Brown v. Pennsylvania Office of Governor, 071117 PACCA, 1379 C.D. 2016

Docket Nº:1379 C.D. 2016
Opinion Judge:MICHAEL H. WOJCIK, Judge.
Party Name:Alton Brown, Petitioner v. Pennsylvania Office of the Governor, Respondent
Judge Panel:BEFORE: HONORABLE ROBERT SIMPSON, Judge, MICHAEL H. WOJCIK, Judge, DAN PELLEGRINI, Senior Judge Cosgrove Judge did not participate in the decision in this case.
Case Date:July 11, 2017
Court:Commonwealth Court of Pennsylvania
 
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Alton Brown, Petitioner

v.

Pennsylvania Office of the Governor, Respondent

No. 1379 C.D. 2016

Commonwealth Court of Pennsylvania

July 11, 2017

OPINION NOT REPORTED

Submitted: April 28, 2017

BEFORE: HONORABLE ROBERT SIMPSON, Judge, MICHAEL H. WOJCIK, Judge, DAN PELLEGRINI, Senior Judge

MEMORANDUM OPINION

MICHAEL H. WOJCIK, Judge.

Alton Brown (Requester) petitions pro se for review of the Office of Open Records' (OOR) final determination that dismissed his appeal from the Pennsylvania Office of the Governor's (Governor's Office) denial of his request for the release of documents under the Right-to-Know Law (RTKL).1 We affirm.

Requester, an inmate at the State Correctional Institution at Greene (SCI-Greene), filed a request with the Governor's Office for the following documents: (1) the latest "Annual Management Review Audit" of the SCI-Greene Medical Department conducted by the Pennsylvania Department of Corrections' (DOC) Bureau of Health Care Services (Bureau); (2) the current Master Menu for the DOC; (3) a record containing all names and salaries/positions of SCI-Greene employees; and (4) the proposal submitted by Correct Care Solutions submitted in response to the Bureau's RFP #6100031243. The Governor's Office initially informed Requester it would need additional time to respond, 2 but ultimately denied the request because it "does not possess, maintain or control" the requested records and directed Requester to submit his RTKL request "directly to the agency or agencies that may possess the records" he seeks, "[i]n this case, the [DOC] and the Pennsylvania Department of General Services [which] may possess responsive records." Certified Record (C.R.) Item 1, Exhibit E at 1.

Requester appealed the Board's denial to OOR, asserting that the Governor's Office must respond on behalf of all other Commonwealth agencies based on a "contractual" relationship between them. C.R. Item 1 at 1. The Governor's Office submitted a position statement and a notarized affirmation from its Agency Open Records Officer (AORO) affirming that a good faith search was conducted and that no responsive records exist within the possession, custody, or control of the Governor's Office. C.R. Item 3 at 1-4.

Ultimately, OOR issued the instant final determination, explaining: Under the RTKL, an attestation signed under penalty of perjury may serve as sufficient evidentiary support for the nonexistence of records. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. [Cmwlth.), appeal denied, 31 A.3d 292 (Pa. 2011)]; Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. [Cmwlth.] 2010). In the absence of any competent evidence that the [Governor's] Office acted in bad faith, "the averments in [the affirmation] should be accepted as true." McGowan v. Pa. Dep't of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. [Cmwlth.] 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa...

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