Opinion
No. 901 C.D. 2014
11-10-2014
Bruce A. Quarles, Petitioner v. Department of Corrections, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Bruce A. Quarles (Requester), pro se, petitions for review of the Final Determination of the Office of Open Records (OOR) that denied Requester's appeal from the Department of Corrections' (Department) denial of his request (Request) seeking copies of his "Judgment of Sentence order" (Judgment Order) pursuant to the Right-to-Know Law (RTKL). The Department's Open Records Officer (ORO) denied the Request because the Judgment Order did not currently exist, and the Department was not required to create a non-existing record. (Department's Response, R. Item 1.) On appeal, Requester abandons his RTKL Request for the Judgment Order and now asks this Court to order his release from prison alleging that, absent the Judgment Order, the Department has no basis for continuing to detain Requester. Because Requester no longer contests the denial of his RTKL Request and requests relief that is beyond the scope of his appeal, this Court has no basis upon which to disturb the OOR's Final Determination and, accordingly, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
Requester is an inmate currently incarcerated at the State Correctional Institution at Graterford (SCI-Graterford). (Final Determination at 1.) On February 14, 2014, Requester submitted his Request to the Department for the Judgment Order associated with "the case of Commonwealth of Pennsylvania v. Bruce A. Quarles, Nos. 1768-1771, October Term, 1981, Philadelphia County." (Request, R. Item 1.) The Department received the Request on February 18, 2014. (Request; Department's Response.) After extending the response period pursuant to Section 902 of the RTKL, the Department's ORO denied Requester's Request because
65 P.S. § 67.902. Section 902 provides that if an ORO concludes that more time is needed to respond to a request for certain enumerated factors, the ORO will notify the requester within five business days of receiving the request and advise the requester, inter alia, that the request is being reviewed and also include "a reasonable date that a response is expected to be provided." Id. If the response is expected to exceed thirty days, "the request for access shall be deemed denied unless the requester has agreed in writing to an extension to the date specified in the notice." 65 P.S. § 67.902(b)(2).
[t]he record(s) that you requested do not currently exist. 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. See Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010).(Department's Response.)
Section 705 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.
Requester filed an appeal with the OOR, seeking clarification of the Department's Response as to whether the Judgment Order ever existed and, if it did not, "th[en] by what authority [was he] being held in prison." (Requester's Appeal, R. Item 1.) The OOR invited the parties to supplement the record. In response, the Department submitted a sworn "Agency Attestation of Nonexistence of Records" (Affidavit) from the Records Supervisor at SCI-Graterford (Records Supervisor). (Final Determination at 1; Affidavit, R. Item 3.) In the Affidavit, the Records Supervisor attests that if the Judgment Order was in the Department's possession, it "would be retained as [an] official record[] in files within [his] custody." (Affidavit.) The Records Supervisor also attests that, "[a]fter a reasonable search, . . . no such responsive records exist within [his] custody, possession or control." (Affidavit.)
Requester filed a reply to the Department's Response asserting that the Affidavit appeared to indicate that the Judgment Order was in the possession of another entity, such as a contractor or vendor. (Requester's OOR Response, R. Item 4.) Requester asked for the matter to be remanded so that the Department could notify the third party of the Request, provide the third party with the documents associated with the Request, and reveal to Requester what third party may possess the Judgment Order. (Requester's OOR Response.) However, "Requester did not submit any evidence to challenge the [Records Supervisor's] [A]ffidavit." (Final Determination at 1.)
The OOR issued the Final Determination denying Requester's appeal. The OOR held that "an affidavit may serve as sufficient evidentiary support" and that, "[b]ased on the materials provided, the Department has met its burden of proof that it does not possess the record sought in the Request." (Final Determination at 1.) The OOR explained that the Department was "not required to create a record that does not exist, or maintain a record it does not currently maintain" per Section 705 of the RTKL, 65 P.S. § 67.705. (Final Determination at 1.) The OOR held that "there [was] no evidence that the requested record [was] 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 1-2.) Accordingly, the OOR denied Requester's appeal. (Final Determination at 2.) Requester then filed his Petition for Review with this Court.
Pursuant to Section 506(d)(1) of the RTKL:
[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 this act, shall be considered a public record of the agency for purposes of this act.65 P.S. § 67.506(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, 75 A.3d 453, 477 (Pa. 2013).
Although Requester filed his Petition for Review, a vehicle for seeking appellate review of the OOR's Final Determination, he does not challenge the OOR's Final Determination and states that he has "ceased pursuing the RTKL matter." (Requester's Reply Br. at 5.) Instead, Requester "objects to the [Department] imprisoning him at this time absent a signed written judgment of sentence court order . . . ." (Petition for Review at 3.) Requester asserts that his RTKL case has "metamorphosed into a revelation revealing that the [Department] is imprisoning him absent a court issued judgment of sentence order imposing a sentence upon him that requires him to be imprisoned at this time, which would, justifiably, cause [Requester] to supplement the initial relief requested with the relief requested here." (Requester's Br. at 8.) Requester seeks an order from this Court: (1) declaring that the Department "is imprisoning [Requester] without court authority and in violation of both the State and Federal Constitutions"; and (2) "instructing the [Department] to release [Requester] from custody immediately." (Petition for Review at 3.) Requester also asks that, if this Court concludes that it lacks jurisdiction over his present claims for relief, we transfer this matter to the appropriate court. (Petition for Review at 3.)
The Department responds that the OOR properly denied Requester's appeal for the reasons set forth in the Final Determination and this Court's decision in Moore. Citing this Court's unreported opinion in Whitaker v. Department of Corrections (Pa. Cmwlth., No. 1781 C.D. 2012, filed March 8, 2013), as persuasive authority, the Department also argues that Requester's contentions that he is being confined illegally are a collateral attack on his criminal sentence and, therefore, beyond the scope of the RTKL; thus, they should not provide a basis upon which to disturb the OOR's Final Determination.
"Parties may . . . cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent." 210 Pa. Code § 69.414(a).
In his Reply Brief, Requester argues that, to the extent that the Department objects to this Court's jurisdiction, that objection is waived pursuant to Pennsylvania Rule of Appellate Procedure 741(a), Pa. R.A.P. 741(a). Requester also asserts that he is not attempting to use the RTKL to attack his criminal sentence. Requester reiterates that, having used the RTKL to confirm his belief that he is being illegally detained, he is no longer pursing relief under the RTKL, but seeking his release from prison based on the absence of the Judgment Order.
Initially, we note that the Department is not challenging this Court's jurisdiction to consider Requester's RTKL appeal, but instead asserts, in accordance with Whitaker, that a RTKL action and appeal cannot be used to challenge the validity of Requester's ongoing incarceration. Requester objects to his continued confinement absent the Department's possession of a Judgment Order. The Department asserts that such a challenge is not properly brought in a RTKL appeal. This Court previously has considered the issue of inmate-requesters seeking their release via a RTKL appeal and concluded that this relief is unavailable in that context. This precedent is equally applicable to this case.
In Moore, the petitioner requested, inter alia, a copy of his sentencing order under the RTKL, which the Department's ORO denied because that record did "not currently exist" and it "was not required to create a record." Moore, 992 A.2d at 908. The OOR affirmed and the petitioner petitioned this Court for review. Id. The petitioner argued the merits of his RTKL appeal and "raise[d] a due process challenge to his continued confinement" because "if the record does not exist, then his confinement is invalid because it is illegal for the Department to hold him without a signed judgment of sentence." Id. at 909-10. After affirming the merits of the OOR's final determination, we held that "an appeal from an OOR order denying [the petitioner's] request for access to a public record is not the proper forum to challenge the constitutionality of his continued incarceration." Id. at 910.
More recently, in our unreported decision in Whitaker, the petitioner filed a RTKL request also seeking a copy of his "Written Judgment of Sentence Order," which was denied by the Department because "no responsive record exist[ed]." Whitaker, slip op. at 1-2 (quotation marks omitted). The OOR affirmed the Department's denial, and the petitioner petitioned this Court for review. Id., slip op. at 2-3. As in the present case, the petitioner in Whitaker also did not challenge the merits of the OOR's final determination, but argued that he should be released because the Department did not possess a sentencing order confining him to prison, thereby making his continued incarceration illegal. Id., slip op. at 3. In concluding that this argument was not a "basis upon which to disturb the OOR's final determination," we explained:
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 [for] providing an individual with a right or avenue to declare his underlying judgment of sentence a legal nullity. Indeed, our Supreme Court has held that the Post[]Conviction Relief Act3 [(PCRA)] is the exclusive state-law remedy for prisoners challenging sentences that are allegedly illegal. Commonwealth v. Hall, . . . 771 A.2d 1232[,
1235] ([Pa.] 2001). Because Requester does not contest the denial of his RTKL request and seeks relief that is beyond the purview of the RTKL, this Court has no basis upon which to disturb the OOR's final determination.Id., slip op. at 3-4 (footnotes omitted). We also noted, in Whitaker, that this Court has similarly held that a "plaintiff could not maintain a declaratory judgment action . . . following the denial of a RTKL request because the plaintiff's claims amounted to a collateral attack to his criminal conviction," and the PCRA was "'the sole means by which persons . . . serving illegal sentences may obtain collateral relief.'" Whitaker, slip op. at 4 n.4 (quoting Guarrasi v. Scott, 25 A.3d 394, 402 (Pa. Cmwlth. 2011) (internal citations omitted)).
3 Sections 9541 through 9546 of the Judicial Code, 42 Pa. C.S.[] §§ 9541-9546.
Section 9542 of the PCRA establishes the scope of that act and states, in pertinent part, that the PCRA
provides for an action by which . . . persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.42 Pa. C.S. § 9542. Based on this language, our Supreme Court, in Hall, held "that claims that could be brought under the PCRA must be brought under that Act." Hall, 771 A.2d at 1235 (emphasis in original).
Like the petitioners in Moore and Whitaker, Requester here seeks to transform his RTKL appeal into a challenge to his ongoing incarceration. However, in Moore and Whitaker, we held that such relief was unavailable in a RTKL appeal. Accordingly, Requester's arguments regarding the legality of his confinement are not within the purview of the RTKL, and we will not consider Requester's claims in this RTKL appeal. Because Requester does not contest the OOR's Final Determination and seeks relief in this appeal that is beyond the scope of the RTKL, we affirm the Final Determination.
Pursuant to Section 9545(a) of the PCRA, the courts of common pleas have original jurisdiction over PCRA proceedings, and "[n]o court shall have authority to entertain a request for any form of relief in anticipation of the filing of a petition under this subchapter." 42 Pa. C.S. § 9545(a). Although Requester asks this Court to transfer this matter to the proper court if we determine that we do not have jurisdiction, we decline to transfer Requester's appellate Petition for Review to the appropriate court of common pleas because a PCRA petition must contain specific pleadings that are not present in Requester's Petition for Review of the OOR's Final Determination. See Section 9543 of the PCRA, 42 Pa. C.S. § 9543 (setting forth what must be pleaded in a PCRA petition). --------
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 10, 2014, the Final Determination of the Office of Open Records, entered in the above-captioned matter, is AFFIRMED.
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RENÉE COHN JUBELIRER, Judge