Uniontown Newspapers, Inc., d/b/a The Herald Standard and C. Haines v. PA Dept. of Corrections ( 2016 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Uniontown Newspapers, Inc., d/b/a              :
    The Herald Standard; and Christine             :
    Haines,                                        :
    Petitioners            :    No. 66 M.D. 2015
    :    Argued: November 15, 2016
    v.                              :
    :
    Pennsylvania Department of                     :
    Corrections,                                   :
    Respondent              :
    BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ROBERT SIMPSON, Judge
    HONORABLE P. KEVIN BROBSON, Judge
    OPINION
    BY JUDGE SIMPSON                               FILED: December 19, 2016
    Before this Court are cross-motions for summary relief involving
    enforcement of a final determination the Office of Open Records (OOR) issued
    pursuant to the Right-to-Know Law (RTKL).1 Christine Haines, on behalf of Uniontown
    Newspapers, Inc., d/b/a The Herald Standard, (Requester) appealed to OOR when
    the Department of Corrections (DOC) denied her request for de-identified diagnosis
    data of inmates at State Correctional Institution (SCI)-Fayette. OOR rejected DOC’s
    defenses, ordering disclosure of “all responsive records.” DOC did not appeal.
    Arguing DOC withheld responsive records, Requester asks this Court to compel
    their disclosure and seeks statutory sanctions, including attorney fees and penalties,
    for bad faith. DOC counters that sanctions are not merited because it disclosed
    responsive records, albeit days after the deadline in OOR’s order.
    1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
    Because there is a dispute as to whether DOC provided all responsive
    records, we grant summary relief in part to DOC as to withholding inmate medical
    files and as to creation of a record, and deny summary relief as to its compliance.
    We deny summary relief to Requester, allowing the enforcement action to proceed
    for further development of the record as to whether and when DOC disclosed all
    responsive records in accordance with OOR’s mandate. As the extent of DOC’s
    noncompliance is unclear at this stage, penalties for bad faith are premature.
    I. Background
    A. Facts
    In September 2014, the Abolitionist Law Center published its report,
    “No Escape: Exposure to Toxic Coal Waste at [SCI-] Fayette,” correlating ill
    health of SCI-Fayette inmates to nearby toxic coal waste (“No Escape” Report).
    Pet’rs’ Br. in Support, Ex. 6. In response, DOC undertook an internal investigation
    into the charges (Investigation). Director of DOC’s Bureau of Health Care Services,
    Christopher Oppman (Director Oppman), oversaw the DOC Investigation. Drs.
    Paul Noel and Eugene Ginchereau spearheaded the Investigation.
    On December 31, 2014, DOC issued a press release regarding the
    records reviewed during its Investigation and the results (Press Release). DOC
    noted the Department of Health (DOH) was conducting its own investigation,
    which was not yet final. DOH prepared its own report regarding its investigation
    and findings (DOH Investigative Results), submitted to DOC on February 3, 2015.
    DOC provided information to DOH, such as by email, including inmates’ health
    data, to assist DOH’s investigation.
    2
    B. Procedural History
    Before the investigations were completed, and inspired by the “No
    Escape” Report, Requester submitted a request to DOC on September 25, 2014,
    seeking (with emphasis added):
    documentation of illnesses contracted by inmates and/or staff
    members at SCI-Fayette. I am not seeking identifying
    information, only the types of reported contracted illnesses
    and the number of inmates or staff members with those
    illnesses. I am particularly interested in various types of
    cancer reported at SCI-Fayette since its opening, as well as
    respiratory ailments reported. If there is also information
    comparing the health at SCI-Fayette with the health at other
    state correctional facilities, that would also be helpful.
    (Request). See Pet’rs’ Br. in Support at Ex. 3. After invoking an extension, DOC
    issued a denial, citing several exceptions in the RTKL.2 Requester appealed to OOR.
    Before OOR, DOC limited its argument to the medical records
    exception in Section 708(b)(5) of the RTKL, 65 P.S. §67.708(b)(5), and the
    noncriminal investigation exception in Section 708(b)(17) of the RTKL, 65 P.S.
    §67.708(b)(17). In support, DOC submitted a declaration of Director Oppman as
    to the investigative nature of responsive records (OOR Declaration). Requester
    countered that aggregated data,3 lacking any individual identifiers, is not protected.
    2
    Under Section 708(b) of the RTKL, DOC cited the security exceptions in 65 P.S.
    §67.708(b)(1)(ii) (personal security) and 65 P.S. §67.708(b)(2) (public safety); the investigative
    exceptions in 65 P.S. §67.708(b)(16) (criminal investigations) and 65 P.S. §67.708(b)(17)
    (noncriminal investigations); 65 P.S. §67.708(b)(5) (medical records); 65 P.S. §67.708(b)(6)
    (personal identifiers); 65 P.S. §67.708(b)(10) (predecisional deliberations); and, 65 P.S.
    §67.708(b)(12) (work papers).
    3
    “Aggregated data” is defined as: “A tabulation of data which relate to broad classes,
    groups or categories so that it is not possible to distinguish the properties of individuals within
    those classes, groups or categories.” Section 102 of the RTKL, 65 P.S. §67.102.
    3
    Reasoning that DOC did not prove either exception, OOR directed
    disclosure of “all responsive records … within [30] days” (Disclosure Order).4 See
    Haines & The Herald Standard v. Dep’t of Corr., OOR Dkt. AP 2014-1695 (filed
    December 1, 2014) (Final Determination).                As to Section 708(b)(17), OOR
    determined DOC did not show it performed an investigation attendant to its duties;
    rather, the investigation was ancillary and primarily performed by DOH. As to
    Section 708(b)(5), OOR concluded the exception did not apply.                     OOR noted
    “[DOC] has not asserted what records are being withheld pursuant to this
    exemption, and has not provided any evidence on appeal to explain why these
    records fall under this exemption.” Id. at 7. Because Requester stated “she is not
    seeking any identifying information,” id., the medical records exception did not
    apply on its face, and DOC did not meet its burden. OOR also explained de-
    identified information is not protected by the Health Insurance Portability and
    Accountability Act (HIPAA), which pertains only to covered entities. 
    45 C.F.R. §164.502
    (a). Importantly, DOC did not appeal.
    After the deadline in the Disclosure Order passed, on January 6 or 7,
    2015, DOC disclosed the following: statistics of inmates diagnosed with
    pulmonary and gastrointestinal ailments from 2010-2014, including a comparison
    across institutions; comparisons of natural death and cancer deaths; and, a
    spreadsheet of SCI-Fayette cancer deaths, by type of cancer, from 2003-2013,
    including comparison by institution from 2010-2013.                  DOC also submitted a
    declaration that it provided all responsive records, Post-Final Determination (FD)
    Declaration, 1/7/15). Pet’rs’ Br. in Support at Ex. 9.
    4
    As DOC did not maintain staff health records, only inmate records were before OOR.
    4
    Subsequently, DOC disclosed the following: the Press Release; water
    analysis at SCI-Fayette; Dr. Noel’s investigative summary; a redacted copy of Dr.
    Ginchereau’s medical record review; a redacted list of cancer patients at SCI-
    Fayette (unspecified date); statistics regarding oncology treatments from
    November 2014; and, the DOH Investigative Results. DOC Br. in Support at 9.
    Requester filed a petition for review asking this Court to compel DOC
    to disclose responsive records pursuant to the Disclosure Order. Requester also
    seeks attorney fees and civil penalties, alleging DOC committed bad faith.
    DOC filed preliminary objections, which this Court overruled. Then,
    Requester filed a motion for judgment on the pleadings, which this Court denied.
    See Uniontown Newspapers v. Dep’t of Corr. (Pa. Cmwlth., No. 66 M.D. 2015,
    filed December 7, 2015) (single j. op.). Senior Judge Oler held judgment on the
    pleadings was inappropriate because there was an issue of material fact as to
    whether DOC’s interpretation of the Request was reasonable or whether DOC
    narrowed its response in bad faith.
    In April 2016, Requester deposed Director Oppman and Dr. Noel as
    to DOC’s maintenance of inmate diagnosis data, and how they obtained that data
    during the Investigation, and provided the data to DOH for its investigation.
