Opinion
No. 1546 C.D. 2013
04-03-2014
Thomas W. Thompson, Jr., Petitioner v. Department of Corrections, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Thomas W. Thompson, Jr. (Requester), pro se, petitions for review of the Final Determination of the Office of Open Records (OOR) denying his appeal from the Department of Corrections' (Department) denial of his Right to Know Law (RTKL) Request (Request) seeking records showing the nutritional facts for certain foods served by the Department. The Department denied Requester's Request because the requested records do not currently exist. On appeal, Requester argues that, despite the Department's submission of an Agency Attestation of Nonexistence of Records (Affidavit) stating that the requested records do not exist, the records do, in fact, exist because all food products served by the Department are required by the U.S. Food and Drug Administration (FDA) to have nutritional labels. Because the Department's Affidavit is sufficient evidence to meet its burden of proving that the requested records do not currently exist, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
Requester is an inmate and at the time he filed his Request with the Department, he was incarcerated at the State Correctional Institution at Laurel Highlands (SCI-Laurel Highlands). The Department received Requester's Request on June 5, 2013. Therein, Requester requested the records which identify all of the nutritional facts for certain food items that were served to him by the Department at SCI-Laurel Highlands on May 29, 2013. (Request, R. Item 1.) After extending the response period, the Department denied Requester's Request because the records that he sought do not currently exist and the Department could not grant access to records that do not exist. (Department's Response at 2, R. Item 1.) Requester appealed the denial to the OOR. (Appeal to OOR, R. Item 1.) Requester attached to his appeal the Department's policy, DC-ADM 610, which governs general food service and a blank nutrition chart that he alleged had been adopted by the FDA. (Appeal to OOR, Exs. C and D.)
Requester sought the nutritional facts for: creamed beef/gravy, 2 slices of white bread, 4 oz. of Rice Krispies cereal, ½ grapefruit, 8 oz. milk, 2 packets of peanut butter, 2 packets of grape jelly, 1 orange, 2 hard-boiled eggs, 1 packet of salad dressing, and 1 apple. (Request, R. Item 1.)
On July 23, 2013, the OOR invited the parties to supplement the record and further advised, inter alia, that an affidavit was required to demonstrate the non-existence of the records. (Letter (July 23, 2013) at 1, R. Item 2.) On July 24, 2013, the Department submitted the sworn Affidavit executed by Marcia Noles, Chief of the Food Service Division of the Bureau of Health Care Services (Chief of Food Service). (Affidavit, R. Item 3.) In her Affidavit, the Chief of Food Service attests to the fact that, after conducting a reasonable search, no responsive records exist within her custody, possession, or control. (Affidavit.) Requester did not submit any evidence challenging the Department's Affidavit. (Final Determination at 1, R. Item 4.)
On August 21, 2013, the OOR issued a Final Determination holding that, based upon the materials provided, the Department met its burden of proof that it does not possess the requested records. (Final Determination at 2.) The OOR pointed out that pursuant to Section 705 of the RTKL, the Department "is not required to create records that do not exist, or maintain records it does not currently maintain." (Final Determination at 2.) The OOR stated further that "there is no evidence that the requested records are in the possession of a third party under contract with the Department to perform a governmental function on behalf of the Department." (Final Determination at 2 (citing Section 506(d)(1) of the RTKL, 65 P.S. § 67.506(d)(1)).) Accordingly, the OOR denied Requester's Request. This appealed followed.
65 P.S. § 67.705.
The OOR's Final Determination erroneously cites Section 507 of the RTKL, 65 P.S. § 67.507, which governs record retention, rather than the correct section; specifically, Section 506(d)(1).
This Court's standard of review of a final determination of the OOR is de novo and our scope of review is plenary. Bowling v. Office of Open Records, ___ Pa. ___, ___, 75 A.3d 453, 477 (2013).
On appeal, Requester argues that the OOR erred by concluding that the Department met its burden of proof that the requested records do not exist. Requester asserts that he is seeking the nutritional facts found on the packaging of practically all food products sold in the United States. Requester contends that the label found on each food product setting forth the nutritional facts is a record under the RTKL. Requester argues that the nutritional labels for the food products that are served by the Department are the only means by which inmates will know whether they are actually receiving proper nutrition as required by the Department's own policies.
Requester recognizes that the Department submitted an Affidavit from its Chief of Food Service attesting to the fact that no records responsive to the Request are in her custody, possession, or control. However, Requester contends that there is no support for the proposition that an affidavit always serves as sufficient evidence to show that requested records do not exist. Instead, Requester argues, this Court has only held that an affidavit may serve as sufficient evidence. Requester argues further that the Department's reliance on this Affidavit to exempt it from the disclosure of the requested records is fundamentally flawed. Requester first asserts that it is widely accepted that nutritional labels are found on virtually all food products consumed in the United States; therefore, the requested records do, in fact, exist. Second, Requester asserts, the Affidavit only speaks to records in the custody, possession, or control of the Department's Chief of Food Service, not necessarily to records within the possession or control of the entire Department. Requester argues further that the Affidavit does not take into account the Department's responsibility to disclose records that are in the possession or control of third parties with which it contracts. Requester contends that the food vendors that the Department conducts business with must maintain records pertaining to the nutrition of the food products the vendors supply.
Section 102 of the RTKL defines "record" as:
Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.65 P.S. § 67.102. Unless a record is exempt under Section 708 of the RTKL, protected by a privilege, or exempt from disclosure by law, regulation, or judicial order, a record in the possession of an agency, such as the Department, is presumed to be a public record. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). However, Section 705 of the RTKL states that, "[w]hen responding to a request for access, an agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record." 65 P.S. § 67.705. Therefore, an agency has no duty to create a record that does not currently exist or compile a record in a new or novel format.
The Department does not challenge whether the information that Requester seeks constitute records within the meaning of the RTKL.
65 P.S. § 67.708. Section 708 sets forth specific exceptions that, if proven by the agency by a preponderance of the evidence, exempt otherwise public records from disclosure. Id.
An agency responding to a RTKL request bears the burden of proving by a preponderance of evidence that a record does not exist or is exempt from disclosure. 65 P.S. § 67.708; Hodges v. Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011). This Court has held that "an agency may satisfy its burden of proof that it does not possess a requested record with either an unsworn attestation by the person who searched for the record or a sworn affidavit of nonexistence of the record." Hodges, 29 A.3d at 1192 (citing Moore v. Office of Open Records, 992 A.2d 907, 908-09 (Pa. Cmwlth. 2010)).
In the present case, the Department submitted the sworn Affidavit of its Chief of Food Service attesting that she conducted a reasonable search and determined, based on that search, that no responsive records exist within her custody, possession, or control. (Affidavit.) Although Requester disputes the veracity of the Chief of Food Service's sworn statements, the OOR accepted this evidence as proof that the requested records do not currently exist. To show otherwise, Requester simply argues that because all food products in the United States are required by the FDA to have a nutritional label, the requested records must exist. Such a bare allegation is insufficient to overcome the Department's sworn Affidavit that the requested records do not currently exist.
Moreover, the Chief of Food Service attests that she is employed by the Department and that "[i]f the specific records requested [by Requester] were in the possession of this Department, they would be retained as official records in files within my custody." (Affidavit.) Therefore, the Affidavit is an attestation that the requested records are not in the possession of some other division or person employed by the Department.
In addition, while Requester is correct that our decisions in Hodges and Moore do not hold that an affidavit always serves as sufficient evidence to show that requested records do not exist, like the affidavits submitted in those cases, the Affidavit submitted in this case serves as sufficient evidence to meet the Department's burden. As observed by the OOR, Requester did not submit any evidence challenging or rebutting the Affidavit. (Final Determination at 1.)
In Moore, the requester sought copies of documents from his criminal case that the Department of Corrections claimed did not exist. To meet its burden of proving that the record did not exist, the Department submitted to the OOR "an unsworn attestation made subject to the penalty of perjury and a notarized Affidavit of Nonexistence of Record swearing to the non-existence" of the requested documents within the Department's possession. Moore, 992 A.2d at 908-09. The OOR determined that the Department satisfied its burden through the submission of these documents. Id. at 909. This Court affirmed the OOR's holding that the statements contained within the sworn and unsworn affidavits were sufficient to satisfy the Department's burden. Id.
In Hodges, the requester sought records from the Department of Health (DOH) "related to the licensure of the health care provider at a state correctional institution." Hodges, 29 A.3d at 1191. Before the OOR, the DOH submitted an unsworn affidavit entitled "Agency Affirmation of Nonexistence of Record" executed by the DOH's Open Records Officer attesting that she "made a good faith and thorough inquiry to determine if the [DOH] was in possession of the records requested." Id. Based on that search, she "determined that no responsive records existed in the possession, custody or control of the [DOH]." Id. Citing Moore, this Court agreed with the OOR that the DOH's unsworn affidavit satisfied its burden of proof that the records did not exist. Id. at 1193.
Finally, we turn to Requester's argument that the Department did not meet its burden because the Affidavit does not take into account the Department's responsibility to disclose records that are in the possession or control of food vendors with which it contracts. With regard to Section 506(d)(1) of the RTKL, this Court has explained that "Section 506(d) may reach records that are not in an agency's possession, custody or control provided the third party in possession has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function." Allegheny County Department of Administrative Services v. Parsons, 61 A.3d 336, 340 (Pa. Cmwlth. 2013) (emphasis in original). Thus, the records must be directly related to the services performed. There is no evidence (or even allegation) in the record as to the Department's contractual relationship with its food vendors. Assuming that the Department's contracts with its food vendors are contracts to perform a governmental function, there is no evidence in the record in this matter that the nutritional labels found on the food products supplied by the food vendors to the Department is information that directly relates to the performance of the food vendors' function. In the absence of evidence or an averment regarding the contractual relationship between the Department and its food vendors, we conclude that the Department was not required to inquire of the food vendors with which it contracts to supply food products whether those vendors have in their possession or control the records requested by Requester.
65 P.S. § 67.506(d)(1). Section 506(d)(1) provides that public records in the possession of a third party "with whom an agency has contracted to perform a governmental function on behalf of the agency" are not exempt from disclosure under the RTKL. Id. --------
Accordingly, for the foregoing reasons, the OOR's Final Determination is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 3, 2014, the Final Determination of the Office of Open Records is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge