           :


PER CURIAM
                                  ORDER




            AND NOW, this 28th day of December, 2018, the January 24, 2018
final determination of the Office of Open Records is AFFIRMED.
