Opinion
No. 141 C.D. 2014
10-06-2014
Darryl L. Franklin, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Darryl L. Franklin (Requestor) appeals pro se from a Final Determination of the Office of Open Records (OOR) denying his Right-to-Know Law (RTKL) request for access to the Pennsylvania Board of Probation and Parole (Board) records regarding his designation as a "convicted sexual offender" because no such records exist. For the following reasons, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
Requestor, an inmate at a federal correctional institution, submitted a RTKL request to the Board seeking "copies in reference of this information in dispute within your files/and or [sic] records of your 'Agency PA Sexual Offenders Assessment Board.'" (Certified Record [C.R.], Request (Nov. 13, 2013), at 5.) The Board's Deputy Open Records Officer, Janaki Theivakumaran, denied the request, informing Requestor that the Board "does not have the records that you request in its possession [or] under its custody or its control" and that the Board did not have a legal obligation to obtain or create the records. (C.R., Board Response (Nov. 25, 2013), at 1.) The Board also provided Requestor with an Agency Affirmation of Non-existence of Record (Affidavit) executed by Ms. Theivakumaran, which stated:
1) I am to make a good faith effort to determine whether the agency has possession, custody or control of the record requested, pursuant to [Section 901 of the RTKL,] 65 P.S. §67.901;(C.R., Board's Position Statement (Dec. 24, 2013), at 3.)
2) I have made a thorough inquiry of any designated and/or reasonably likely records custodians for the records requested, above; and
3) Based on the information provided to me as of the date of execution of this Affirmation, I do hereby affirm that, to the best of my knowledge, information and belief, such records do not exist within our agency.
I make this statement pursuant to 18 Pa. C.S. §4904.
Requestor appealed the Board's decision to the OOR, claiming that the subject records "must and should exist." (C.R., Requestor's Appeal to the OOR, at 2.) In OOR's Final Determination, it denied the appeal, reasoning that the Affidavit satisfied the Board's burden of proving that it does not possess the records sought. The OOR further confirmed that the Board is not required to create a record that does not exist or to maintain a record it does not currently maintain. This appeal followed.
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).
On appeal, Requestor disputes the Board's sworn statement that it does not possess agency records regarding his classification as a "convicted sexual offender." Requestor seeks an order compelling the Board to produce all responsive documents pursuant to the RTKL, the Freedom of Information Act (FOIA), and the Privacy Act of 1974 (Privacy Act), and to "amend and correct the record within [the] agency files" on the basis that Requestor "was never in a court of law convicted of being a sexual offender." (Mot. of Statement of Objections (Pet. for Review), at 2-3.)
5 U.S.C. §552. Section 552(a) of FOIA specifies the information each "agency" shall make available to the public upon request. 5 U.S.C. §552(a). However, Section 552(f)(1) of FOIA clarifies that "agency," "as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. §552(f)(1). Moreover, Section 551(1) defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," and Section 551(C) expressly excludes from this definition "the governments of the territories or possessions of the United States." 5 U.S.C. §551(1)(C). Because FOIA does not apply to requests for the Commonwealth's agency's records, Requestor's reliance upon it is misplaced. See Office of Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (explaining that FOIA is the "federal counterpart to Pennsylvania's RTKL").
5 U.S.C. §552a. Section 552a(d)(1)-(2) of the Privacy Act allows an individual to gain access to his records and to request amendment of records pertaining to him. 5 U.S.C. §552a(d)(1)-(2). However, the Privacy Act generally encompasses only records in the possession and control of federal agencies. See Section 552a(a)(1) of the Privacy Act, 5 U.S.C. §552a(a)(1) ("[T]he term 'agency' means agency as defined in section 552(e) of this title[.]"). Section 552(e) of FOIA, to which the Privacy Act refers, was redesignated Section 552(f) of FOIA, 5 U.S.C. §552(f), pursuant to the Freedom of Information Reform Act of 1986, Act of October 27, 1986, P.L. 570, No. 99, §1802(b). See note 3. Additionally, Section 552a(a)(10) of the Privacy Act distinguishes an "agency" from a "non-Federal agency," defining the latter as "any State or local government, or agency thereof, which receives records contained in a system of records from a source agency for use in a matching program." 5 U.S.C. §552a(a)(10).
Upon receipt of a written request for records, Section 901 of the RTKL 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." 65 P.S. §67.901. 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; Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011). 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, 29 A.3d at 1192.
Section 102 of the RTKL broadly 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.
In Hodges, the Department of Health (Department) denied a request for records on the basis that the Department did not possess any responsive documents. Id. at 1191. The Department provided an Agency Affidavit of Nonexistence of Record executed by the Department's Open Records Officer, attesting that she made a good faith and thorough inquiry to determine if the Department possessed responsive records, but found that none were within the Department's possession, custody or control. Id. Relying on the affidavit, we held that the Department satisfied its burden of proving that the records sought did not exist. Id. at 1192; see also Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010) (holding that the statements contained in an unsworn attestation and an Affidavit of Nonexistence of Record "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.").
As in Hodges and Moore, here, the Board has fully satisfied its burden of proof by submitting its Deputy Open Records Officer's Affidavit attesting that despite her good-faith search, she could not identify responsive records. Because Requestor's unsubstantiated conclusion that such records "must and should" exist is not sufficient to challenge the Board's evidence, and because records which do not exist cannot be disclosed, we find no error in the OOR's decision.
Accordingly, we affirm the OOR's Final Determination denying Requestor's RTKL request.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of October, 2014, the Final Determination issued by the Office of Open Records on January 10, 2014, at AP 2013-2353, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
65 P.S. §67.102.