IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel Ocasio, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 419 C.D. 2017

Respondent : Submitted: October 6, 2017

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 7, 2017

Gabriel Ocasio (Ocasio), pro se, petitions this Court for review of the 

Pennsylvania Office of Open Records’ (OOR) December 27, 2016 Final Determination 

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

of his Right-to-Know Law (RTKL)1request (Request). The sole issue before this Court 

is whether DOC met its burden of proving it did not possess the responsive record. 

Upon review, we affirm.

Ocasio is an inmate at the State Correctional Institution at Rockview (SCIRockview). On October 28, 2016, Ocasio submitted his Request to DOC’s RTKL 

Office seeking: “‘Judgment of Sentencing Order [(Sentencing Order)]’ and ‘DC-300B’

[(Court Commitment)] Form.” Certified Record (C.R.) Tab 1, Item 4. By November 

18, 2016 letter,2 DOC’s RTKL Office produced Ocasio’s DC-300B Form, but denied 

his Request relative to the Sentencing Order, declaring:

 

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

2 On October 31, 2016, DOC’s RTKL Office permissibly extended its final response date to 

December 2, 2016. See C.R. Tab 1, Item 3.
2

The record[] that you requested do[es] not currently exist in 

the possession of [DOC]. When responding to a request for 

access, an agency is not required to create a record which 

does not currently exist or to compile, format or organize a 

public record in a manner in which it does not currently 

compile, format or organize the public record. [Section 705 

of the RTKL,] 65 P.S. § 67.705; [s]ee Moore v. Office of 

Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010) 

(‘[DOC] cannot grant access to a record that does not exist. 

Because under the current RTKL [DOC] cannot be made to 

create a record that does not exist, the OOR properly denied 

[the] . . . appeal.’); [s]ee also Bargaron v. Dep[’t] of Labor 

[&] Indus[.], 720 A.2d 500 (Pa. Cmwlth. 1998). 

C.R. Tab 1, Item 3. 

On November 30, 2016, Ocasio appealed to the OOR, asserting that the 

Sentencing Order is a public record: 

The requested record(s) contained accessible information 

regarding [Ocasio’s] [c]riminal [c]ourt case and Sentencing 

Order, which do not fall[] under any of the [RTKL] 

exemption[s]. Inasmuch as the request[ed] information only 

reflects [Ocasio’s] name, crime committed, and Sentencing 

Order [sic]. No address of [Ocasio] and/or anyone else for 

that matter[], which meets the [RTKL] requirements for 

public records [sic]. Moreover, the burden of proof falls 

upon the agency denying the record(s), pursuant to [Section 

708(a) of the RTKL,] 65 P.S. [§] 67.708(a), not [Ocasio].

C.R. Tab 1, Item 1. Ocasio specifically challenged DOC’s denial on the basis that, 

since he could not have been admitted to DOC’s facility unless the sheriff or 

transporting officer provided the Sentencing Order to DOC’s records officer, “[DOC] 

should have [it] in [its] possession . . . .” C.R. Tab 1, Item 1.

The OOR invited the parties to supplement the record. See C.R. Tab 2.

By December 6, 2016 letter, DOC again declared that “the [Sentencing Order] does not 

exist within the possession, custody or control of [DOC],” and enclosed an Agency 

Attestation of Nonexistence of Record (Attestation) issued by SCI-Rockview’s records 

supervisor Kathleen Witmer (Witmer). C.R. Tab 3. Therein, Witmer stated under 
3

penalty of perjury that, “[b]eyond the DC-300B, I have determined that no responsive 

records exist within [DOC’s] custody, possession or control.” C.R. Tab 3. Ocasio did 

not challenge the Attestation. See Ocasio Br. at VIII; see also Ocasio Br. at 3. On 

December 27, 2016, the OOR issued its Final Determination denying Ocasio’s appeal, 

stating:

Under the RTKL, an affidavit may serve as sufficient 

evidentiary support for the nonexistence of records. See 

Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa.

C[mwlth.] 2011); Moore . . . , 992 A.2d [at] 909 . . . . In the 

absence of any competent evidence that [DOC] acted in bad

faith or that records exist in the possession of [DOC], ‘the 

averments in [the [A]ffidavit] should be accepted as true.’ 

McGowan v. Pa. Dep’t of Envtl. Prot., 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, [DOC] has met its burden of 

proving that no records exist in [DOC’s] possession, custody 

or control. Accordingly, the appeal is denied.

C.R. Tab 4 at 1-2 . Ocasio appealed to this Court.3

Ocasio argues that DOC must possess his Sentencing Order since the 

Sentencing Code4and DOC’s regulations and policies relating to information exchange 

and inmate reception prohibit his incarceration without it. Ocasio alternatively

contends that “the OOR failed to recognize[] . . . [Section 506(d)(1) of the RTKL,] 65 

[P.S. §] 67.506(d)(1) [(regarding records in the possession of a third party contracted 

 

3

“[A] reviewing court, in its appellate jurisdiction, independently reviews the OOR’s orders 

and may substitute its own findings of fact for that of the agency.” Moore, 992 A.2d at 909 n.5 

(quoting Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 

453 (Pa. 2013). “[A] court reviewing an appeal from an OOR hearing officer is entitled to the broadest 

scope of review.” Moore, 992 A.2d at 909 n.5 (quoting Bowling, 990 A.2d at 820).

4

42 Pa.C.S. §§ 9701-9799.9. Ocasio specifically refers in his brief to Section 9764(a)(8) of 

the Sentencing Code which states: Upon commitment of an inmate to the custody of DOC, the sheriff 

or transporting official shall provide to the institution’s records officer or duty officer “[a] copy of the 

sentencing order . . . filed against the inmate which the county has notice.” 42 Pa.C.S. § 9764(a)(8).
4

to perform a governmental function),

5

] which relates to [the] Request.” Ocasio Br. at 

3; see also Ocasio Br. at 6-7. Ocasio concludes that “[DOC] did not necessarily have 

to have the [Sentencing Order] in [its] possession, . . . [it] could have retrieve[d] it from 

the courts with whom [it is] contracted[.]” Ocasio Br. at 7. We disagree.

Initially, to the extent that Ocasio is arguing that his confinement is invalid 

because it is illegal for DOC to hold him without a Sentencing Order,6in Moore, this 

Court held that “an appeal from an OOR order denying [an inmate’s] request for 

access to a public record is not the proper forum to challenge the constitutionality 

of his continued incarceration.” Id. at 910 (emphasis added); see also Scott v. Pa. 

Dep’t of Corr. (Pa. Cmwlth. No. 133 C.D. 2016, filed January 27, 2017) (“It is not the 

Court’s role to help a litigant find a document or to review the legality of a criminal 

prosecution or conviction.”), slip op. at 3; Whitaker v. Pa. Dep’t of Corr. (Pa. Cmwlth. 

No. 1781 C.D. 2012, filed March 8, 2013) (“[T]he RTKL is not a vehicle through which 

an individual can collaterally attack the legality of his criminal confinement. The 

RTKL does not contain any statutory provisions or procedures providing an individual 

with a right or avenue to declare his underlying judgment of sentence a legal nullity.”), 

 

5 Section 506(d)(1) of the RTKL states: 

A public record that is not in the possession of an agency but is in the 

possession of a party with whom the agency has contracted to perform 

a governmental function on behalf of the agency, and which directly 

relates to the governmental function and is not exempt under [the 

RTKL], shall be considered a public record of the agency for purposes 

of [the RTKL].

65 P.S. § 67.506(d)(1).

6 Although Ocasio did not directly raise this argument in his brief, he asserted in his Petition 

for Review that DOC failed to discharge him from custody after concluding that it did not possess his 

Sentencing Order. See Petition for Review at 2. Moreover, DOC responded to that issue in its brief. 

See DOC Br. at 10-11. 
5

slip op. at 3.

7

 Accordingly, if Ocasio is seeking to use the RTKL to challenge his 

incarceration, this Court must affirm the OOR’s ruling. See Morrison v. Dep’t of Corr., 

162 A.3d 613 (Pa. Cmwlth. 2017).

If, however, Ocasio’s challenge is that the Request was improperly denied 

on the basis that DOC must have or can obtain the Sentencing Order, this Court has 

ruled:

Under Section 1102 of the RTKL, a requester and the 

assigned open records officer are permitted ‘to submit 

documents in support of their positions’ and ‘[t]he appeals 

officer may admit into evidence testimony, evidence and 

documents that the appeals officer believes to be reasonably 

probative and relevant to an issue in dispute.’ 65 P.S. §§ 

67.1102(a)(1) and (2). The attestation . . . of non-existence 

[is] certainly probative and relevant to the issue of the 

existence of [a] judgment of sentence.

Moore, 992 A.2d at 909 n.4. Moreover, 

the standard is whether such a record is in existence and in 

possession of the Commonwealth agency at the time of the 

[RTKL] request. [Here, DOC] searched its records and 

submitted [the Attestation] that it was not in possession of 

[Ocasio’s] [Sentencing Order] – that such a record does not 

currently exist. Th[at] statement[] [is] enough to satisfy 

[DOC’s] burden of demonstrating the non-existence of the 

record in question, and obviously [DOC] cannot grant access 

to a record that does not exist. Because under the current 

RTKL [DOC] cannot be made to create a record which does 

not exist, the OOR properly denied [Ocasio’s] appeal.

Id. at 909 (footnote omitted). 

 

7 We acknowledge that this Court’s unreported memorandum opinions may be cited “for 

[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Because Scott and Whitaker

involved incarceration challenges under the RTKL, the Court’s reasoning therein is persuasive to the 

extent Ocasio raises the same claim in the current action.
6

Finally, in Philadelphia District Attorney’s Office v. Stover (Pa. Cmwlth. 

No. 1952 C.D. 2016, filed September 12, 2017),

8

this Court held that since sentencing 

orders and DC-300B Court Commitment forms are records of the judiciary, they are 

exempt from disclosure under the RTKL by a non-judicial agency.9 In reaching its 

decision, the Stover Court declared:

‘In discerning whether records qualify as records ‘of’ a 

particular agency, we consider the subject-matter of the 

records. The location of the record or an agency’s possession 

does not guarantee that a record is accessible to the public; 

rather, the character of the record controls.’ Grine [v. Cnty. 

of Centre], 138 A.3d [88,] 94-95 (citations omitted). 

 

8 Because Stover involved the exact documents Ocasio requested in this case, and DOC 

produced the DC-300B Court Commitment form to Ocasio, the Stover Court’s reasoning is applicable 

and persuasive herein. Moreover, the OOR recently relied upon Stover to deny another inmate’s 

RTKL request for his sentencing order and DC-300B Court Commitment form. See Tyler v. Pa. 

Dep’t of Corr. (OOR Docket No. AP-2017-1805, filed October 24, 2017). Lastly, on October 3, 

2017, the Philadelphia District Attorney’s Office filed an application to report Stover, which is 

pending. 

9 The Stover Court reasoned:

Pursuant to the RTKL, a ‘judicial agency’ is defined as ‘[a] court of the 

Commonwealth or any other entity or office of the unified judicial 

system.’ Section 102 of the RTKL, 65 P.S. § 67.102. ‘[T]he RTKL 

offers limited access restricted by its terms to a defined type of records 

of judicial agencies. Thus, unlike records of Commonwealth or local 

agencies, where all records in their possession are presumed public, 

only ‘financial records’ of judicial agencies are accessible through the 

RTKL.’ Faulk [v. Phila. Clerk of Courts], 116 A.3d [1183,] 1187 (Pa. 

Cmwlth. 2015). To be sure, [S]ection 304 of the RTKL, 65 P.S. § 

67.304, provides that the records of a judicial agency are disclosable 

only to the extent that they are ‘financial records.’ Court of Common 

Pleas of Lackawanna C[nty.] v. Office of Open Records, 2 A.3d 810, 

813 (Pa. Cmwlth. 2010).

Id. slip op. at 6-7.
7

Slip op. at 6. Accordingly, even if DOC possessed Ocasio’s Sentencing Order, or could 

obtain it from Ocasio’s sentencing court, DOC would be prohibited from producing it 

pursuant to Ocasio’s Request.

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

___________________________

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

Gabriel Ocasio, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 419 C.D. 2017

Respondent :

O R D E R

AND NOW, this 7

th day of December, 2017, the Pennsylvania Office of 

Open Records’ December 27, 2016 Final Determination is affirmed.

___________________________

ANNE E. COVEY, Judge