      IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce L. Wishnefsky,                         :
                 Petitioner                  :
                                             :
                       v.                    :
                                             :
Department of Corrections,                   :       No. 491 C.D. 2019
                 Respondent                  :       Submitted: August 30, 2019


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: October 30, 2019

               Bruce L. Wishnefsky (Requester) petitions this Court for review of the
Office of Open Records’ (OOR) March 28, 2019 Final Determination dismissing his
appeal as premature. Requester presents one issue for this Court’s review: whether
his due process rights were violated when the Pennsylvania Department of
Corrections (DOC) mailed its written response to Requester’s Right-to-Know Law
(RTKL)1 request (Request) to the wrong address. After review, we affirm.


                                                 Facts
               Requester is an inmate at the State Correctional Institution (SCI) at
Laurel Highlands. On February 8, 2019, Requester submitted a Request to DOC
seeking “any contract, policy, procedure, administrative manual, or similar record
that discusses the ‘REF:’ printed on some documents . . . followed by a six digit



      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
number[.]” Certified Record (C.R.) Item 1 at 2 (Request). Pursuant to Section 901 of
the RTKL:
              The time for response shall not exceed five business days
              from the date the written request is received by the open-
              records officer for an agency. If the agency fails to send the
              response within five business days of receipt of the written
              request for access, the written request for access shall be
              deemed denied.

65 P.S. § 67.901. On February 11, 2019, pursuant to Section 902 of the RTKL,2
DOC invoked a 30-day extension to respond to the Request (Interim Response).3 See
C.R. Item 3 at 4 (Affidavit).4        However, Requester did not receive the Interim
Response until March 6, 2019. Consequently, on March 5, 2019, Requester appealed
to the OOR, asserting that, pursuant to Section 901 of the RTKL, the Request was
deemed denied (Requester’s Appeal).
              On March 5, 2019, DOC timely mailed its final response to Requester
denying the Request because the record did not exist (Final Response).5 See C.R.
Item 3 at 10 (Final Response). On March 15, 2019, with respect to Requester’s
Appeal, DOC submitted its position statement, along with an affidavit from DOC’s
Open Records Officer Andrew Filkosky stating that DOC responded on March 5,
2019 denying the Request and that the Requester’s appeal was premature. On March
28, 2019, the OOR issued and mailed its Final Determination dismissing Requester’s

       2
          65 P.S. § 67.902 (relating to extension of time).
       3
          The Interim Response was returned to DOC on February 23, 2019. See C.R. Item 3 at 8
(Returned Envelope). On February 28, 2019, the OOR again mailed the Interim Response to
Requester.
        4
          Although the Interim Response is not contained in the Certified Record, DOC’s Agency
Open Records Officer Andrew Filkosky declared in his affidavit that he mailed the Interim
Response on February 11, 2019 and attached the returned envelope, see C.R. Item 3 at 8 (Returned
Envelope), which was postmarked February 13, 2019.
        5
          On March 22, 2019, Requester appealed from the Final Response. On April 16, 2019, the
OOR issued a final determination denying Wishnefsky’s appeal. Wishnefsky appealed from that
final determination to this Court. That appeal is not currently before this Court.
                                               2
Appeal as premature. On April 3, 2019, Requester filed a request for reconsideration
with the OOR (Reconsideration Request). The OOR denied the Reconsideration
Request on April 11, 2019. See C.R. Item 6 at 1 (Denial Letter). Requester appealed
to this Court.6
              On July 24, 2019, Requester filed a Motion to Expand the Record to
include Exhibit A (Motion).7 Requester asserts therein that, although he mailed
Exhibit A to the OOR on March 27, 2019, it was not included in the Certified Record.
By August 8, 2019 order, this Court directed that the Motion be decided with the
merits of the appeal.


                                          Discussion
              Initially, Section 902 of the RTKL provides in relevant part:

              (a) Determination.--Upon receipt of a written request for
              access, the open-records officer for an agency shall
              determine if one of the following applies:
              ....
              (3) a timely response to the request for access cannot be
              accomplished due to bona fide and specified staffing
              limitations; [or]
              ....
              (7) the extent or nature of the request precludes a response
              within the required time period.
              (b) Notice.--
              (1) Upon a determination that one of the factors listed in
              subsection (a) applies, the open-records officer shall send

       6
          “On appeal from the OOR in a[n] RTKL case, this Court’s standard of review is de novo
and our scope of review is plenary.” Dep’t of Human Servs. v. Pennsylvanians for Union Reform,
Inc., 154 A.3d 431, 435 n.8 (Pa. Cmwlth. 2017).
        7
          Exhibit A is a letter from Requester to the OOR explaining why he believes his appeal is
not premature.
                                                3
                written notice to the requester within five business days
                of receipt of the request for access under subsection (a).
                (2) The notice shall include a statement notifying the
                requester that the request for access is being reviewed, the
                reason for the review, a reasonable date that a response is
                expected to be provided and an estimate of applicable fees
                owed when the record becomes available. If the date that a
                response is expected to be provided is in excess of 30 days,
                following the five business days allowed for in [S]ection
                901 [of the RTKL], the request for access shall be deemed
                denied unless the requester has agreed in writing to an
                extension to the date specified in the notice.
                (3) If the requester agrees to the extension, the request shall
                be deemed denied on the day following the date specified in
                the notice if the agency has not provided a response by that
                date.

65 P.S. § 67.902 (text emphasis added). Here, as evidenced by the returned envelope,
DOC mailed the Interim Response to Requester on February 11, 2019. See C.R. Item
3 at 8. Thus, DOC mailed the Interim Response within 5 days of Requester’s
February 8, 2019 Request. This Court acknowledges, and it is undisputed, that
Requester did not receive said notice until March 6, 2019.
                Requester argues: “Due process requires the government to provide
notice reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their
objections.” Requester Br. at 6. However, Requester’s argument is misplaced. The
fact that Requester did not timely receive the Interim Response did not prevent him
from appealing to the OOR from the Final Response. Indeed, an appeal from the
Final Response is the appropriate forum for Requester to raise the argument that he
did not have an opportunity to present his objections. However, that appeal is not
before this Court. Accordingly, the OOR’s Final Determination is affirmed.8


      8
          Given the disposition of the merits of the appeal, Requester’s Motion is denied as moot.
                                                  4
For all of the above reasons, the OOR’s Final Determination is affirmed.



                         ___________________________
                         ANNE E. COVEY, Judge




                             5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce L. Wishnefsky,              :
                 Petitioner       :
                                  :
                 v.               :
                                  :
Department of Corrections,        :     No. 491 C.D. 2019
                 Respondent       :


                                 ORDER

           AND NOW, this 30th day of October, 2019, the Office of Open Records’
March 28, 2019 Final Determination is AFFIRMED and Bruce L. Wishnefsky’s
Motion to Expand the Record is DENIED as moot.


                                  ___________________________
                                  ANNE E. COVEY, Judge
