            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edgar Rogers,                     :
                                  :
                       Petitioner :
                                  :
                 v.               : No. 2068 C.D. 2016
                                  : Submitted: May 26, 2017
Pennsylvania Department           :
of Corrections,                   :
                                  :
                       Respondent :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                    FILED: June 28, 2017


               Edgar Rogers (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 September 26, 2016, Requester
submitted his Request seeking “a true and correct copy of the original ‘Written
Judgment of Sentence Order’” containing “(1) the [judge’s] signature; (2) the

      1
          Act of February 14, 2008, P.L. 6, 65 §§67.101-67.3104.
Statute [he] was sentenced [under]; and (3) the Statutory Authorization pertaining
to docket No. CP-51-CR-0408431-1979.”            Id.   On October 27, 2016, the
Department’s Open Records Officer (ORO) denied the request, stating that “[t]he
record(s) you requested do not currently exist in the possession of the
[Department].” Id.
             On November 2, 2016, Requester filed an appeal with OOR alleging
that the document that the ORO sent was “confusing, due to the fact that this
[Written Judgment of Sentence Order] should have been presented to the
[Department] upon my commitment” and that “[w]ithout this document, [he is]
being held in the custody of the [Department] unlawfully and illegally.” C.R. Item
1. In response, the Department reasserted that the “record does not exist within the
Department’s possession.”      C.R. Item 3.     The Department also provided the
attestation of Diane Yale, the Records Supervisor at SCI-Dallas, that the
Department does not possess any records that are responsive to his Request. Id.
             On December 7, 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 (emphasis in original). 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 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 law in failing to
state what statute authorized it to impose the sentence that he is now serving.3

       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
Petitioner’s Brief at 6-7. Based on the foregoing, Requester 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 back to the
[sentencing court] to file a ‘Writ of Habeas Corpus Ad Subjiciendum’ in the
interest of justice.” Id. at 28 (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



(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 [sic] 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 27 (emphasis in original).


                                                   4
               to this Court. See Sections 1101, 1301 and 1302 of the
               RTKL, 65 P.S. §§67.1101, 1301, and 1302.

                      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.
Foster v. Pennsylvania Department of Corrections, ___A.3d___ (Pa. Cmwlth., No.
1805 C.D. 2016, filed April 7, 2017), slip op. at 4-5 (quoting 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

       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
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 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. Foster, ___ A.3d at ___. slip op. at 6 n.5.


                                                6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edgar Rogers,                     :
                                  :
                       Petitioner :
                                  :
                 v.               : No. 2068 C.D. 2016
                                  :
Pennsylvania Department           :
of Corrections,                   :
                                  :
                       Respondent :



                                ORDER


           AND NOW, this 28th day of June, 2017, the order of the Office of
Open Records dated December 7, 2016, at No. AP 2016-1911, is AFFIRMED.




                                  __________________________________
                                  MICHAEL H. WOJCIK, Judge
