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In Gates, when an inmate argued the non-existence of the sentencing order was grounds for his release, we explained this Court is not in a position to rule on the legality of incarceration when DOC does not have a copy of the sentencing order. See also Sturgis.
Summary of this case from Faulk v. Phila. Clerk of CourtsOpinion
No. 441 C.D. 2014
07-09-2014
Ricardo Gates, Petitioner v. Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Ricardo Gates (Requester) appeals from the Office of Open Records' (OOR) final determination that denied his appeal from the Pennsylvania Department of Corrections' (DOC) denial of his request under the Right-to-Know Law (RTKL). Requester sought the order of his sentencing or commitment. DOC denied the appeal, submitting an affidavit as to the non-existence of the records. Requester appeals, asserting DOC is required to possess the requested records, or his incarceration is invalid. Discerning no error below, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
Requester, an inmate incarcerated at State Correctional Institution-Dallas, submitted a request seeking his judgment of sentencing order, sentencing order and commitment order (Request). See Certified Record (C.R.) at Item No. 1. DOC responded, denying the Request because the records did not exist within its custody or control. With the denial, DOC included a verification from Records Supervisor, Diane Yale, attesting that the requested records do not exist.
Requester appealed to the OOR. He claimed DOC should have a copy of the requested records, possibly under another name; otherwise, his commitment is illegal. He explained he wanted the record ordering his commitment, by whatever name it exists. Requester did not explain the public nature of the records, or claim the records are public under the RTKL.
OOR issued a final determination upholding DOC's denial. In the final determination, OOR explained DOC met its burden of proving nonexistence by submitting an affidavit of its records custodian. OOR noted there is also no evidence the records are in possession of a third-party contractor.
Requester appealed OOR's final determination to this Court.
For a question of law under the RTKL, our scope of review is plenary. Dep't of Corr. v. Office of Open Records, 18 A.3d 429 (Pa. Cmwlth. 2011). In reviewing a final determination of OOR involving a Commonwealth agency, this Court "independently reviews the OOR's orders and may substitute its own findings of facts for [those] of the agency." Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) (en banc), aff'd, 75 A.3d 453 (Pa. 2013).
Under the RTKL, records in the possession of an agency are presumed to be public unless they are: (1) exempted by Section 708 of the RTKL; (2) protected by privilege; or (3) exempted "under any other Federal or State law or regulation or judicial order or decree." Section 305 of the RTKL, 65 P.S. §67.305. A Commonwealth agency like DOC bears the burden of proving a record is exempt from disclosure. Dep't of Pub. Welfare v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014) (en banc). An agency, rather than a requester, bears the burden of substantiating its denial on appeal to OOR. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011).
An attestation may constitute sufficient evidence of the nonexistence of records to sustain an agency's burden of proof. Id.; Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010). Based on the evidence submitted, OOR found that DOC established no responsive records exist, and denied the appeal on that basis. From our review of the attestation at issue, we agree.
DOC's Records Supervisor attested under 18 Pa. C.S. §4904 that the records, if they existed, would be within her custody. She specifically attested that she undertook a reasonable search for the requested records, and found no responsive records. This Court holds that such an attestation satisfies an agency's burden of proof as to nonexistence of records in a RTKL appeal. See, e.g., Hodges v. Dep't of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011); Moore.
On appeal, Requester does not challenge the OOR's final determination upholding DOC's denial of his request. Instead, Requester argues that because DOC is not in possession of a sentencing order, it has no authority to detain him. Requester asserts that he is serving an illegal sentence and asks this Court to release him from confinement.
Requester misapprehends the purpose of the RTKL. The RTKL is a statutory mechanism that allows citizens to obtain public records from the government. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010) (en banc), aff'd, 75 A.3d 453 (Pa. 2013) (explaining RTKL is designed to "scrutinize the actions of public officials, and make public officials accountable for their actions."). By contrast, "the 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." Whitaker v. Dep't of Corr., (Pa. Cmwlth., No. 1781 C.D. 2012, filed March 8, 2013), slip op. at 3-4, 2013 WL 3960981, *2 (unreported).
The RTKL, and statutory appeals thereunder, do not offer the remedies Requester seeks to utilize here. Rather, the Post-Conviction Relief Act is the exclusive state law remedy for inmates challenging legality of their sentences. Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001); see also Guarrasi v. Scott, 25 A.3d 394 (Pa. Cmwlth. 2011) (inmate seeking records under RTKL may not collaterally attack conviction). Moreover, Requester did not explain the public nature of the records he seeks as required by Section 1101(a) of the RTKL, 65 P.S. §67.1101(a). Padgett v. Pa. State Police, 73 A.3d 644 (Pa. Cmwlth. 2013) (requester must explain appeal grounds mandating disclosure).
Sections 9541 through 9546 of the Judicial Code, 42 Pa. C.S. §§9541-9546.
Our Superior Court recently addressed the effect that DOC's affidavit of nonexistence has upon a habeas corpus petition in Joseph v. Glunt, ___ A.3d ___, (Pa. Super., No. 899 WDA 2013, filed May 23, 2014). As support for his habeas corpus petition, the inmate submitted DOC's response to his RTKL request, asserting arguments similar to those raised by Requester here. Relevantly, when presented with DOC's affidavit that it did not possess the sentencing order, our Superior Court nonetheless upheld DOC's authority to detain inmate. --------
Requester may be entitled to the sentencing order under some other procedure. However, such a right does not arise under the RTKL, through which citizens have a right to access public records "open to the entire public at large." See, e.g., Coulter v. Pa. Bd. of Prob. & Parole, 48 A.3d 516, 519 (Pa. Cmwlth. 2012) ("home plans" of parolee requester are not accessible under RTKL though requester is subject of records; under the RTKL, a requester's identity is irrelevant). It is beyond this Court's purview to mandate disclosure of records under the RTKL based on a specific requester's right to records through another mechanism. Id.
Because DOC substantiated its denial of records here, we affirm OOR's final determination.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of July, 2014, the final determination of the Office of Open Records is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge