B. Moore v. DOC
1638 C.D. 2016
| Pa. Commw. Ct. | Sep 21, 2017Background
- Petitioner Billy Moore, an inmate, requested via Right-to-Know Law (RTKL) the names of (1) the law librarian and paralegal employed at SCI‑Coal Township in 2010 and (2) the prison employees who assisted him with his 2010 PCRA appeal.
- The Pennsylvania Department of Corrections (Department) denied the request, stating the records “do not currently exist.”
- Moore appealed to the Office of Open Records (OOR); the Department submitted an unsworn declaration from its Open Records Officer saying he searched and found no responsive records.
- The OOR affirmed, accepting the Open Records Officer’s averments and concluding the Department met its burden to show the requested records do not exist.
- Moore appealed to the Commonwealth Court. The Court held the Department’s declaration was conclusory and insufficient as to the identities of employees employed in 2010, because the Department likely maintains records of current/former employees and the declaration lacked details about what was searched.
- The Commonwealth Court vacated the OOR determination and remanded, directing the Department to supplement its declaration with specifics about the search; a concurring dissent argued the Department need not create records by interviewing employees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency satisfied burden to prove requested records do not exist | Moore: information must exist; OOR decision unsupported by substantial evidence | Dept: attestation that no records exist is adequate; agency not required to create records | The Department’s unsworn, conclusory declaration was insufficient as to employee identity records; remand to supplement search details |
| Whether agency must create a record by compiling interview results | Moore: seeks names of employees who assisted on his PCRA appeal (implies agency should identify) | Dept: agency is not required to create or compile new records or interview staff | Court: agency need not be compelled to create records, but here identity of employees likely exists in agency records, so more specific search detail required |
| Adequacy of unsworn attestation to prove nonexistence | Moore: challenges sufficiency of evidence supporting nonexistence | Dept: unsworn attestation of Open Records Officer suffices under precedent | Court: unsworn attestation may suffice generally, but must be detailed and nonconclusory; here it was too generic |
| Scope of required evidentiary detail when claiming nonexistence | Moore: requests agency actually look for records | Dept: provided no detailed description of search | Held: affidavits/declarations must describe what records/databases were searched and why no responsive records found; remand for supplementation |
Key Cases Cited
- Hodges v. Department of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011) (agency may satisfy nonexistence burden with attestation)
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (attestation/affidavit can prove nonexistence)
- Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (agency affidavits must be detailed, nonconclusory, and in good faith)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (standard of review for OOR final determinations)