IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell Reese, :

Petitioner :

:

v. : No. 84 C.D. 2017

: Submitted: July 14 , 20 1 7 Department of Corrections, :

Responden t :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, J udge 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 Offi ce 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 Correc tional Institution at

Dal las (SCI

- Dallas). H e 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 t he

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 R TKL 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 D epartmen t

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

p art, “If the specific records requested above were in th e 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 contro l.” (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 exi st 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 109 5, 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 thi s 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 THI S [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 deter mination 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)

, aff irmed , 75 A.3d 453 (Pa. 2013) ). Moreover,
we are “entitled t o 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 sentencin g order, it has no authority to detain him at

SCI

- Dallas and he is serving an illegal sentence. Therefore, Requeste r asks this

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

of habeas corpus.

T his 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 se veral recent cases

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

incarceration was illegal becaus e the Department did not have copies of their

sentencing orders in its possession

. See , e.g., Morrison v. Department of

Correction s , ___ 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 i llegal 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 Departme nt of Corrections , (Pa. Cmwlth., No.

1781 C.D. 2012, filed March 8, 2013). 7 In 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.

Becau se 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 Commonwe alth 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, :

Responden t :

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