             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billy Moore,                                     :
                        Petitioner               :
                                                 :
                 v.                              : No. 1638 C.D. 2016
                                                 : Submitted: February 24, 2017
Department of Corrections,                       :
                 Respondent                      :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: September 21, 2017
                 Billy Moore petitions for review of a final determination of the Office
of Open Records (OOR) denying his appeal under the Right-to-Know Law.1 In
doing so, the OOR affirmed the Department of Corrections’ denial of Moore’s
request for the names of two correctional employees for the stated reason that the
requested records do not exist. Because the Department did not satisfy its burden
of proof, we vacate the OOR’s final determination and remand for further
proceedings.
                 Moore is an inmate incarcerated at the State Correctional Institution
(SCI) at Albion. On June 20, 2016, he filed a Right-to-Know request with the
Department’s Open Records Officer, seeking the names of the law librarian and
paralegal who worked on his appeal under the Post Conviction Relief Act (PCRA),
42 Pa. C.S. §§9541-9546, in 2010 while Moore was incarcerated at SCI-Coal
Township. See Commonwealth v. Moore (Pa. Super., No. 398 WDA 2010, filed

1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.
August 6, 2010).2 The Open Records Officer denied Moore’s request on the
grounds that “[t]he record(s) that you requested do not currently exist.” Certified
Record (C.R.), Item No. 1, at 2. On August 5, 2016, Moore appealed to the OOR.
On August 10, 2016, the Department submitted a position statement and the Open
Records Officer’s unsworn attestation that he reviewed Moore’s request,
researched the Department’s records and confirmed that no responsive records
exist within the Department’s possession or control.
              The OOR elected not to hold a hearing and denied Moore’s appeal in
a final determination dated September 1, 2016. The OOR explained that, in the
absence of any competent evidence that the Department possesses the requested
records or acted in bad faith, it would accept the averments in the Open Records
Officer’s statement as true.       The OOR noted that Moore did not submit any
evidence to challenge the Open Records Officer’s statement. Thus, the OOR held
that based on the evidence provided, the Department “met its burden of proving
that the records requested do not exist in the Department’s possession, custody or
control.” C.R., Item No. 4, at 1. Moore petitioned for this Court’s review.
              On appeal,3 Moore raises a number of issues that are difficult to
understand. The gist of his appeal is that the information he seeks from the
Department must exist; therefore, the OOR’s final determination is not supported
by substantial evidence. The Department responds that it cannot be compelled to
create a record that does not exist and that it offered substantial evidence, in the


2
  The Superior Court quashed Moore’s PCRA appeal because his brief was devoid of any legal
argument in support of his claim that his trial counsel rendered ineffective assistance.
3
  This Court’s standard of review of a final determination of the OOR is de novo and our scope
of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
                                              2
form of its Open Records Officer’s attestation, that the records Moore requested do
not exist.
             The Right-to-Know Law is “designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions.”      Hodges v.
Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011) (citation omitted).
An agency has no duty, however, to create a record that does not exist or compile a
record in a new or novel format. Section 705 of the Right-to-Know Law states:

             When responding to a request for access, an agency shall not be
             required to create a record which does not currently exist or to
             compile, maintain, format or organize a record in a manner in
             which the agency does not currently compile, maintain, format
             or organize the record.

65 P.S. §67.705.
             An agency responding to a Right-to-Know request bears the burden of
proving by a preponderance of evidence that a record does not exist or is exempt
from disclosure. Section 708(a) of the Right-to-Know Law, 65 P.S. §67.708(a).
“[A]n agency may satisfy its burden of proof that it does not possess a requested
record with either an unsworn attestation by the person who searched for the record
or a sworn affidavit of nonexistence of the record.” Hodges, 29 A.3d at 1192
(citing Moore v. Office of Open Records, 992 A.2d 907, 908-09 (Pa. Cmwlth.
2010)). In this context,

             [a]ffidavits are the means through which a governmental
             agency details the search it conducted for the documents
             requested and justifies nondisclosure of the requested
             documents under each exemption upon which it relied upon.
             The affidavits must be detailed, nonconclusory, and submitted
             in good faith. ... In other words, a generic determination or
                                         3
            conclusory statements are not sufficient to justify the exemption
            of public records.

