IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Routha Roussaw

, : Petitioner :

:

v. :

: Pennsylvania Department of : Corrections

, : No. 662 C.D. 2018 Respondent : Submitted: Novem b er 16 , 2018

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: January 1 6 , 2019

Routha Roussaw ( Requester ), pro se, petitions this Court for review of

the Office of Open Record’s (OOR) May 1, 2018 Final Determination denying his

appeal from the Pennsylvania Department of Corrections’ (DOC) denial of his Right

to

- Know Law (RTKL) 1 request (Request)

. The sole issue before this Court is

whether the OOR properly denie d Requester ’s appeal because t he R equest was for a

judicial record . Upon review, we affirm.

Requester is an inmate at the State Correctional Institution at Dallas. On

March 10, 2018, Requester filed the Request seeking a copy of his sentencing order

per taining to case number CP

- 51

- CR

- 0931421

- 1989. On March 20, 2018, DOC

denied the Request on the basis that the requested record is a judicial record not

subject to disclosure under the RTKL. On April 5, 2018, Requester filed an appeal

with the OOR challen ging DOC’s denial and stating his grounds for disclosure. The

OOR invited both parties to supplement the record and directed DOC to notify any

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

- 67.3104.2

third parties of their ability to particip ate in this appeal pursuant to S ection 1101(c) of

the RTKL, 65 P.S. § 67.1101(c). On April 12, 2018, DOC submitted a position

statement, asserting that the record is a judicial agency record not subject to

disclosure under the RTKL. On April 27, 2018, Requester provided a submission

,

wherein he asserted that DOC should mak e the sentencing order available . On May

1, 2018, the OOR issued its Final D etermination denying Requester ’s appeal.

Requester appealed to this Court. 2

Initially , “ Section 701(a) of the RTKL , 65 P.S. § 67.701(a), provid es the

general rule of access: ‘ Un less otherwise provided by law, a public record

. . . shall

be accessible for inspection and duplication in accordance with [the RTKL]

. ’ ” Ali v.

Phila. City Planning Comm’n , 125 A

. 3d 92, 99 ( Pa. Cmwlth. 2015) (emphasis

added).

Section 305(a) of the RTKL [ 3 ] provides for a presumption

that all records in the possession of a [ Commonwealth ] agency are public records

. Section 305(a) of the RTKL,

howe ver, mirrors the definition of ‘ public record ’ in Section
102 of the RTKL, [ 4 ] by providing that the presumption does not apply where the record in question is either (1) exempt under Section 708 of the RTKL, 65 P.S. § 67.708; (2) exempt under federal or state law, regulation, or judicial

order or decree ; or (3) subject to a privilege.

Ali , 125 A.3d at 99 (emphasis added)

. Further, “[t] he public nature of a record,

relating to content, is distinct from public access .” Grine v. Cty. of C tr

. , 138 A.3d 88,

98 (Pa. Cmwlth. 2016).

2 “Our standard of review ‘ is wh ether an error of law was committed, constitutional rights

were violated, or necessary findings of fact are supported by substantial evidence. Our scope of

review is plenary. ’ Silver v. Borough of Wilkinsburg , 58 A.3d 125, 127 n.2 (Pa. Cmwlth. 2012) .”

Ph ila. Dist. Attorney’s Office v. Stover , 176 A.3d 1024, 1026 n.3 (Pa. Cmwlth. 2017).

3 65 P.S. § 67.30 5(a)

. 4 65 P.S. § 67. 102.3 Requester first argues that DOC’s den ial of his Request because it is a

judicial record ignores his R equest because DOC never stated whether it has the

requested document and

, if it does , why it should not be accessible to Requester

.

However, only agency records are disclosable under the RTKL

, see Ali ; therefore, it

is irrelevant whether DO C has the requested document. See Grine. Thus, “ [t] he

quintessential issue in this case is whether the requested record s , namely the

[sentencing order] are records ‘ of ’ [DOC] (a [Commonwea l th] agency) or records

‘ of’ the court of common pleas (a judicial agency). If the records are the former, they

are disclosable; if the latter, they are not. ” Phila. Dist. Attorney’s O f fice v. Stover

,

176 A.3d 1024, 1028 (Pa. Cmwlth. 2017) (citation omitted)

.

This Court has held that a sentencing order is a record ‘ of ’ the judiciary and, as such, it is not disclosable under the

RTKL. The fact that [DOC] may possess []

- or readily

obtain

- a copy of the sentencing order in no way transforms the record of a judicial agency into a record of a local

agency.

Id. at 1028

- 29 (citations omitted)

. Here

, the requested document “ [is] exempt from

disclosure under the RTKL as records of a judicial agency. ” Id. at 1030.

Accordingly, the OOR properly denied Requester’s appeal because he requested a

judicial record

.

Requester next asserts that his R equest is governed by Section 9764 of

the Sentencing Code , 42 Pa.C.S. § 9764

, and

, thus, DOC’s inability to produce the

requested document “manifest[s] a fatal failure to establis h [] DOC’s authority to

detain [ Requester].” Requester Br . at 13.

This Court acknowledges that Section 9764 (a) of the Sentencing Code

provides, in relevant part:

Upon commitment of an inmate to the custody of [DOC]

, the sheriff or transporting official s hall provide to the

institution’ s records officer or duty officer, in addition to a4 copy of the court commitment form DC

- 300B generated from the Common Pleas Criminal Court Case Management System of the unified judicial system, the following

information:

. . . .

(8) A copy of the sentencing order and any detainer s filed against the inmate [of] which the county has notice.

42 Pa.C.S. § 9764 (a)

. Nevertheless, the law is well settled that “ an appeal from an

OOR order denying [Requester’s] request for access to a public record is not the

proper forum to challenge

. . . his continued incarceration. ” Moore v. Office of Open

Records , 992 A.2d 907, 910 (Pa. Cmwlth. 2010). Consequently, this argument is

meritless.

For all of the above reasons, the OOR’s Final Determination is affirmed.

___________________ ________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Routha Roussaw, : Petitioner :

:

v. :

: Pennsylvania Department of : Corrections, : No. 662 C.D. 2018 Respondent :

O R D E R

AND NOW, this 1 6 th day of January , 201 9

, the Office of Open Record’s

May 1, 2018 Final Determination is affirmed.

___________________________ ANNE E. COVEY, Judge