IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip Jensen, :

Petitioner :

:

v. :

:

Pennsylvania Department of :

Corrections (Office of Open Records), : No. 317 C.D. 2023

Respondent : Submitted: February 6, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: March 5, 2024

Philip Jensen (Jensen), pro se, petitions this Court for review of the 

Office of Open Records’ (OOR) March 17, 2023 Final Determination (Final 

Determination) denying and dismissing Jensen’s appeal from the Pennsylvania

Department of Corrections’ (Department) denial of his Right-to-Know Law 

(RTKL)1request (Request). Jensen presents three issues for this Court’s review: (1) 

whether the OOR erred and denied Jensen due process by relying on the 

Department’s response and affidavit without affording Jensen an opportunity to 

respond; (2) whether the OOR erred by crediting and relying on the Department’s 

conclusory and generalized affidavit and failing to inquire who in the 

Commonwealth of Pennsylvania (Commonwealth) would have responsive records; 

and (3) whether the OOR erred by failing to find that the Department acted in bad 

faith, and denying the Request based on the Department’s representations that it

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

contacted a source that would not possess such records. After review, this Court 

affirms.

Jensen is an inmate at the State Correctional Institution at Houtzdale. 

On January 20, 2023, the Department received the Request seeking, in pertinent part, 

“[a]ll line entr[ies]/financial ledger[s] of December, 2021 ‘custodial account’ [for] 

resources of the [Department] for prison inmates.” Certified Record (C.R.) Item 1, 

OOR Exhibit 1, at 9. Jensen attached relevant portions of the Commonwealth’s 

Comprehensive Annual Financial Report For the Fiscal Year Ended June 30, 2020

(Financial Report), which describes “[t]he [c]ustodial [a]ccounts” as “a custodial 

fund [that] represents the combined resources held by the [Department] for prison 

inmates[.]” C.R. Item 1 at 11. On January 24, 2023,2the Department denied the 

Request pursuant to Section 703 of the RTKL, 65 P.S. § 67.703, on the basis that the 

Request lacked required specificity.

On February 13, 2023, Jensen appealed from the Department’s denial 

to the OOR arguing that the Request was sufficiently specific. Jensen referenced his 

research, attached an excerpt from the Financial Report, and argued that records 

responsive to the Request should exist. Further, Jensen argued that the Department 

acted in bad faith by denying his Request. 

By February 23, 2023 correspondence to Jensen and the Department, 

the OOR invited both parties to supplement the record and directed the Department 

to notify any third parties of their ability to participate in the appeal. See Section 

1101(c) of the RTKL, 65 P.S. § 67.1101(c). On March 6, 2023, the Department

submitted a position statement in response to the appeal stating that it sent a copy to 

2 The Department had exercised a 30-day extension to respond as authorized by Section 

902(b) of the RTKL, 65 P.S. § 67.902(b).
3

Jensen by regular mail; however, Jensen denies receiving the position statement.

3

See C.R. Item 4, OOR Ex. 4, at 5. The Department summarized, based on Jensen’s 

assertions in his appeal, that the Department conducted a good faith search and 

consulted with relevant Department personnel to confirm that the Department was

not in possession, custody, or control of any records responsive to the Request. The 

Department also submitted the attestation of its Open Records Officer Andrew 

Filkosky (Filkosky) (Filkosky Attestation).

4

 The Filkosky Attestation stated, in 

relevant part:

5. In response to [] Jensen’s [] Request, this office 

contacted the Director of the Department’s Bureau of 

Administration which is responsible for all departmental 

budget and fiscal matters.

6. That official explained that neither she nor officials 

within her office understand what records [] Jensen is 

referring to and seeking access to and therefore they 

cannot conduct a search for responsive records.

7. As such, this office issued a Final Response to [] Jensen, 

dated January 24, 2023, indicating that his [] Request 

lacked sufficient specificity in order to enable the 

Department to conduct a good faith search. . . .

8. Instead of submitting a follow-up Request sufficiently 

describing the records to which he seeks access, I am 

aware that [] Jensen has initiated an RTKL [a]ppeal to the 

[OOR] challenging the Department’s denial of his 

3

In support of this contention, Jensen attached to his Petition for Review (Petition) to this 

Court a copy of his incoming mail log from the Department (Mail Log), which purportedly lists

all incoming mail Jensen received between February 1, 2023, and March 21, 2023. The March 21, 

2023 entry identifies the Department as a document’s sender. On the Mail Log Jensen attached to

his Petition, Jensen circled that entry and wrote: “This mailing was not it[.]” Petition, Ex. E at 1. 