Office of Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (citation
omitted) (emphasis added).
            Here, the Department offered the following written “declaration” by
its Open Records Officer:

            I, Andrew Filkosky, hereby declare under the penalty of
            unsworn falsifications, pursuant to 18 Pa. C.S. §4904, that the
            following statements are true and correct based upon my
            personal knowledge, information, and belief:
            1. Currently, the Pennsylvania Department of Corrections
               (“Department”) employs me [as] the Agency Open Records
               Officer (“AORO”).
            2. I was appointed to my current position as the AORO in July
               of 2008.
            3. I am responsible for logging in and issuing responses to all
               Right-to-Know Law (“RTKL”) requests received by the
               Department.
            4. On June 20, 2016, the Department received a RTKL request
               from Billy Moore (LM0104).
            5. The request was filed under RTKL #0762-16.
            6. The request was for “the names = law librarian – in – 2010 –
               SCI-Coal Township or – paralegal – who worked for the
               Department of Corrections PCRA appeal to the Superior
               Court in 8-6-2010 in the case of Commonwealth v. Billy
               Moore, 348 WDA 2010. When I was incarcerated at SCI-
               Coal Township in 2010.” See Request.
            7. The Department denied the request because the record does
               not exist.
            8. As part of my job duties, I reviewed the request and
               researched it to determine whether any of the requested
               records exist within in [sic] the Department’s possession.
                                        4
             9. After a reasonable search, no responsive records exist within
                the Department’s custody, possession or control.

C.R., Item No. 3, at 2.
             Moore’s request seeks two different pieces of information: (1) the
names of the law librarian and paralegal who worked at SCI-Coal Township in
2010, and (2) the names of the prison employees who assisted him in preparing his
PCRA appeal. The latter request would presumably require the Open Records
Officer to interview current or former employees, thereby creating a record that
does not currently exist. Because the Open Records Officer is not required to
create a record, an affidavit is arguably not even necessary. See Section 705 of the
Right-to-Know Law, 65 P.S. §67.705.
             The analysis is different with regard to Moore’s request for the
identity of the individuals employed as librarian and paralegal at SCI-Coal
Township in 2010.         The Open Records Officer’s conclusory and generic
declaration is insufficient to satisfy the Department’s burden of proof.          Cf.
Scolforo, 65 A.3d at 1103. To support his conclusion that “no responsive records
exist within the Department’s custody, possession or control,” the Open Records
Officer states only that he “reviewed [Moore’s] request and researched it.” More
details are needed about this research, including, at a minimum, a description of
the records he reviewed. This lack of detail is especially glaring in this case since
the Department should have existing records of the names of its current and former
employees.
             For all these reasons, we vacate the OOR’s final determination and
remand this matter for further proceedings.        The Department is directed to



                                         5
supplement the written declaration of its Open Records Officer to include the
above-described information.

                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge




                                     6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billy Moore,                             :
                   Petitioner            :
                                         :
            v.                           : No. 1638 C.D. 2016
                                         :
Department of Corrections,               :
                 Respondent              :


                                   ORDER

            AND NOW, this 21st day of September, 2017, the Final Determination
of the Office of Open Records in the above-captioned matter, dated September 1,
2016, is VACATED and this matter is REMANDED for further proceedings in
which the Department of Corrections shall supplement the record in accordance
with the attached opinion.
            Jurisdiction relinquished.


                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Billy Moore,                              :
                   Petitioner             :
                                          :
             v.                           : No. 1638 C.D. 2016
                                          : Submitted: February 24, 2017
Department of Corrections,                :
                 Respondent               :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


DISSENTING OPINION BY
SENIOR JUDGE COLINS                                   FILED: September 21, 2017

             Petitioner and the majority are asking Respondent to create a record.
The attestation that no such record exists is sufficient in that, while the Respondent
would know the names of any law librarians or paralegals who worked for
Respondent at SCI-Coal Township, I do not believe that Respondent is obligated to
interview these people in order to determine who worked on Petitioner’s appeal so
as to create a record for Petitioner. The Petitioner should know to whom he was
speaking and when he spoke to them.



                                     ______________________________________
                                     JAMES GARDNER COLINS, Senior Judge
