IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell Reese, :

Petitioner :

:

v. : No. 84 C.D. 2017

: Submitted: July 14, 2017

Department of Corrections, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: August 9, 2017

Darrell Reese (Requester) petitions, pro se, for review of the 

December 27, 2016 final determination of the Office of Open Records (OOR) 

upholding the denial of his request for records from the Pennsylvania Department 

of Corrections (Department) pursuant to the Pennsylvania Right-to-Know Law 

(RTKL).1 We affirm.

Requester is currently an inmate at the State Correctional Institution at 

Dallas (SCI-Dallas). He submitted a RTKL request dated October 7, 2016, to the 

Department’s Agency Open Records Officer (AORO) seeking a “copy of [his] 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2

‘Written Judgment of Sentence Order’ which is to contain: (1) the Signature of the 

Judge; (2) the Statute I was sentence [sic] under and; (3) the Statutory 

Authorization which concerns Docket No. CP-51-CR-0100571-1998.” (Certified 

Record (C.R.) Item 1 at 5.) In a letter dated November 14, 2016, the AORO 

notified Requester that his RTKL request had been denied because the requested 

records did not currently exist and that pursuant to Section 705 of the RTKL, 65 

P.S. § 67.705, an agency is not required to create a record.2

Requester then appealed to the OOR arguing that the Department 

erred in stating that the requested records did not currently exist in the possession 

of the Department. In response, the Department submitted an attestation signed by 

Diane Yale, the Corrections Records Supervisor at SCI-Dallas, attesting in relevant 

part, “If the specific records requested above were in the possession of this 

Institution, they would be retained as official records in files within my custody. 

After a reasonable search, no responsive records exist within my custody, 

possession or control.” (C.R. Item 3 at 3.) On December 27, 2016, the OOR 

issued a final determination denying Requester’s appeal, reasoning as follows:

Under the RTKL, an affidavit may serve as sufficient 

evidentiary support for the nonexistence of records. See 

Sherry v. Radnor T[ownship] Sch[ool] Dist[rict], 20 

A.3d 515, 520-21 (Pa. C[mwlth]. 2011); Moore v. Office 

of Open Records, 992 A.2d 907, 909 (Pa. C[mwlth].

2010). In the absence of any competent evidence that the 

 

2

Section 705 of the RTKL specifically provides that “an agency shall not be required to 

create a record which does not currently exist.” 65 P.S. § 67.705. See also Moore v. Office of 

Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010) (holding that the Department was not 

required to create a record that did not exist in order to satisfy a RTKL request).
3

Department acted in bad faith or that records exist in the 

possession of the Department, ‘the averments in [the 

affidavit] should be accepted as true.’ McGowan v. Pa. 

Dep[artment] of Env[ironmental] Prot[ection], 103 A.3d 

374, 382-83 (Pa. C[mwlth]. 2014) (citing Office of the 

Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. 

C[mwlth]. 2013)). Based on the evidence provided, the 

Department has met its burden of proving that no 

responsive records exist in the Department’s possession, 

custody or control.

(C.R. Item 5 at 2-3.)3 Requester then appealed to this Court.4

Requester does not challenge the OOR’s final determination 

upholding the Department’s denial of his RTKL request. His brief to this Court 

contains the following “Disclaimer,” which explains:

INVOKING ALL OF THE ABOVE IT IS NOT AND 

WAS NOT THIS [REQUESTER]’S INTENTION OR 

AIM TO APPEAL THE FINDINGS OF THE 

PENNSYLVANIA DEPARTMENT OF 

CCORRECTIONS [sic] RIGHT-TO-KNOW LAW 

OFFICE OR THE PENNSYLVANIA OFFICE OF 

OPEN RECORDS STATING THAT THE WRITTEN 

JUDGMENT OF SENTENCE ORDER IS NOT IN 

THEIR POSSESSION[.] IT HAS ALWAYS BEEN HIS 

 

3 Citing to Commonwealth v. Upshur, 924 A.2d 642 (Pa. 2007), the OOR also noted that 

the requested records, if they exist, could be requested from the issuing court under the common 

law right of access to judicial records.

4 We independently review a determination of the OOR and may substitute our own 

findings of fact for that of the agency. Moore, 992 A.2d at 909 n.5 (citing Bowling v. Office of 

Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010), affirmed, 75 A.3d 453 (Pa. 2013)). Moreover, 

we are “entitled to the broadest scope of review.” Moore, 992 A.2d at 909 n.5 (citing Bowling, 

990 A.2d at 820).
4

AIM TO CHALLENGE HIS DETENTION AND 

CONFINEMENT BEING UNCONSTITUTIONAL 

WITHOUT THIS LAWFUL DOCUMENT. . . .

(Requester’s Brief at 27.)5 Requester argues that because the Department is not 

currently in possession of his sentencing order, it has no authority to detain him at 

SCI-Dallas and he is serving an illegal sentence. Therefore, Requester asks this 

Court to remand the matter to the Court of Common Pleas so that he can file a writ 

of habeas corpus.

This Court has held that an appeal from an OOR determination 

denying a “request for access to a public record is not the proper forum to 

challenge the constitutionality of [ ] continued incarceration.” Moore v. Office of 

Open Records, 992 A.2d 907, 910 (Pa. Cmwlth. 2010).6 In several recent cases 

almost identical to Requester’s, inmates have similarly argued that their 

incarceration was illegal because the Department did not have copies of their 

sentencing orders in its possession. See, e.g., Morrison v. Department of 

Corrections, ___ A.3d ___ (Pa. Cmwlth. 2017); Foster v. Pennsylvania 

Department of Corrections, 159 A.3d 1020 (Pa. Cmwlth. 2017); see also Fortune 

v. Department of Corrections, (Pa. Cmwlth., No. 1765 C.D. 2016, filed June 27, 

 

5 Requester also specifies in his brief, “It should be duly noted that [Requester] is not 

appealing the decision of the DOC RTKL office, or the PA OOR partial denial of the request for 

said document, he is in fact challenging his confinement and detention.” (Requester’s Brief at 

15.)

6

In fact, our Supreme Court has held that the exclusive state-law remedy for inmates 

challenging sentences that are allegedly illegal is through the Post-Conviction Relief Act, 42 

Pa.C.S. §§ 9541-9546. See Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001).
5

2017); Whitaker v. Pennsylvania Department of Corrections, (Pa. Cmwlth., No. 

1781 C.D. 2012, filed March 8, 2013).7In each case, this Court affirmed the 

OOR’s decision and held that the inmates were improperly attempting to use the 

RTKL to collaterally attack their criminal confinement.

Because Requester does not contest the denial of his RTKL request or

provide evidence contradicting the Department’s signed attestation, and because he 

seeks relief that is beyond the purview of the RTKL, this Court has no basis upon 

which to disturb the OOR’s decision.

Accordingly, the final determination of the OOR is affirmed.

 

DAN PELLEGRINI, Senior Judge

 

7

Fortune and Whitaker are unreported memorandum opinions and, thus, not binding 

precedent. See Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 

Pa. Code § 69.414(a). However, they are persuasive given the substantial similarities to the 

current action.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell Reese, :

Petitioner :

:

v. : No. 84 C.D. 2017

:

Department of Corrections, :

Respondent :

O R D E R

AND NOW, this 9

th day of August, 2017, the final determination of 

the Office of Open Records in the above-captioned matter is hereby affirmed.

 

DAN PELLEGRINI, Senior Judge