A.D. Brown v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

Petitioner :

:

v. : No. 22 C.D. 2017

: Submitted: October 13, 2017

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: December 15, 2017

Alton D. Brown (Requester), pro se, petitions for review of the December 22,

2016 Final Determination of the Office of Open Records (OOR) denying his appeal

of the Pennsylvania Department of Corrections’ (Department) refusal to grant his

Right-to-Know Law (RTKL)1 request because he had outstanding fees from the

production of records for his prior RTKL Request 354-16 (Prior Request).

On October 24, 2016, Requester, an inmate at the State Correctional

Institution at Greene (SCI-Greene), submitted a RTKL request with the Department

for the Department’s Hepatitis C policy and protocol. The Department denied the

1

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

request, stating that Requester still owed $6.32 for producing records for the Prior

Request.2

Requester appealed the Department’s denial to the OOR, contending that he

did not owe $6.32 to the Department and that the Department failed to produce

documents proving otherwise. In a declaration made on November 15, 2016,

Requester stated that:

1. The Pa. D.O.C. never provided me with a letter with the “amended

invoice” with regards to Item No. 7 in RTKL Request No. 0354-16. I

first learnt about the discovery of Item No. 7 via it’s [sic] May 24,

2016 position statement submitted to the Appeals Office at No.

2016-0832.

2. I have never been provided notice that any documents have been

produced, copied, and waiting for my purchase.

3. I have no problems paying for the documents.

(Certified Record (C.R.) at Item 1, Ex. C.) Also, included in Requester’s appeal

materials were the April 14, 2016 letter in response to the Prior Request and the

above-referenced May 24, 2016 position statement and invoice for the Prior Request.

The invoice indicated that the $6.32 charge for this request resulted from $4.75 for

the copying of 19 pages of granted records at 25 cents per page and $1.57 in postage.

2

The Department received the Prior Request on March 21, 2016, and it issued a letter,

dated April 14, 2016, purporting to grant access to two of the seven items requested. Requester

appealed to the OOR. On May 24, 2016, in response to Requester’s appeal, the Department

submitted a position statement supporting its denial and an invoice reflecting the charges related

to the granted records.

2

The Department responded with a declaration made under penalty of perjury

on December 12, 2016, by Department Open Records Officer Andrew Filkosky

(Filkosky Declaration), who stated that:

4. [Requester], DL4686, was granted records on a RTKL request at

docket RTKL 0354-16.

5. The records for RTKL 0354-16 were copied and prepared for

[Requester].

6. As of the date this declaration is being signed, [Requester] has

not paid for the records for RTKL 0354-16.

7. The outstanding balance is $6.32.

(C.R. Item No. 5.)

The OOR issued a Final Determination denying Requester’s appeal,

concluding that the Department was justified in not processing Requester’s RTKL

request because he had not paid the fees associated with the reproduction of

documents for the Prior Request. (OOR’s Final Determination at 1-2.) The OOR

stated that an agency may validly refuse to process a RTKL request if the requester

has a balance due from a prior RTKL request. (Id. at 1.) The OOR reasoned that

the Filkosky Declaration met the Department’s burden of proving that Requester had

an outstanding balance. (Id. at 2.) Requester filed this petition for review.3

Requester does not challenge the Department’s ability to withhold access to

records where the requester owes money for a prior request and, in fact, Requester

concedes that he has no problem paying for the documents. Instead, Requester

3

This Court’s standard of review in appeals from determinations by agencies under the

RTKL is de novo and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d

453, 477 (Pa. 2013).

3

challenges the sufficiency of the evidence offered to prove that he actually does owe

the $6.32 as the Department claims. Requester contends that the Department never

produced any documents responding to the Prior Request, or at least never notified

him that it had done so and that the records were ready for him to pick up. In support,

Requester refers to the Department’s April 14, 2016 letter in response to the Prior

Request, which provided, in relevant part, Requester with two options for accessing

the granted materials:

If you have the means and wish to access the granted records at

the Department’s Central Office you may make [arrangements] to

inspect the records at the RTKL Office. You may also designate a

representative to make arrangements to inspect the records on your

behalf. . . . You or your representative will be responsible for the

duplication costs of any portions of the records that you wish to retain

after inspecting the records. . . .

Finally, if you do not have the means or desire to inspect the

records at the RTKL Office, the documents can also be mailed to you

at a cost of $3.11 (9 pages @ $0.25 per page, plus $0.86 for postage).

If you would like us to send copies of the records, we require that you

prepay for the documents before they are mailed. . . . If your payment

is not received within thirty (30) days of the date of this letter your

request will be deemed to be withdrawn and a new request would

need to be filed for future access to the requested records.

