IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Scott, :
Petitioner :
:
v. : No. 133 C.D. 2016
: SUBMITTED: October 28, 2016
Pennsylvania Department :
of Corrections, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE HEARTHWAY FILED: January 27, 2017
Anthony Scott (Requester) petitions for review from a final
determination by the Office of Open Records (OOR) that the Department of
Corrections (DOC) was not required to take any further action in response to a
request for records pursuant to the Right-to-Know Law (RTKL).1 We affirm.
Requester, a prisoner at the State Correctional Institution at Albion
(SCI-Albion), submitted a request for his “Bill of Indictment” to DOC on
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104
November 9, 2015. DOC’s right-to-know officer denied the request on December
2, 2015, stating that DOC did not possess the requested record.
Requester appealed to the OOR on December 14, 2015, arguing that
the record existed. In response, on December 22, 2015, DOC submitted two
documents: (1) correspondence from assistant counsel for DOC, stating that
Requester’s appeal was without merit because the requested record was not within
DOC’s possession, custody or control; and (2) an attestation of a records specialist
at SCI-Albion, stating that she had searched the records at SCI-Albion and
discovered Requester’s sentencing order but no other records that were responsive
to his request. Requester did not submit any evidence challenging the
documentation submitted by DOC.
OOR denied Requester’s appeal, concluding that the documentation
provided by DOC was sufficient to prove that the requested record was not within
the possession, custody or control of the DOC. This appeal followed.2
In this case, we note that an affidavit attesting to the nonexistence of a
record within an agency’s files may be sufficient evidence to prove that a record is
not in the possession, custody or control of an agency. See Moore v. Office of
Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010). We find that in this case the
2
In reviewing a final determination of the OOR involving a Commonwealth agency, this
Court’s standard of review is de novo and our scope of review is broad or plenary. Bowling v.
Office of Open Records, 75 A.3d 453 (Pa. 2013). This Court independently reviews the OOR’s
orders and may substitute its own findings of fact for those of the agency. Office of the
Governor v. Scolforo, 65 A.3d 1095, 1099 n.6 (Pa. Cmwlth. 2013). As we are not limited to the
rationale offered in the OOR’s decision, we enter narrative findings and conclusions based on the
evidence, and we explain our rationale. Id.
2
affidavit provided to OOR by DOC establishes that the requested document is not
in DOC’s files. We also note that Requester appears to agree with this conclusion.
Requester’s “Petition for Review of Judicial Public Records” filed
with this Court states, “I am well aware that [DOC] cannot grant my request for a
copy of my Bill of Indictment since it is not a document in the possession or
custody of the [DOC].” He asks this Court to provide him with a copy of his Bill
of Indictment from the “Archives of Judicial Public Records at Philadelphia
County.” Requester also filed a “Brief in Response to Reproduced Record” with
this Court, arguing a variety of issues pertaining to the validity of the conviction
that has resulted in his incarceration at SCI-Albion. Clearly, Requester
misapprehends the nature of judicial review.
The role of the Commonwealth Court in a RTKL appeal is to review
the application of the RTKL to a specific set of facts. 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.
The final determination of the OOR is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Scott, :
Petitioner :
:
v. : No. 133 C.D. 2016
:
Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 27th day of January, 2017, the order of the Office of
Open Records is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge