            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Earl Foster,                                    :
                                                :
                              Petitioner        :
                                                :
                       v.                       : No. 1805 C.D. 2016
                                                : Submitted: February 17, 2017
Pennsylvania Department                         :
of Corrections,                                 :
                                                :
                              Respondent        :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY JUDGE WOJCIK                                            FILED: April 7, 2017


               Earl Foster (Requester) petitions pro se for review of the Final
Determination of the Office of Open Records (OOR) denying his appeal of the
Department of Corrections’ (Department) denial of his request (Request) for a
copy of his “Written Judgment of Sentence Order” pursuant to the Right to Know
Law (RTKL).1 We affirm.
               Requester is an inmate at the State Correctional Institution at Dallas
(SCI-Dallas). Certified Record (C.R.) Item 1. On August 22, 2016, Requester
submitted his Request seeking “a true and correct copy of the “Written Judgment
of Sentence Order” containing “(1) the Signature of the Judge; (2) the Statute [he]
was sentenced under; and (3) the Statutory Authorization related to Docket No.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.
CP-51-CR-0014680-2007.” Id. On September 7, 2016, the Department’s Open
Records Officer (ORO) denied the request, stating that “[t]he record(s) that you
requested do not currently exist in the possession of the [Department].” Id.
             On October 4, 2016, Requester filed an appeal with OOR alleging that
the document that the ORO sent was “misleading and self-serving” because he
“was simply requesting a copy of the proper legal document that is required by
law, that should have been in the possession of the [Department] to make [his]
commitment lawful,” and that “without such document [he is] being unlawfully
held and detained.” C.R. Item 1. In response, the Department asserted that Diane
Yale, the Records Supervisor at SCI-Dallas, located a sentencing order in
Requester’s file on Form AOPC 2066 that was signed by the sentencing judge, and
that “[t]o the extent the attached [order] is the requested record then this matter is
moot.” C.R. Item 3. The Department also provided the attestation of the Records
Supervisor that the Department does not possess any other records that are
responsive to his Request. Id.
             On October 19, 2016, OOR issued the Final Determination denying
Requester’s appeal stating, in relevant part:

                    Under the RTKL, an affidavit may serve as
             sufficient evidentiary support. See Sherry v. Radnor
             Twp. Sch. Dist., 20 A.3d 515, 520-21 ([Pa. Cmwlth.]
             2011); Moore v. Office of Open Records, 992 A.2d 907,
             909 ([Pa. Cmwlth.] 2010). In the absence of any
             evidence that the Department has acted in bad faith or
             that the records do, in fact, exist, “the averments in [the
             affidavit] should be accepted as true.” McGowan v. Pa.
             Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 ([Pa.
             Cmwlth.] 2014) (citing Office of the Governor v.
             Scolforo, 65 A.3d 1095, 1103 ([Pa. Cmwlth.] 2013)).
             Based on the evidence provided, the Department has met
             its burden of proof that the records requested do not exist

                                          2
                 in the Department’s possession, custody or control.1
                 Accordingly, the appeal is denied.
                                           ***
                        1
                         While the Department does not possess the
                 requested sentencing order, there exists a common law
                 right of access to judicial records. Commonwealth v.
                 Upshur, 924 A.2d 642 (Pa. 2007). The common law
                 right of access to public judicial records and documents
                 arose from the presumption that judicial proceedings will
                 be open to the public. As the Supreme Court has stated,
                 “[i]t is clear that the courts of this country recognize a
                 general right to inspect and copy public records and
                 documents, including judicial records and documents.”
                 Nixon v. Warner Communications, Inc., 435 U.S. 589,
                 591 (1978) (footnotes omitted). The Pennsylvania
                 Supreme Court has viewed the common law right of
                 access as compelled by many of the considerations that
                 underlie the presumption of public trials.             See
                 Commonwealth v. Fenstermaker, 530 A.2d 414, 417-18
                 (Pa. 1987). The records sought, if they exist, may be
                 requested from the issuing court.
C.R. Item 4. Requester filed a timely petition for review.
                 On appeal,2 Requester does not challenge OOR’s Final Determination
upholding the Department’s response to his Request. Rather, Requester argues
that: (1) the Department erred as a matter of statutory law when it accepted and
committed him without a proper and legal sentencing order; (2) he is entitled to
relief where the sentencing court failed to provide a proper sentencing order to the
Department as required by law; and (3) the sentencing court erred as a matter of
law in failing to state what statute authorized it to impose the sentence that he is
now serving.3 Petitioner’s Brief at 4, 8-30. Based on the foregoing, Requester

       2
         This Court’s standard of review of OOR’s Final Determination is de novo and our scope
of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).

       3
           Requester’s brief also contains the following disclaimer:
(Footnote continued on next page…)
                                                  3
asks this Court to “find that [his] Constitutional and Civil Rights are being violated
by his continued unlawful and illegal detention and confinement in the custody of
the [Department] without the proper and legal document that was/is required to
make such a detention legal and GRANT [him] a REMAND of this matter to the
[sentencing court] to file a “Writ of Habeas Corpus Ad Subjiciendum” in the
true interest of justice.” Id. at 31 (emphasis in original).
               As this Court has explained:

                      The RTKL is a statute that grants citizens, in
               certain specified circumstances, the right to obtain public
               records from government agencies, “in order to prohibit
               secrets, scrutinize the actions of public 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)]. If an individual requests a public record and a
               government agency denied the request, the individual can
               appeal the decision to the trial court or the OOR and then
               to this Court. See Sections 1101, 1301 and 1302 of the
               RTKL, 65 P.S. §§67.1101, 1301, and 1302.

(continued…)


               INVOKING ALL OF THE ABOVE IT IS NOT AND WAS
               NOT THIS PETITIONER’S INTENTION OR AIM TO
               APPEAL THE FINDINGS OF THE [DEPARTMENT’S
               RTKL] OFFICE OR THE [OOR] STATING THAT THE
               WRITTEN JUDGMENT OF SENTENCE ORDER IS NOT IN
               THEIR POSSESSION AND IT HAS ALWAYS BEEN HIS
               AIM TO CHALLENGE HIS DETENTION AND
               CONFINEMENT      BEING      UNCONSTITUTIONAL
               WITHOUT THIS LAWFUL DOCUMENT, THE FACT OF
               THE MATTER IS THAT THE [DEPARTMENT’S]
               AFFIDAVIT SUPPORTS HIS CLAIMS.

Petitioner’s Brief at 30 (emphasis in original).


                                                   4
                      However, the RTKL is not a vehicle through
               which an individual can collaterally attack the legality of
               his criminal confinement. The RTKL does not contain
               any statutory provisions or procedures providing an
               individual with a right or avenue to declare his
               underlying judgment of sentence a legal nullity. Indeed,
               our Supreme Court has held that the Post-Conviction
               Relief Act [(PCRA), 42 Pa. C.S. §§9541-9546,] is the
               exclusive state-law remedy for prisoners challenging
               sentences that are allegedly illegal. Commonwealth v.
               Hall, [771 A.2d 1232 (Pa. 2001)]. Because Requester
               does not contest the denial of his RTKL request and
               seeks relief beyond the purview of the RTKL, this Court
               has no basis upon which to disturb the OOR’s final
               determination.
Whitaker v. Pennsylvania Department of Corrections, (Pa. Cmwlth., No. 1781
C.D. 2012, filed March 8, 2013), slip op. at 3-4 (footnotes omitted).4 As a result,
Requester cannot use the instant appeal as a vehicle to collaterally attack the
sentencing court’s judgment of sentence. Id. See Moore, 992 A.2d at 909-10
(“Moore also attempts to raise a due process challenge to his continued
confinement . . . . However, an appeal from an OOR order denying Moore’s
request for access to a public record is not the proper forum to challenge the
constitutionality of his continued incarceration.”); Quarles v. Department of
Corrections, (Pa. Cmwlth., No. 901 C.D. 2014, filed November 10, 2014), slip op.
at 8-9 (“Like the petitioners in Moore and Whitaker, Requester here seeks to
transform his RTKL appeal into a challenge to his ongoing incarceration.
However, in Moore and Whitaker, we held that such relief was unavailable in a
RTKL appeal. Accordingly, Requester’s arguments regarding the legality of his

       4
          See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).


                                                5
sentence are not within the purview of the RTKL, and we will not consider
Requester’s claims in this RTKL appeal.”) (footnote omitted). See also Huntley v.
Pennsylvania Department of Corrections, (Pa. Cmwlth., No. 1202 C.D. 2016, filed
March 2, 2017), slip op. at 4-5 (quoting Moore, Quarles and Whitaker).5
               Accordingly, OOR’s final determination is affirmed.




                                             MICHAEL H. WOJCIK, Judge




       5
          Moreover, we cannot remand the matter to the sentencing court so that Requester can
collaterally attack his judgment of sentence. There is simply no legal authority for this Court to
remand this matter as Requester suggests. Huntley, slip op. at 5 n.5.


                                                6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Earl Foster,                              :
                                          :
                          Petitioner      :
                                          :
                    v.                    : No. 1805 C.D. 2016
                                          :
Pennsylvania Department                   :
of Corrections,                           :
                                          :
                          Respondent      :



                                       ORDER


               AND NOW, this 7th day of April, 2017, the order of the Office of
Open Records dated October 19, 2016, at No. AP 2016-1601, is AFFIRMED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