(C.R. at Item 1, Ex. A (emphasis added).) Requester asserts that this letter’s grant

of access, without more, did not obligate him to pay for any documents because the

letter gave him options on how to acquire the records: one of which required

prepayment and one of which did not. He argues that, until he decided on which

option he would use, no fee could be charged. Requester further contends that,

because he did not prepay for the documents within 30 days of receiving the letter,

his request, per the terms of the letter, should have been deemed withdrawn without

4

incurring any costs because the letter did not indicate that he must prepay, only that

he may prepay to have the documents mailed to him.

Further, Requester asserts the grant of Item 7, which resulted in additional

costs being charged, was invalid because it came more than 30 days after the

Department’s April 14, 2016 letter that stated that if payment is not received in 30

days that the request would be withdrawn and would need to be resubmitted.

(Requester’s Br. at 3.) Notably, that letter stated that the charges owed would be

$3.11 because only Items 2 and 6 of the Prior Request were granted, and Item 7 was

denied because the Department claimed “[t]he record(s) that [were] requested do not

currently exist.” (C.R. at Item 1, Ex. A.) It appears that, while Requester was

appealing the denial of the other items, the Department, in its May 24, 2016 position

statement, granted access to Item 7, which consisted of an additional ten pages for

which the Department sought payment.4

The Department counters that it has produced sufficient evidence to support

its contention that Requester owes $6.32. The evidence that the Department seeks

to rely upon are: the Filkosky Declaration; the April 14, 2016 letter and the May 24,

2016 position statement, which indicate what records were granted in the Prior

Request; and the May 24, 2016 invoice, which indicates the number of pages granted

and the shipping cost for Requester’s Prior Request.

Section 901 of the RTKL addressing, generally, record requests and an

agency’s obligations in responding to such requests, states, in pertinent part, that

“[a]ll applicable fees shall be paid in order to receive access to the record requested.”

65 P.S. § 67.901. An agency may deny a request for records when a requester owes

4

Item 7 was included on the invoice for May 24, 2016, causing the total invoice to show a

balance of $6.32.

5

outstanding fees to the agency for a prior request. See Dep’t of Transp. v. Drack, 42

A.3d 355, 362-63 (Pa. Cmwlth. 2012).5 The agency asserting such basis for denying

access to the records has the burden to prove the requester’s indebtedness to the

agency. See id. at 364 (“[T]he RTKL places an evidentiary burden upon agencies

seeking to deny access to records . . . .”). We have determined that an unsworn

attestation or a sworn affidavit is sufficient to meet this burden of proof, so long as

the declaration is not conclusory or generic. W. Chester Univ. v. Schackner, 124

A.3d 382, 393 (Pa. Cmwlth. 2015); Office of Governor v. Scolforno, 65 A.3d 1095,

1103-04 (Pa. Cmwlth. 2013).

Recently, in two cases involving other RTKL requests from Brown that were

denied by the Department for, among other reasons, failure to pay the same $6.32 at

issue here, this Court found the evidence the Department offered in support of the

denial of those requests to be insufficient. In both of those cases, the Department’s

sole evidentiary offering was a declaration identical to the one made by Filkosky in

this case. Brown v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 1868 C.D. 2016, filed Oct.

31, 2017), slip op. at 4, 7-8 (Brown II); Brown v. Dep’t of Corr. (Pa. Cmwlth., No.

1959 C.D. 2016, filed Sept. 1, 2017), slip op. at 5, 7 (Brown I).6 In Brown I, we

determined that the Filkosky Declaration was insufficient because it failed to

5

In Drack, we concluded that:

In a situation where a requester owes money for an agency’s fulfillment of an earlier

request, and where the amount owed for a current request is not expected to exceed

$100, Section 901 permits an agency to process the request but to withhold access

to the request until all applicable fees, including fees for earlier requests, are paid.

Drack, 42 A.3d at 363 (emphasis in original).

6

Pursuant to Section 414(a) of this Court’s Internal Operating Procedure, 210 Pa. Code

§ 69.414(a), an unreported opinion filed after January 15, 2008, may be cited for its persuasive

value and not as binding precedent.

6

“identify the documents that were reproduced as well as the number of pages

included in the $6.32 charge” for the Prior Request. Brown I, slip op. at 7. In Brown

II, we determined that the Filkosky Declaration was insufficient because it failed to

identify: the records “copied and prepared”; the date on which the records were

copied and prepared; whether the Department actually made the records available to

Requester;7 and whether the Department notified Requester that he owed money for

fulfillment of the Prior Request. Brown II, slip op. at 4, 7-8.

The Department recognizes the deficiencies identified in Brown I. It asserts,

however, that this matter is different because it also provided the April 14, 2016

letter, the May 24, 2016 position statement by the Department, and the May 24, 2016

invoice, which, together, cures those deficiencies.