The Mail Log also reflects Jensen’s receipt of mail from the “Commonwealth of Pennsylvania” on 

the same date. The Certified Record contains no further information regarding the nature of the 

incoming mail.

4 The Filkosky Attestation was made subject to the penalties under Section 4904 of the 

Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities.
4

requested access, and arguing that his Request was 

sufficiently specific.

9. On [a]ppeal, [] Jensen repeatedly refers to and describes 

the records sought as being from one account, the 

“custodial account” containing the combined resources of 

the Department for all prison inmates. . . . 

10. In response to [] Jensen’s RTKL [a]ppeal filing, I 

shared another discussion with the Director of the 

Department’s Bureau of Administration where I extended 

[] Jensen’s assertions on [a]ppeal.

11. In response, the Director explained to me that []Jensen 

is basing his [] Request on a flawed premise; there is no 

one “custodial account” containing the combined 

resources of the Department for all of its inmates, and 

therefore the entries for December 2021 for that account 

that does not exist likewise do not exist.

12. Therefore, after conducting a good faith search in 

response to [] Jensen’s [] Request as described above, I 

can state here that the Department does not possess any 

responsive records.

C.R. Item 4 at 6-7. The OOR’s docket does not reflect that Jensen sought to 

supplement the record or otherwise respond to the OOR’s February 23, 2023 

correspondence.

On March 17, 2023, the OOR issued its Final Determination denying 

Jensen’s appeal, reasoning:

In the absence of any evidence that the Department has 

acted in bad faith or that responsive records do, in fact, 

exist, “the averments in the [Filkosky Attestation] should 

be accepted as true.” McGowan v. Pa. Dep’t of Env[’]t

Prot., 103 A.3d 374, 382-83 (Pa. [Cmwlth.] 2014) (citing 

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

[Cmwlth.] 2013)).

Here, the Filkosky Attestation explains how the 

Department undertook a search of its records in sufficient 

detail. Specifically, in response to the Request and on 

appeal, [Filkosky] explains how he consulted more than 
5

once with the Director of the Department’s Bureau of

Administration, which is responsible for all departmental 

budget and fiscal matters. Filkosky Attestation ¶¶ 5, 10. 

Further, the Filkosky Attestation sufficiently explains that 

there is no one “custodial account” containing the 

combined resources of the Department for all its inmates, 

and therefore, the entries for December 2021 that [Jensen] 

seeks does [sic] not exist. Filkosky Attestation ¶¶ 11-12.

The OOR recognizes that the Department cannot provide 

access to a record that does not exist in its possession. 

Accordingly, the Department’s submissions are sufficient 

to prove that it conducted a good faith search and that there 

are no records responsive to the Request in the

Department’s possession, custody, or control.

C.R. Item 5, OOR Ex. 5, at 6. In a footnote, the OOR observed: “Despite [Jensen’s] 

arguments, the OOR makes no determination as to whether records should exist, 

only that the Department does not possess responsive records.” Id. n.3. With respect 

to Jensen’s allegations of bad faith, the OOR concluded:

[T]he evidence shows that the Department assessed and 

processed the Request and issued its final response to 

[Jensen]. Further, on appeal, the Department proved that 

it conducted a good faith search by consulting relevant 

Department personnel to confirm that it does not have 

responsive records in its possession, custody or control. 

Accordingly, the OOR declines to find that the 

Department acted in bad faith. 

Id. at 7. Jensen appealed to this Court.5

Initially, the RTKL mandates:

[A] “Commonwealth agency [(i.e., the Department)] shall 

provide public records in accordance with [the RTKL].” 

[Section 301 of the RTKL,] 65 P.S. § 67.301. A record 

“in the possession of [a] Commonwealth agency . . . shall 

be presumed to be a public record” unless it is exempt 

5

“[This Court’s] standard of review of a final determination issued by the OOR is de novo

and our scope of review is plenary.” Pa. Tpk. Comm’n v. Elec. Transaction Consultants Corp., 

230 A.3d 548, 556 n.3 (Pa. Cmwlth. 2020).
6

under Section 708 [of the RTKL, 65 P.S. § 67.708], [as] 

privileged, or exempt from disclosure under other federal 

or state law or judicial order. [See Sections 305(a) and 701 

of the RTKL, 65 P.S.] §§ 67.305(a), 67.701. At the initial 

request stage, an agency is required to assess the public 

status of requested records, and, if applicable, specify 

reasons for denying access with “citation of supporting 

legal authority.” [Section 903 of the RTKL, 65 P.S.] § 

67.903. 

McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 400 (Pa. 2021).

Jensen first argues that the OOR erred and denied Jensen due process 

by relying on the Department’s response and affidavit without affording Jensen an 

opportunity to respond. However, the OOR’s February 23, 2023 correspondence

afforded Jensen the opportunity to participate, and he did not submit evidence or 

argument in response thereto. Importantly,

“[n]either the RTKL nor the courts have extended a 

right to discovery or a right to due process to a 

requesting party in a[n] RTKL action.” Sherry v. 

Radnor Twp. Sch. Dist., 20 A.3d 515, 519 (Pa. Cmwlth. 

2011). Section 1309 of the RTKL, 65 P.S. § 67.1309, 

provides that “[t]he provisions of [the Administrative 

Agency Law] (relating to administrative law and 

procedure) shall not apply to [the RTKL] unless 

specifically adopted by regulation or policy.” Thus, “the 

provisions of the Administrative Agency Law[, 2 Pa.C.S. 

§§ 501-508, 701-704,] requiring an evidentiary hearing do 

not apply.” Sherry, 20 A.3d at 519 . . . .

City of Harrisburg v. Prince, 288 A.3d 559, 578 (Pa. Cmwlth. 2023) (emphasis 

added). 

The process due in this statutory scheme is notice and an 

opportunity to present evidence to the fact-finder.

Wishnefsky v. [Pa.] Dep’t of Corr., 144 A.3d 290 (Pa. 

Cmwlth. 2016). A requester has no right to cross-examine 

those who may oppose access to the requested records.

Sherry. Further, it is well[ ]established that [the] OOR is 

not required to hold a hearing, as a decision to hold a 
7

hearing is a matter of discretion. Section 1102(a) of the 

RTKL, 65 P.S. § 67.1102(a)[.]

UnitedHealthcare of Pa., Inc. v. Baron, 171 A.3d 943, 952 (Pa. Cmwlth. 2017).

“Generally, a requester’s due process rights are not violated when [the] OOR 

does not allow a requester to challenge or respond to submissions of direct 

interest participants.” Id. (emphasis added); see also Nguyen Vu v. Pa. Bd. of Prob. 

& Parole, 200 A.3d 627 (Pa. Cmwlth. 2018). Thus, even if Jensen’s assertion that 

he did not receive the Department’s position statement and the Filkosky Attestation

is true, the OOR did not deny Jensen due process because Jensen did not have a due 

process right to respond thereto. Accordingly, Jensen’s argument that the OOR erred 

by relying on the Department’s response and affidavit, and denied him due process 

by denying Jensen an opportunity to respond is meritless. 

Jensen next asserts that the OOR erred by crediting and relying on the 

Department’s conclusory and generalized affidavit and failing to inquire who in the 

Commonwealth would have responsive records. However, this Court has explained 

that “[a]n agency may meet its burden [of proving a good faith search] through an 

unsworn attestation or a sworn affidavit.” Glob. Tel*Link Corp. v. Wright, 147 A.3d 

978, 980 (Pa. Cmwlth. 2016) (quoting W. Chester Univ. of Pa. v. Schackner, 124 

A.3d 382, 393 (Pa. Cmwlth. 2015)). “The affidavits [demonstrating an agency’s 

good faith search] must be detailed, nonconclusory, and submitted in good 

faith. . . . Absent evidence of bad faith, the veracity of an agency’s submissions 

explaining reasons for nondisclosure should not be questioned.” McGowan, 103 

A.3d at 381 (quoting Scolforo, 65 A.3d at 1103 (citation omitted)).

“As part of a good faith search, [an agency’s] open records officer has 

a duty to advise all custodians of potentially responsive records about the request, 

and to obtain all potentially responsive records from those in possession.” 

Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 185 A.3d 1161, 1171-72 (Pa. 
8

Cmwlth. 2018) (Uniontown Newspapers I), aff’d, 243 A.3d 19 (Pa. 2020)

(Uniontown Newspapers II). In Uniontown Newspapers II, the Pennsylvania 

Supreme Court agreed that “[a] good faith response – either to produce records or 

assert an exemption – cannot occur absent a good faith search, followed by collection 

and review of responsive records, so an agency has actual knowledge about the 

contents of the relevant documents.” Id. at 28-29 (quotation marks omitted). The 

Uniontown Newspapers II Court “reject[ed] [the Department’s] contention [that] the 

open records officer fulfills his or her obligation simply by relying on the 

representations of others without inquiring as to what investigation was made and 

without reviewing the records upon which the individual responding to the request 

relied.” Id. at 28.

In the instant matter, the OOR reviewed the Filkosky Attestation and 

concluded that it was sufficiently detailed and reflected the Department’s good faith 

search for the records Jensen requested. In fact, the Filkosky Attestation clearly 

describes the efforts Filkosky took to determine whether the requested information 

exists and his basis for concluding that it does not exist. Specifically, Filkosky twice 

approached the Director of the Department’s Bureau of Administration who 

confirmed that “there is no one ‘custodial account’ containing the combined 

resources of the Department for all of its inmates, and therefore the entries for 

December 2021 for that account that does not exist likewise do not exist.” C.R. Item 

4 at 7. This Court agrees that the Filkosky Attestation is sufficiently detailed to 

support the Department’s denial. Thus, Jensen’s argument fails.

Jensen also contends that the OOR erred by failing to find that the 

Department acted in bad faith, and denied the Request based on the Department’s 

representations that it contacted a department that would not possess such records.

In the RTKL context, “bad faith” does not require a 

showing of fraud or corruption. The lack of good faith 
9

compliance with the RTKL and an abnegation of 

mandatory duties under its provisions rise to the level of

bad faith. [Off. Of the Dist. Att’y of Phila. v. Bagwell, 155 

A.3d 1119 (Pa. Cmwlth. 2017)] (affirming trial court’s 

award of $500[.00] civil penalty for bad faith);

Chambersburg Area Sch. Dist. v. Dorsey, 97 A.3d 1281 

(Pa. Cmwlth. 2014) (agency failure to review responsive 

records was grounds from which fact-finder could discern

bad faith); Staub v. City of Wilkes-Barre (Pa. Cmwlth.

[No. 2140 C.D. 2012], filed [Oct. 3,] 2013) . . . (affirming 

attorney fee award for agency failure to confer with 

contractor before responding to request).[6] The RTKL

reserves bad faith determinations for disposition by 

Chapter 13 [c]ourts [(i.e., the Commonwealth Court and 

county common pleas courts)].

The RTKL requires an agency to make a good faith effort 

to find and obtain responsive records before denying 

access. “[A]n agency [may not] avoid disclosing existing 

public records by claiming, in the absence of a detailed 

search, that it does not know where the documents are.” 

Pa. State Police v. McGill, 83 A.3d 476, 481 (Pa. Cmwlth. 

2014) (emphasis added). Where an agency did not 

perform a search of its records under the RTKL until the 

matter was [i]n litigation, the agency denied access in 

willful disregard of the public’s right to public records. 

Parsons v. Pa. Higher Educ. Assist. Agency (PHEAA), 910 

A.2d 177 (Pa. Cmwlth.) (en banc) . . . (agency failure to 

review records before a hearing on denial showed willful 

violation of former [RTKL]).

A requester bears the burden of proving an agency 

committed bad faith. Evidence of bad faith is required. 

After-discovered records are a type of evidence from 

which a court may discern bad faith. Evidence of an 

agency’s failure to perform its mandatory duties, including 

a failure to search its records prior to a denial of access, 

may suffice.

Uniontown Newspapers I, 185 A.3d at 1170-71 (citations and footnote omitted).

6 Unreported decisions of this Court, while not binding, may be cited for their persuasive 

value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa. 

Code § 69.414(a).
10

With respect to Jensen’s bad faith allegations, the OOR concluded:

Here, the evidence shows that the Department assessed 

and processed the Request and issued its final response to

[Jensen]. Further, on appeal, the Department proved that 

it conducted a good faith search by consulting relevant 

Department personnel to confirm that it does not have 

responsive records in its possession, custody or control.

C.R. Item 5 at 7. This Court agrees. The Filkosky Attestation is detailed and 

nonconclusory. There is no record evidence of bad faith. Absent such evidence, this 

Court cannot question the veracity of the Department’s submissions explaining its

reasons for nondisclosure. See McGowan. Thus, the OOR did not err by crediting 

and relying on the Filkosky Attestation, and Jensen’s bad faith allegations are 

without merit.

Finally, Jensen argues in his brief that his Request was sufficiently 

specific.7 However, Jensen did not raise that issue in his Statement of Questions 

7 This Court has explained:

Where a requester seeks to gain access to information under the 

RTKL, Section 703 of the RTKL puts the initial burden on the 

requester to provide a written request that “should identify or 

describe the records sought with sufficient specificity to enable the 

agency to ascertain which records are being requested and shall 

include the name and address to which the agency should address its 

response.” 65 P.S. § 67.703; Mollick [v. Twp. of Worcester], 32 

A.3d [859,] 871 [(Pa. Cmwlth. 2011)]. In determining whether a 

request is sufficiently specific, an agency should rely on the 

common meaning of words and phrases, be mindful of the remedial 

purpose of the RTKL, and construe the specificity of the request in 

the context of the request, rather than envisioning everything the 

request might conceivably encompass. P[a.] State Police v. Off[.]

of Open Rec[s.], 995 A.2d 515, 517 (Pa. Cmwlth. 2010). The fact 

that a request is burdensome will not, in and of itself, deem the 

request to be overbroad. Dep[’t] of Env[’t] Prot[.] v. Legere, 50 

A.3d 260, 265 (Pa. Cmwlth. 2012). 

Bagwell, 155 A.3d at 1142-43 (emphasis added).
11

Involved, and it is not fairly suggested thereby. Accordingly, Jensen waived that 

issue. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in 

the statement of questions involved or is fairly suggested thereby.”).8

“When considering a challenge to the specificity of a request under 

Section 703 of the RTKL, this Court employs a three-part balancing 

test[.]” Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 

1121, 1124 (Pa. Cmwlth. 2015). The test examines “the extent to 

which the request sets forth[:] (1) the subject matter of the request; 

(2) the scope of the documents sought; and (3) the timeframe for 

which records are sought.” Id. “The subject matter of the request 

must identify ‘the transaction or activity’ of the agency for which 

the record is sought[]” and “should provide a context to narrow the 

search.” Id. at 1125 (quoting Section 102 of the RTKL, 65 P.S. § 

67.102). In terms of scope, the request “must identify ‘a discrete 

group of documents, either by type . . . or by recipient.’” [Pittsburgh 

Post-Gazette, 119 A.3d at 1125] (quoting Carey v. [Pa.] Dep’t of 

Corr., 61 A.3d 367, 372 (Pa. Cmwlth. 2013)). Lastly, “[t]he 

timeframe of the request should identify a finite period of time for 

which records are sought.” Pittsburgh Post-Gazette, 119 A.3d at 

1126; see also . . . Bagwell, 155 A.3d [at] 1145 . . . (A request is 

sufficiently specific where it enumerates a “clearly[-]defined 

universe of documents.”); Askew v. Pa. Off[.] of the Governor, 65 

A.3d 989, 992 (Pa. Cmwlth. 2013) (A request lacks specificity 

where “it is open-ended in terms of a timeframe[ and] overly broad 

in the scope of documents sought[.]”).

Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 179 (Pa. Cmwlth. 2019) (footnote omitted). 

A requester’s request lacks specificity where “it necessitates traditional legal research and analysis, 

not only to ascertain that which is being requested, but also to determine whether a particular law 

and/or document possesses the legal significance necessary to make it responsive to the request.” 

Askew, 65 A.3d at 994. Further, this Court has explained that an RTKL request is insufficiently 

specific where it requires an agency to review files and make judgments regarding “the relation of 

the documents to the specific request.” Legere, 50 A.3d at 264; see also Dep’t of Corr. v. St. 

Hilaire, 128 A.3d 859 (Pa. Cmwlth. 2015).

8 Notwithstanding, if this Court were to consider this issue, the matter is moot. According 

to the Filkosky Attestation, in a subsequent conversation with the Director of the Department’s 

Bureau of Administration, the Director determined that the confusion surrounding Jensen’s

Request arose from the fact that Jensen sought a document that does not exist. Thus, even 

assuming that Jensen’s Request was sufficiently specific, based on the record, there is simply no 

such responsive document the Department can produce.
12

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

affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip Jensen, :

Petitioner :

:

v. :

:

Pennsylvania Department of :

Corrections (Office of Open Records), : No. 317 C.D. 2023

Respondent :

O R D E R

AND NOW, this 5

th day of March, 2024, the Office of Open Records’ 

March 17, 2023 Final Determination is affirmed.

_________________________________

ANNE E. COVEY, Judge