IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ruben M. Collazo, :

Petitioner :

:

v. :

:

Pennsylvania Gaming Control Board, : No. 244 C.D. 2018

Respondent : Submitted: September 14, 2018

OPINION NOT REPORTED

MEMORANDUM OPINION 

PER CURIAM FILED: December 28, 2018

Ruben M. Collazo (Collazo) petitions, pro se, for review of the January 

24, 2018 final determination issued by the Office of Open Records (OOR) pursuant 

to the Right-to-Know Law (RTKL),1 affirming the decision of the Pennsylvania 

Gaming Control Board (Board) to deny Collazo’s request for records. The OOR 

upheld the Board’s decision to deny Collazo’s request because the records sought 

do not exist within the Board’s possession, custody and control. Upon review,2 we 

affirm. 

On November 1, 2017, the Board received a RTKL request from 

Collazo seeking “documents and policy [sic] of the [Board] . . . and the scope of [its]

operations in exercising complete control [of] casinos and gaming.” Reproduced 

 

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

2 When hearing appeals from final determinations issued by the OOR, our standard of 

review is de novo and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 

453, 477 (Pa. 2013). When appropriate, this Court may adopt the findings and legal conclusions 

set forth in a final determination issued by the OOR. Id. at 474.
2

Record (R.R.) at 9a. The request also included 3 pages of 16 “[q]uestions involved.” 

Id. at 10a-12a. After taking a 30-day extension to respond, on December 8, 2017, 

the Board notified Collazo that his request was “[d]enied.” Id. at 13a. The Board 

explained: 

There are no documents or policies of the [Board] that 

exercise “complete control” over gaming in the 

Commonwealth of Pennsylvania. On the contrary, the 

[Board] is a regulatory agency monitoring and regulating 

casino gaming, which is legal in Pennsylvania and 

conducted by private and publicly traded companies, so as 

to assure those companies comply with the law. 

Id. 

Collazo appealed the Board’s decision to the OOR and, in his appeal, 

asserted, in part, that the records he requested “are in the possession, custody or 

control of the agency.” Id. at 15a. Collazo further objected to the denial, explaining 

that he seeks “those policy documents which will clarify and address the convoluted 

relationship that exists . . . between state actors and privately owned and publicly 

traded companies.” Id. at 17a. Upon receipt of Collazo’s appeal, the OOR invited 

the parties to supplement the record and to submit legal argument to support their 

positions, and it directed the Board to notify any third parties of their ability to 

participate in the appeal. Id. at 18a-19a. In response to the OOR’s request, the Board 

submitted its legal argument with an affidavit executed by the Board’s Deputy Chief

Counsel, Stephen Cook, id. at 28a-33a, and Collazo submitted his argument. Id. at 

34a-37a. 

In its final determination, the OOR first dismissed part of Collazo’s 

appeal because Collazo attempted to modify the record request before the OOR by

seeking “policy documents which will clarify and address the convoluted 
3

relationship that exists . . . between state actors and privately owned and publicly 

traded companies” when his initial request to the Board sought documents and 

policies of the Board regarding “the scope of [its] operations in exercising complete 

control [over] casinos and gaming.” Id. at 5a-6a. This Court agrees that Collazo 

attempted to modify his record request before the OOR by changing the records 

requested, and the OOR did not err in refusing to address the altered request.3 When 

seeking public records, Section 703 of the RTKL, 65 P.S. § 67.703, provides that a 

requester must file a “written request [which] should identify or describe the records 

sought with sufficient specificity to enable the agency to ascertain which records are 

being requested . . . .” At that point, the request is fixed and the requester cannot 

change the nature of his request. Dep’t of Corr. v. Disability Rights Network of Pa., 

35 A.3d 830, 833 (Pa. Cmwlth. 2012). 

Second, the OOR dismissed part of Collazo’s request because he listed 

16 questions and the OOR is without authority to refashion the questions into a 

request for records. R.R. at 6a-7a. The OOR, in its final determination, properly 

concluded that a list of questions is not a record request and cannot be refashioned 

as such when it dismissed this part of Collazo’s request. See Pa. Tpk. Comm’n v. 

Murphy, 25 A.3d 1294 (Pa. Cmwlth. 2011) (affirming OOR denial of appeal 

including that questions do not trigger a response under the RTKL); Pa. State Police 

v. Office of Open Records, 995 A.2d 515, 516 (Pa. Cmwlth. 2010) (explaining that 

the General Assembly did not, in the RTKL, empower the OOR to refashion the 

 

3 Likewise, to the extent Collazo attempts to do the same here, see infra note 5, this Court 

will not address Collazo’s attempt when this Court’s function is to review the OOR’s final 

determination.
4

record request); see also Gingrich v. Pa. Game Comm’n (Pa. Cmwlth. No. 1254 C.D.

2011, filed January 12, 2012) slip op. at 6.

4

 

Third, the OOR denied Collazo’s request for “documents or policies of 

the [Board]” that “exercise complete control over gaming” in Pennsylvania because 

the Board demonstrated, through the averments in the affidavit, that “it does not 

possess records responsive to the request.” R.R. at 8a. Before this Court, Collazo 

asserts that the OOR erred when it “summarily denied” his request for “policy 

documents assuring the integrity of gaming in the Commonwealth.” Petition for 

Review ¶ 3.5 The Board counters that Collazo has failed to address the reasons that 

 

4 An unreported opinion of this Court may be cited for its persuasive value pursuant to 

Commonwealth Court Internal Operating Procedures § 414(a), 210 Pa. Code § 69.414(a). 

5 Collazo provides the following statement of questions for our consideration:

A. Whether [the Board] as a state actor and the sole regulatory agent 

of the gaming industry in the Commonwealth of Pennsylvania 

pretextually denied [Collazo’s] request for applicable statutes or 

policy documents which permits [the Board] as a state actors 

[sic] and functioning under color of law, sovereign immunity 

and Eleventh Amendment protection to extend those protections 

to privately owned and publicly traded corporations at the mere 

issuance of a license . . . . 

B. Whether policy documents related to employees or appointed 

officials of the Commonwealth engaged in business transactions 

and private arrangements with for profit corporations accruing 

from their official position of authority which are permitted and 

are not in violation of Subchapter K. Code of Conduct for 

Appointed Officials and State Employees 7.151 were summarily 

denied by the [Board] and OOR . . . . 

C. Whether [the Board] as the sole regulatory agent over the 

privately owned gaming industry, pretextually denied 

[Collazo’s] request for applicable statutes or policy documents 

establishing that its presence acting under color of law, 
5

the OOR denied his request for relief in its final determination and, therefore, has 

waived review of those issues by this Court. Board’s Brief at 9. The Board further 

explains that because Collazo has failed to raise any of the OOR’s reasons for 

denying his request, this appeal is improper and this matter should be dismissed. Id. 

Though the Board is correct that Collazo has not specifically identified any part of 

the OOR’s final determination to which he objects before this Court, here we can 

engage in an adequate review of the denial based on the only reason stated for the 

denial, which is that the records requested do not exist.

Collazo appears to argue that the Board and the OOR erred when they

denied him access to the records he requested, i.e., documents or policies of the 

Board that “exercise complete control” over gaming in Pennsylvania. R.R. at 9a. 

The Board responded that “[t]here are no documents or policies of the [Board] that 

exercise ‘complete control’ over gaming in the Commonwealth of Pennsylvania.” 

R.R. at 13a. In support, the Board provided an affidavit “subject to penalties of 18 

Pa. C.S. § 4904” explaining:

The Pennsylvania Gaming Control Board operates 

primarily under the provisions of the Pennsylvania Race

[H]orse Development and Gaming Act[6]. . . [which] gives 

the Board regulatory authority over the authorization, 

operation and play of slot machines and table games. The 

Board does not hold an ownership interest in any of its 

licensed facilities. In fact, the Board and its staff are 

prohibited from having a financial interest in gaming 

companies it regulates. . . . 

 

sovereign and Eleventh Amendment immunity, while operating 

on privately owned properties, constitutes non-state action. 

Collazo’s Brief at 3.

6

4 Pa. C.S. §§ 1101-1904. 
6

There are no provisions in the Gaming Act or the 

Board’s regulations that permit the Board to insert itself 

into a casino’[s] management of its business, so long as 

the casino complies with requirements under the Gaming 

Act and the Board’s regulations set in place to ensure the 

integrity of gaming in the Commonwealth. 

The Board maintains numerous policies and 

regulations, many of which can be found on the Board’s 

website. . . .None of these policies and regulations give the 

Board complete control of Pennsylvania Casinos. Rather, 

these policies pertain to technical submissions, integrity 

requirements, approved table and slot machine play, 

surveillance video requirements, and the like.

R.R. at 32a-33a (emphasis added). Based on these averments, the Board has asserted 

that the records Collazo seeks, documents and policies showing complete control 

over gaming in Pennsylvania, do not exist. 

The burden of proving that a document does not exist is on the agency 

responding to the request. Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. 

Cmwlth. 2001) (noting that an agency is not required to create a record if the 

requested record does not exist); see Moore v. Office of Open Records, 992 A.2d 

907, 909 (Pa. Cmwlth. 2010) (explaining that the standard is whether the requested 

record is in existence and in the possession of the Commonwealth agency at the time 

of the request). To sustain its burden of proof, an agency may provide a sworn 

affidavit or statement made under the penalty of perjury as competent evidence to 

show that a record does not exist. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 

520-21 (Pa. Cmwlth. 2011); Moore, 992 A.2d at 909 (stating that an agency may 

submit an affidavit to satisfy its burden of proof). 

Here, the Board met its burden of showing that it does not have records 

responsive to Collazo’s request. The affidavit provided that by law, the Board and 
7

its staff cannot have a financial interest in the gaming companies it regulates; the 

Board does not have the authority to insert itself into a “casino[’s] management of 

its business”; and none of the Board’s policies and regulations give it “complete 

control of Pennsylvania casinos.” R.R. at 32a-33a. There is no evidence to suggest 

that the Board acted in bad faith or that the responsive policies or other records do

exist. See McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Cmwlth. 

2014) (indicating that where no evidence has been presented to show that the agency 

acted in bad faith, the averments in the agency’s affidavit should be accepted as true). 

Therefore, the OOR did not err when it accepted the averments in the affidavit as 

true and concluded that the Board met its burden of showing that it does not possess 

records responsive to the request because no such records exist. 

Accordingly, we affirm. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ruben M. Collazo, :

Petitioner :

:

v. :

:

Pennsylvania Gaming Control Board, : No. 244 C.D. 2018

Respondent :

PER CURIAM 

O R D E R

AND NOW, this 28th day of December, 2018, the January 24, 2018 

final determination of the Office of Open Records is AFFIRMED.