The April 14, 2016 letter may identify the records to which the Department

was granting access as required in Brown I, but it does not cure the deficiencies

pointed out in Brown II. This letter does not identify when the records were copied

and prepared and whether they were actually made available to Requester. Rather,

the April 14, 2016 letter gave Requester two options in how to access the granted

records. This letter did not state that Requester was required to pay for the granted

records because it contained at least one option that did not require any payment. In

maintaining that Requester owes $6.32, the Department essentially invoiced

7

This is required pursuant to Section 701(a) of the RTKL, which states:

Unless otherwise provided by law, a public record, legislative record or financial

record shall be accessible for inspection and duplication in accordance with this act.

A record being provided to a requester shall be provided in the medium requested

if it exists in that medium; otherwise, it shall be provided in the medium in which

it exists. Public records, legislative records or financial records shall be available

for access during the regular business hours of an agency.

65 P.S. § 67.701(a).

7

Requester for copying and mailing records related to the Prior Request, even though

it had given Requester the option of having a representative view the documents at

the Department’s RTKL office for no charge, so long as the records were not

duplicated. Further, the letter stated “[i]f [Requester’s] payment is not received

within thirty (30) days of the date of this letter [Requester’s] request will be

deemed to be withdrawn and a new request would need to be filed for future

access to the requested records.”8 (C.R. at Item 1, Ex. A (emphasis added).) Even

though the Department did not receive payment in 30 days from Requester for the

items granted, thereby rendering the request for those items withdrawn, the

Department asserts he still owes it money based on the deemed-withdrawn request.9

The May 24, 2016 position statement, like the April 14, 2016 letter, may have

identified the records to which the Department was granting access, but it, too, does

not identify when the records were copied and prepared and whether they were

actually made available to Requester. Finally, while the May 24, 2016 invoice offers

proof that the Department notified Requester, during his appeal related to the Prior

8

Such language suggests that it is at least questionable as to whether Requester actually

received access to the requested records.

9

The Department requests this Court to take judicial notice of the OOR’s June 12, 2016

Advisory Opinion, attached to its brief and available on the OOR’s website

www.openrecords.pa.gov/RTKL/AdvisoryOpinions.cfm. In that Advisory Opinion, the OOR

opined, based on Sections 901 and 905 of the RTKL, 65 P.S. §§ 67.901 (requiring that a requester

must pay “[a]ll applicable fees”), 67.905 (providing that if an agency states that the “requested

records are available for delivery at the office of an agency and the requester” does not retrieve

them within 60 days of the response, the agency can dispose of the copies and retain any fees paid

to date”), and Drack, 42 A.3d at 363, “that agencies may deny access to records sought in RTKL

requests based on a requestor’s outstanding fees stemming from a prior RTKL request” “even

where the requester never retrieved the records, because the agency, in responding to the prior

request, had been required to produce physical copies of the requested records.” (OOR

Advisory Op. at 2; Department’s Br. Ex. B (emphasis added).) However, even if the Court were

to take judicial notice of the OOR’s Advisory Opinion, this record does not identify when the

records at issue in the Prior Request were copied and prepared and whether they were actually

made available to Requester.

8

Request, that he owed money for fulfilling the Prior Request, this invoice does not

specify: the records copied and prepared; the date on which the records were copied

and prepared; and whether the Department actually made the records available to

Requester.

We recognize that the additional items in this record cited by the Department

may have cured some of the deficiencies identified in Brown I and Brown II.

However, the Department has not identified when the records were copied and

prepared and whether they were actually made available to Requester as required by

Brown II. Accordingly, the Final Determination of the OOR is vacated, and the

matter is remanded to the OOR for the Department to introduce a more detailed

declaration within 30 days, to which Requester may respond within 30 days, and the

OOR shall issue a new determination. If the Department does not issue a new

declaration within this time period, the OOR shall direct the Department to release

9

the requested records subject to the payment of copying and postage fees by

Requester.

_____________________________________

RENÉE COHN JUBELIRER, Judge

Judge Cosgrove did not participate in the decision of this case.

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

Petitioner :

:

v. : No. 22 C.D. 2017

:

Pennsylvania Department of :

Corrections, :

Respondent :

ORDER

NOW, December 15, 2017, the December 22, 2016 Final Determination of

the Office of Open Records (OOR), entered in the above-captioned matter, is

VACATED, and the matter is REMANDED to the OOR with instructions for the

Department of Corrections (Department) to submit a more detailed declaration

regarding the unpaid fees in Alton D. Brown’s (Requester) Right-to-Know Law

Request RTKL 0354-16 within 30 days of this Order. Requester may file a response

within 30 days of the filing of the Department’s declaration, and the OOR shall then

issue a new determination. If the Department does not issue a declaration within this

time period, the OOR shall direct the Department to release the requested records

subject to the payment of copying and postage fees by Requester.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge