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Taylor v. Dep't of Corr.

COMMONWEALTH COURT OF PENNSYLVANIA
Dec 30, 2014
No. 842 C.D. 2014 (Pa. Cmmw. Ct. Dec. 30, 2014)

Opinion

No. 842 C.D. 2014

12-30-2014

Kevin Taylor, Petitioner v. Department of Corrections, Respondent


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Kevin Taylor (Petitioner), pro se, petitions for review of the order of the Office of Open Records (OOR) which upheld the denial by the Pennsylvania Department of Corrections' (Department) Agency Open Record Officer (AORO) of his request for documents.

Petitioner is an inmate incarcerated by the Department at the State Correctional Institution at Retreat (SCI-Retreat).

On February 6, 2014, Petitioner filed a Right-to-Know Law (RTKL) request with the Department's AORO seeking: (1) the written "Sentencing Order" (hereinafter referred to as "the Judgment of Sentence") signed by Judge Earl W. Trent at CP-51-CR-0010141-2007; and (2) the Judgment of Sentence signed by Judge Leon W. Tucker at CP-51-CR-0506441-2005. Standard Right-to-Know Request Form, February 6, 2014, at 1.

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

There is only a certified record.

On March 14, 2014, the Department's AORO responded by sending Petitioner copies of the Sentencing Transcripts pertaining to case numbers CP-51-CR-0506441-2005 and CP-51-CR-0010141-2007. The AORO denied Petitioner's request insofar as it requested any other information because the records "do not currently exist" within the possession, custody or control of the Department. Letter to Kevin Taylor from Pennsylvania Department of Corrections Right-to-Know Office, March 14, 2014, at 1.

Upon receipt of a written request for records, Section 901 of the RTKL, 65 P.S. § 67.901, imposes an obligation upon an agency to "make a good faith effort to determine if the record requested is a public record ... and whether the agency has possession, custody or control of the identified record, and to respond as promptly as possible under the circumstances existing at the time of the request." As the RTKL makes clear, however, an agency is not required to create a record if the record sought does not exist or to compile a record in a new or novel format. Section 705 of the RTKL, 65 P.S. § 67.705.

On March 26, 2014, Petitioner appealed the denial to the OOR. On March 26, 2014, the OOR notified the parties when the record would be closed. The notice specifically stated: " You may submit information and legal argument to support your position by 5:00 p.m. seven (7) business days from the date on this letter. " Notice, March 26, 2014, at 1. (Emphasis in original.)

On April 2, 2014, the Department submitted correspondence to the OOR which indicated that, upon further investigation, the Department identified the following additional documents as responsive to Petitioner's request: (1) the Judgment of Sentence entered at CP-51-CR-0506441-2005; (2) the Department's Court Commitment Form (DC-300B) entered at CP-51-CR-0506441-2005; (3) Letter from Judge Leon W. Tucker regarding the calculation of the sentencing for the two cases; and (4) the Department's Court Commitment Form (DC-300B) entered at CP-51-CR-0010141-2007. The Department also provided an "Agency Attestation of the nonexistence of Record" signed by Christopher Cominsky (Mr. Cominsky), the Records Supervisor at SCI-Retreat. Mr. Cominsky verified that "no other responsive record exists within my custody, possession or control." Agency Attestation of Nonexistence of Records, April 2, 2014, at 1.

On Wednesday, April 9, 2014, Petitioner mailed an Affidavit to the OOR, together with several documents, which he claimed proved that the Department had in its custody, possession and control, the Judgment of Sentence entered at CP-51-CR-0010141-2007. Petitioner's Affidavit was date-stamped by the OOR indicating that it was received by OOR on April 14, 2014.

On April 24, 2014, the OOR issued its Final Determination and found that the Department demonstrated that the requested records did not currently exist. The OOR, as the initial fact-finder, found Mr. Cominsky's Affidavit to be credible. In its Order, the OOR stated that "[Petitioner] did not submit any evidence to challenge the Department's Affidavit." OOR Final Determination, April 24, 2014, at 1.

On appeal, Petitioner first argues that the OOR erred when it issued its determination without first considering his Affidavit and documents. Petitioner contends that the OOR erroneously indicated that he did not submit evidence to counter the Department's Attestation of Nonexistence of Records. He claims that the OOR made a final determination without considering his evidence that the Sentencing Order at CP-51-CR-0010141-2007 does, in fact, exist, and was in the custody, possession and control of the Department. Specifically, he attached to his Affidavit eight documents which he claimed proved the Department had in its possession more than one Sentencing Order:

"This Court's standard of review of a final determination of the OOR is de novo and our scope of review is plenary." Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 n. 7 (Pa. Cmwlth. 2014).

(1) A Memo he received from Denise Woods (Ms. Woods), the Department's Records Administrator, dated October 7, 2013, which stated: 'I have referred your concerns to the staff at SCI Retreat so that they can review the orders we have on hand.' (emphasis added.)

(2) Deputy Brittain's response to Petitioner's Grievance, in which Deputy Brittain stated 'Mr. Cominsky met with you to give you copies of the sentencing orders...' ' (emphasis added).

(3) Decision of Department's Chief Grievance Officer, Dornia Varner, dated November 6, 2013, which stated '[a]n investigation into the matter reveals that the sentence calculation is in accordance with the court orders provided by the sentencing courts....' (emphasis added).

(4) Response to Inmate's Request to Staff Member, dated February 2, 2014, which stated 'you were already given copies of these documents by Mr. Cominsky...' (Emphasis added.)
(5) Petitioner's Letter to Clerk of Quarter Sessions dated February 4, 2014, requesting sentencing orders, and handwritten response 'See Prison Counselor or Record Room.'

(6) Unit Manager's Response to Petitioner's Grievance, dated February 24, 2014, in which she states: 'You claim you did not receive copies of sentencing orders for CP-51-CR-0506441-2005; however, Mr. Cominsky clearly documented that on 9/27/13 he personally met with you and did provide you with copies.'

(7) Memo to Petitioner from Chris Cominsky dated February 24, 2014, in which he states: 'As for your sentencing orders I have made copies of the 300Bs; Sentencing Transcripts; and Orders that are contained in your records which were used to compute your current sentence, as per Civil Action 13-CV-1262 in the United States District Court.'

(8) Letter from the Department to Judge Leon W. Tucker dated September 8, 2009, requesting Judge Tucker to clarify whether his sentence at CP-51-CR-0506441-2005 was to run concurrent or consecutive to Judge Trent's sentence; Judge Tucker's response dated September 21, 2009, stating that Petitioner's eleven and one half months to twenty-three months sentence is to run consecutive to Judge Trent's sentence imposed in the matter at CP-51-CR-0010141-2007.

From this Court's review of the certified record, it does appear that Petitioner submitted an Affidavit, together with the above-listed documents, to counter the Department's Attestation of Nonexistence of Record

However, Petitioner's submission was untimely. The RTKL provides that the OOR is responsible for setting the schedule for submission of documents. Section 1102(a)(1) of the RTKL, 65 P.S. § 67.1102(a)(1). Petitioner was required to mail his information and legal argument seven business days from the date of the OOR's Notice. The seventh business day from March 26, 2014, was Monday, April 7, 2014. Petitioner admitted that his Affidavit was "mailed to OOR on April 10, 2014, from SCI-Retreat." Petitioner's Brief at 6. The OOR was not required to consider Petitioner's untimely Affidavit or the attached documents.

Even if Petitioner's Affidavit was timely, his evidence did not establish that the Department had the Judgment of Sentence entered at CP-51-CR-0010141-2007 in its possession, custody and control. The documents submitted by Petitioner contained the Department's internal communications concerning Petitioner's numerous requests for the "written judgment of sentence order." The Department responded to Petitioner's requests by making reference to those documents that confirmed his sentence, including judgments of sentence, the criminal docket, transcripts of the sentencing hearings, and Court Commitment 300B Forms. Clearly, the Department loosely referred to these documents as "sentencing orders."

Petitioner argued "[w]ithout the sentencing orders the Department of Corrections has no proof, verity of sentence, conviction, sentencing conditions and transfer of custody (from county to state) authorized by a judge. The written Judgment of Sentence is the only lawful court order that can stand as evidence/authorization for confinement." Attachment to Petitioner's Request to Participate as Direct Interest Party, March 30, 2014, at 1. This Court notes the Superior Court has recently rejected this argument in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), wherein it found that the criminal docket provided by the trial court and the transcript of sentencing hearings confirmed the imposition, and legitimacy of the prisoner's sentence. --------

For example, Ms. Woods' reference to "the orders we have on hand" did not necessarily mean that the Department had both judgments of sentence. The reference could mean a number of things, including those orders the Department had on hand or all orders which the Department had on hand. Mr. Cominsky's Memo to Petitioner dated February 24, 2014, indicates that his use of the term "sentencing orders" included Court Commitment 300B Forms, sentencing transcripts and sentencing orders: "As for your sentencing orders I have made copies of the 300B's; Sentencing Transcripts; and Orders that are contained in your records which were used to compute your current sentence...." Similarly, Deputy Brittain's reference to more than one sentencing order which Mr. Cominsky asserted he gave to Petitioner was not proof that the Department had two "sentencing orders" in its possession, control or custody. A review of all accounts reflects that Mr. Cominsky gave Petitioner one sentencing order, two sentencing transcripts and two Court Commitment Forms (DC-300B).

This Court declines to apply Petitioner's literal interpretation of the term "sentencing orders" to specifically include the Judgment of Sentence at CP-51-CR-0010141-2007. The Department's reference to more than one sentencing order does not mean that the Department had both Judgments of Sentence in its possession, custody or control.

Next, Petitioner contends that Mr. Cominsky committed perjury by submitting the Attestation of Nonexistence of Record because he gave Petitioner copies of the documents that were supposedly non-existent. He also argues that the OOR "deliberately interfere[d]" with his access to information. Petitioner's Brief at 5.

Petitioner's argument is untenable. On the one hand, Petitioner asks this Court to direct the Department to provide him a copy of the Judgment of Sentence at CP-51-CR-0010141-2007. On the other hand, Petitioner indicates that he already has that document because Mr. Cominsky provided it to him. Petitioner never produced the written sentencing order that Mr. Cominsky allegedly gave him in support of this argument. There is no basis for this Court to conclude that Mr. Cominsky committed perjury.

Regarding non-existent records, this Court has stated 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 v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011).

Absent evidence of bad faith, the veracity of an agency's submissions explaining reasons for nondisclosure should not be questioned. Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc) (citation omitted). It is well-settled that the truthfulness of the affiant is a matter that goes to the credibility and weight of the evidence, which are assessments to be made by the fact-finder. Barylak v. Montgomery County Tax Claim Bureau, 74 A.3d 414, 417 (Pa. Cmwlth. 2013).

In Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010), this Court considered a similar request by an inmate (Moore) filed with the Department for a judgment of sentence and the Department's denial of the request. The Department supported its denial with both sworn and unsworn affidavits that it did not have in its records Moore's judgment of sentence. This Court explained that the Department's affidavit was sufficient to satisfy its responsibilities under the RTKL:

Moore's sole argument on appeal is that [the Department's] statement that a judgment of sentence does not currently exist leads him to believe that such a record must have existed at some time and, therefore, either [the Department] or ... OOR has a duty to produce the record under the RTKL. However, Moore misinterprets the statutory language, specifically, the use of the word 'currently' as used in Section 705 of the RTKL, stating that 'an agency shall not be required to create a record which does not currently exist.' 65 P.S. § 67.705. Under this provision, whether or not a judgment of sentence existed at some point in time is not the proper standard—the standard is whether such a record is in existence and in possession of the Commonwealth agency at the time of the right-to-know request. [The Department] searched its records and submitted both sworn and unsworn affidavits that it was not in possession of Moore's judgment of sentence-that such a record does not currently exist. These statements are enough to satisfy [the Department's] burden of demonstrating the non-existence of the record in question, and obviously [the Department] cannot grant access to a record that does not exist.[ ] Because under the current RTKL [the Department] cannot be made to create a record which does not exist, .... OOR properly denied Moore's appeal.
Moore, 992 A.2d at 909 (footnote omitted).

Here, Mr. Cominsky attested that certain records which were used to compute Petitioner's sentence were located and forwarded to Petitioner. He further stated that no additional records currently existed within the Department's possession, custody or control. The OOR, as the initial fact-finder, accepted Mr. Cominsky's Affidavit as credible evidence. This Court discerns no basis upon which to upset or replace the OOR's credibility determinations.

Accordingly, this Court must conclude that the Department met its burden to prove that it does not currently possess the Judgment of Sentence at CP-51-CR-0010141-2007. The OOR did not err when it denied Petitioner's appeal.

The Final Determination of the OOR is affirmed.

/s/_________

BERNARD L. McGINLEY, Judge Judge Brobson concurs in result only. ORDER

AND NOW, this 30th day of December, 2014, the Final Determination of the Office of Open Records in the above-captioned matter is hereby AFFIRMED.

/s/_________

BERNARD L. McGINLEY, Judge


Summaries of

Taylor v. Dep't of Corr.

COMMONWEALTH COURT OF PENNSYLVANIA
Dec 30, 2014
No. 842 C.D. 2014 (Pa. Cmmw. Ct. Dec. 30, 2014)
Case details for

Taylor v. Dep't of Corr.

Case Details

Full title:Kevin Taylor, Petitioner v. Department of Corrections, Respondent

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Dec 30, 2014

Citations

No. 842 C.D. 2014 (Pa. Cmmw. Ct. Dec. 30, 2014)