Wishnefsky v. Pa. Dep't of Corr.
144 A.3d 290
| Pa. Commw. Ct. | 2016Background
- Petitioner Bruce L. Wishnefsky, an inmate, requested purchase orders/invoices showing prices the Department of Corrections (Department) or its contractor paid for a hernia support device under the Right-to-Know Law (RTKL).
- The Department initially denied the request as posing a question rather than seeking a public record; on appeal to the Office of Open Records (OOR) it later submitted declarations asserting it did not possess responsive records and that any contractor/subcontractor records did not directly relate to the governmental function.
- OOR accepted the Department’s declaration of non-possession and its third‑party argument, relied on precedent distinguishing commissary resale costs, and denied disclosure; Wishnefsky submitted a timely reply and sought OOR to take judicial notice of a prior related OOR determination.
- Wishnefsky alleged OOR violated his due process rights by issuing the Final Determination the same day his reply to the Department’s new justification was filed, and OOR refused reconsideration without addressing his arguments.
- The Commonwealth Court vacated OOR’s Final Determination and remanded, finding OOR should have considered Wishnefsky’s response to the Department’s changed rationale and addressing the resulting prejudice to the requester.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requester was denied due process when OOR issued decision without addressing his reply to agency's new justification | Wishnefsky: OOR issued decision same day his reply arrived, depriving him opportunity to be heard on new grounds | DOC: Agency may assert new grounds on appeal (per Levy); OOR acted within schedule | Court: Vacated and remanded — OOR should consider requester's response to newly asserted grounds; failure was prejudicial and denied opportunity to be heard |
| Whether Department waived claim of non-possession by not asserting it in initial denial | Wishnefsky: non‑possession was raised only on appeal; Eiseman suggests late non‑possession claims are problematic | DOC: Levy permits asserting new reasons on appeal to OOR; no waiver | Court: Levy allows new grounds on appeal, but agencies should normally determine possession promptly; here issue is procedural fairness in permitting requester to respond |
| Whether records in contractor/subcontractor possession must be obtained because they "directly relate" to governmental function | Wishnefsky: earlier OOR/Supreme Court rulings (Eiseman) support treating contractor financial submissions as agency records when they implement core agency functions | DOC: Records (costs paid to manufacturer via subcontractor) do not directly relate to medical-care provision and so are not agency records | Court: Did not resolve substantive contractor-records issue on merits; remanded so OOR can consider requester's arguments including Eiseman on reconsideration |
| Whether agency declaration of nonexistence suffices to deny request absent contrary evidence | DOC: Declaration under penalty of perjury proves nonexistence (citing Sherry, McGowan) | Wishnefsky: prior related record and his evidence could show records exist elsewhere in agency custody | Court: Declaration may be sufficient, but OOR must consider requester's contrary evidence/reply before concluding nonexistence |
Key Cases Cited
- Sherry v. Radnor Township School District, 20 A.3d 515 (Pa. Cmwlth.) (declaration may support nonexistence of records)
- McGowan v. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth.) (accepting averments of nonexistence absent competent contrary evidence)
- Levy v. Senate of Pennsylvania, 65 A.3d 361 (Pa. 2013) (agency may assert new exemptions/grounds on appeal to OOR)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (scope and standard for de novo appellate review of OOR decisions)
- Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015) (records required to be submitted to agency reflecting contractor/subcontractor rates can be agency financial records)
- Allegheny County Dep’t of Admin. Svcs. v. A Second Chance, Inc., 13 A.3d 1025 (Pa. Cmwlth.) (third‑party contractor records are public if they directly relate to agency function)
- Buehl v. Office of Open Records, 6 A.3d 27 (Pa. Cmwlth.) (records of goods resale prices did not directly relate to governmental function)