    The parties filed cross-motions for summary relief. Although both
    parties submit there are no disputes of material fact, they disagree as to whether
    DOC produced all responsive records in compliance with the Disclosure Order.
    5
    There are no stipulations identifying the records provided to date with particularity.
    Requester described records in Exhibit 16 to her brief in support of summary relief
    that remain outstanding, and which she claims are responsive to the Request.
    C. Contentions
    Requester seeks judgment in her favor that DOC did not comply with
    the Disclosure Order because DOC did not provide a complete response or perform
    a good faith search as required by Section 901 of the RTKL, 65 P.S. §67.901. She
    asserts DOC has a duty to disclose inmate medical files in redacted form. In
    addition, as source material for the Investigation and DOH’s Investigative Results,
    Requester contends disclosure of inmate medical files is in the public interest, such
    that DOC should have exercised its discretion to release them.
    In opposition, DOC counters that it disclosed responsive records
    based on its interpretation of the Request. DOC refutes that inmate medical files
    are subject to the Request, which sought aggregated data. DOC challenges the
    allegations of bad faith as grounds for sanctions when it disclosed all responsive
    records. DOC maintains it cooperated with Requester throughout the process,
    providing records not comprised in the Request, like DOH’s Investigative Results.
    In its motion for summary relief, DOC alleges it disclosed all records
    responsive to the Request. DOC contends its construction of the Request as limited
    to illnesses inmates contracted at SCI-Fayette is reasonable.       It asserts inmate
    medical files are not sought by the Request, and are exempt in their entirety. DOC
    also claims Requester did not identify any responsive records that remain undisclosed.
    6
    II. Discussion
    We are asked to discern DOC’s compliance with the Disclosure Order.
    Requester argues responsive records remain outstanding, whereas DOC counters
    that it complied. In this posture, we do not question OOR’s resolution of the merits.
    Com. v. Derry Twp., 
    351 A.2d 606
    , 610 (Pa. 1976) (failure to appeal agency order
    “foreclosed any attack on its content or validity in … enforcement proceedings”).
    In an enforcement action, Requester invokes jurisdiction ancillary5 to
    our appellate jurisdiction under the RTKL. See Dep’t of Envtl. Prot. v. Cromwell
    Twp., Huntingdon Cnty., 
    32 A.3d 639
     (Pa. 2011) (“enforcement proceedings lie in …
    appellate jurisdiction; they are not appealable as of right under 42 Pa. C.S. §723(a)”);
    Pa. Human Relations Comm’n v. Scranton Sch. Dist., 
    507 A.2d 369
     (Pa. 1986).
    Relevant here, the RTKL vests this Court with jurisdiction to assess an
    agency’s compliance by empowering “Chapter 13 courts” with the exclusive
    authority to impose sanctions in the form of attorney fees or civil penalties for
    denials of access after “ma[king] relevant factual findings.” Bowling v. Office of
    Open Records, 
    75 A.3d 453
    , 458 (Pa. 2013); see Sections 1304 and 1305 of the
    RTKL, 65 P.S. §§67.1304, 67.1305. As a party to the underlying proceeding,
    Requester may seek enforcement of OOR’s Disclosure Order through a petition to
    enforce. See, e.g., Dep’t of Aging v. Lindberg, 
    469 A.2d 1012
     (Pa. 1983) (a party
    other than issuing agency may seek enforcement of agency’s order).
    5
    We may grant relief in the nature of mandamus in our ancillary jurisdiction. Avis Rent A
    Car Sys., Inc. v. Dep’t of State, State Bd. of Vehicle Mfrs. Dealers & Salespersons, 
    507 A.2d 893
    (Pa. Cmwlth. 1986).
    7
    A. Legal Standard
    Applications for summary relief are governed by Pa. R.A.P. 1532(b).
    It provides: “[a]t any time after the filing of a petition for review in an appellate or
    original jurisdiction matter the court may on application enter judgment if the right
    of the applicant thereto is clear.” 
    Id.
     “An application for summary relief may be
    granted if a party’s right to judgment is clear and no material issues of fact are in
    dispute.” Leach v. Turzai, 
    118 A.3d 1271
    , 1277 n.5 (Pa. Cmwlth. 2015) (en banc),
    aff’d, 
    141 A.3d 426
     (Pa. 2016). “In ruling on application[s] for summary relief, we
    … enter judgment only if there is no genuine issue as to any material facts and the
    right to judgment is clear as a matter of law.” Cent. Dauphin Sch. Dist. v. Dep’t of
    Educ., 
    598 A.2d 1364
    , 1366-67 (Pa. Cmwlth. 1991).
    An appellate court may grant relief in order to enforce OOR’s final
    determinations. See, e.g., Wishnefsky v. Dep’t of Corr. (Pa. Cmwlth., No. 582 M.D.
    2014, filed July 8, 2015) (permitting relief in the nature of mandamus); Crockett v.
    Se. Pa. Transp. Auth. (Pa. Cmwlth., No. 2295 C.D. 2011, filed September 11, 2012)
    (same).
    B. Requester’s Motion for Summary Relief
    1. Compliance
    Requester bears the burden to prove that DOC did not comply with
    OOR’s order directing DOC to disclose “all responsive records” within 30 days.
    Notably, the language of the Disclosure Order, not that of the Request, is before us.
    The operative term there is “all responsive records,” meaning records OOR deemed
    within the Request. Without confirming the composition of “responsive records,”
    this Court is not in a position to compel disclosure or punish noncompliance.
    8
    a. Scope of Request
    Neither a party nor OOR may refashion the Request in the interest of
    providing responsive records. Dep’t of Labor & Indus. v. Heltzel, 
    90 A.3d 823
    ,
    833 (Pa. Cmwlth. 2014) (en banc). A party’s construction of a request such that
    there are no responsive records, other than those that are clearly protected, is
    improper. See Carey v. Dep’t of Corr. (Carey II) (Pa. Cmwlth., No. 1348 C.D.
    2012, July 3, 2013) (unreported); see also Carey v. Dep’t of Corr. (Carey I); 
    61 A.3d 367
     (Pa. Cmwlth. 2013), accord Shuler v. Dep’t of Corr. (Pa. Cmwlth., No.
    237 C.D. 2016, filed Nov. 1, 2016) (unreported), 
    2016 WL 6441187
     (remanding to
    OOR to assess whether DOC provided all responsive records to request seeking
    records other than the privileged document DOC identified).
    OOR’s construction of the Request in the Final Determination governs
    our disposition of whether DOC complied with the Disclosure Order. Wishnefsky.
    DOC’s interpretation of the Request pertains only to whether its denial of access
    reflects bad faith. As such, OOR’s reasoning in the Final Determination is crucial.
    (i) Subject Matter
    OOR construed the Request as one for data, without any identifying
    information. Final Determination at 3, 7. OOR found “[DOC] has not established
    that the Request seeks exempt medical records.” 
    Id. at 9
    . Indeed, the Request does
    not seek inmate medical files. Requester argued she sought “aggregated data, which
    is not subject to the majority of exemptions cited by [DOC].” 
    Id. at 3
    . Based on the
    Final Determination, OOR construed the Request as seeking data of SCI-Fayette
    inmates’ diagnoses, by type of ailment and number of inmates afflicted.
    9
    In contrast to OOR’s construction, DOC construed the Request to
    require review of inmate medical files: “to determine (1) whether the inmate has
    cancer or a respiratory ailment[;] (2) when the inmate was diagnosed with cancer or
    a respiratory ailment[;] and[,] (3) whether the inmate was at SCI[-]Fayette when he
    was diagnosed with cancer or a respiratory ailment.” DOC Br. in Op. at 34. In other
    words, DOC construed the Request as seeking data on inmates first diagnosed while
    at SCI-Fayette. As a result, DOC argued the Request required the reviewer to make
    a medical judgment tying an inmate’s diagnosis to the institution. 
    Id.
    Throughout this enforcement proceeding, DOC emphasized the phrase
    “contracted at.” DOC’s construction of the Request as seeking only data of inmates
    who “contracted” ailments during their incarceration at SCI-Fayette, has some basis
    in the language of the Request; however, in an enforcement action, we focus on the
    unappealed Final Determination and the language of the Disclosure Order. Derry
    Twp.; Wishnefsky. DOC’s construction is too limited given OOR’s reasoning in the
    Final Determination.
    In particular, OOR repeated that Requester did not seek identifying
    information. Final Determination at 7-9. Also, OOR did not focus on the word
    “contracted” in the Request. 
    Id.
     Thus, there is no support for DOC’s conclusion
    that it was ordered to disclose only information about inmates who first “contracted”
    a disease while at the specific facility.
    Further, DOC’s construction is inconsistent with the declaration
    Director Oppman submitted to OOR acknowledging that DOC had responsive
    10
    records to which the noncriminal investigation exception applied. Specifically, he
    attested “[DOC] has generated the records that [Requester] requests; however, those
    records were created as part of an investigation that [DOH] is conducting.” OOR
    Declaration at ¶6 (emphasis added) (Pet’rs’ Br. at Ex. 8). OOR rejected DOC’s
    noncriminal investigative defense, and it is “those records” that must be disclosed.
    Because the parties misplace emphasis on their interpretations of the
    Request, as opposed to OOR’s construction in the Final Determination, we are
    unable to grant summary relief in Requester’s favor as to DOC’s noncompliance.
    Nonetheless, so as to address DOC’s claim for summary relief, we reject DOC’s
    narrow response, and we hold inmate diagnoses data, particularly as to types of
    illness and number of inmates so diagnosed, are comprised in the Disclosure Order.
    (ii) Request Date
    Because it is apparent the parties did not regard the Request date as
    relevant, we underscore that DOC may only be culpable for failing to disclose
    records that existed as of the date of the Request. Records post-dating the Request
    are not “responsive” regardless of their relevance to the subject matter.
    Under Section 705 of the RTKL (relating to creation of a record), “the
    standard is whether such a record is in existence and in possession of the
    Commonwealth agency at the time of the right-to-know request.” Paint Twp. v.
    Clark, 
    109 A.3d 796
    , 805 (Pa. Cmwlth. 2015) (emphasis added) (citation omitted).
    However, compiling records from a database is not “creation of a record.” Dep’t
    of Envtl. Prot. v. Cole, 
    52 A.3d 541
     (Pa. Cmwlth. 2012).
    11
    The Request date (9/25/14) defines the universe of responsive records,
    as DOC only has a duty to disclose records created on or before September 25, 2014.
    DOC had no obligation to disclose records created after the Request date, such as the
    Press Release, 12/31/15, or the DOH Investigative Results,6 as their creation date
    excludes them from the confines of “responsive records.”                  Consequently, the
    Disclosure Order only encompasses records that existed as of the Request date.
    b. Types of Responsive Records
    Requester identifies three types of responsive records DOC withheld in
    violation of the Disclosure Order: (i) records pre-existing the Investigation; (ii)
    Investigation-related records; and, (iii) inmate medical files. We review each in turn.
    (i) Pre-existing Investigation
    Requester asserts that DOC deliberately withheld responsive records
    that were not involved in its Investigation. Specifically, Requester identifies five
    sources of records: (1) a database of treatment at Chronic Care Clinics, which may
    be isolated by institution (PTrax); (2) a database of cancer patient inmates, including
    historical data (Oncology DB); (3) inmate grievances logged with the Bureau of
    Health Care Services (Grievances); (4) mortality lists by facility, showing cause of
    death (Mortality Lists); and, (5) reports from DOC’s pharmacy contractor, showing
    number of inmates treating for pulmonary and gastrointestinal medications
    (Contractor Reports). Pet’rs’ Br. at 28-31. Notably, DOC did not disclaim that such
    records were responsive, or that it disclosed records from these five sources.
    6
    DOC’s point that Requester sought records after issuance of the Final Determination is
    well-taken, and such records were gratuitously provided. Requester may submit another request
    for records created after the date of the Request.
    12
    Other than the Grievances, all of these records are fairly comprised
    within the Disclosure Order such that DOC had a duty to disclose them. Indeed, the
    submissions reflect that a Mortality List was disclosed, as well as a redacted copy of
    the Oncology DB for a limited period. However, it is not possible to discern at this
    stage whether DOC disclosed all responsive pre-existing Investigation records.
    (ii) Investigation-related Records
    Requester contends DOC withheld responsive records described in
    Director Oppman’s OOR Declaration and deposition pertaining to the Investigation.
    Requester identifies emails between DOH and DOC related to their investigations.
    Such emails, if containing inmate diagnosis data, qualify as “responsive records.”
    Adding complexity to this Court’s task, neither party is definitive about
    when records were created during the Investigation. Since the Investigation began
    prior to the Request date, and continued thereafter, it is important to determine the
    date of investigative records. The DOH Investigative Results show DOC reported
    inmate diagnoses to DOH that formed the basis for DOH’s findings. These records
    are at the crux of the Request, and it is these records, notwithstanding their alleged
    investigative content, that – if existing as of the date of the Request – DOC had a
    duty to disclose within 30 days of OOR’s order.
    (iii) Inmate Medical Files
    Requester also claims DOC has a duty to disclose inmate medical
    files, in redacted form to remove identifiers, because they were the source material
    for the data. We disagree for two reasons.
    13
    One, inmate medical files are not fairly comprised within the Request.
    Repeatedly, Requester disclaimed any interest in individual medical files,
    emphasizing that the Request pertained to data or reports in aggregate form.
    OOR’s reasoning in the Final Determination relied on the Requester’s disinterest in
    individual medical files, and emphasized that Requester sought data. Requester
    now claims entitlement to redacted medical files because the physician deponents
    explained they contain diagnoses information. Requester may not change her
    Request in subsequent legal proceedings. Heltzel; Pa. State Police v. Office of
    Open Records (George), 
    995 A.2d 515
     (Pa. Cmwlth. 2010) (noting parties may
    limit a request by stipulation).
    Moreover, diagnosis information located in multiple inmate medical
    files does not constitute data of inmates’ diagnoses by type unless DOC compiles
    the information from each file. DOC has no duty to perform research in response to
    a RTKL request to compile the diagnoses data sought. Dep’t of Corr. v. Disability
    Rights Network of Pa., 
    35 A.3d 830
     (Pa. Cmwlth. 2012). That is tantamount to
    creation of a record, contrary to Section 705 of the RTKL, 65 P.S. §67.705.
    Two, an individual’s medical file is exempt under Section 708(b)(5)
    of the RTKL. Section 708(b)(5) specifically exempts the following:
    A record of an individual's medical, psychiatric or
    psychological history or disability status, including an
    evaluation, consultation, prescription, diagnosis or treatment;
    results of tests, including drug tests; enrollment in a health
    care program or program designed for participation by persons
    with disabilities, including vocation rehabilitation, workers'
    compensation and unemployment compensation; or related
    information that would disclose individually identifiable
    health information.
    14
    65 P.S. §67.708(b)(5) (emphasis added). However, medical incident/injury reports
    are not protected under Section 708(b)(5) of the RTKL. See Dep’t of Corr. v. St.
    Hilaire, 
    128 A.3d 859
     (Pa. Cmwlth. 2015). DOC may be required to redact
    information from reports, as distinguished from inmates’ medical files. 
    Id.
     An
    inmate’s medical file is exempt, and not subject to redaction. Williams v. Dep’t of
    Corr. (Pa. Cmwlth., No. 2068 C.D. 2015, filed June 13, 2016) (unreported).
    Further, individual medical files, protected under Section 708(b)(5),
    are one type of record to which Requester’s aggregated data defense does not
    apply.   Section 708(d) of the RTKL provides:          “The exceptions set forth in
    [Section 708(b)] shall not apply to aggregated data maintained or received by an
    agency, except for data protected under subsection[s] (b)(1), (2), (3), (4), or (5).”
    65 P.S. §67.708(d) (emphasis added). Therefore, information protected by Section
    708(b)(5) remains protected.
    c. Summary
    In sum, there is a dispute of material fact as to whether DOC provided
    “all responsive records” as mandated by OOR’s Disclosure Order.                From the
    submissions, it appears that some Investigation-related records and records pre-
    existing the Investigation remain outstanding.       As to those records, we deny
    Requester’s motion for summary relief without prejudice, so the enforcement action
    may proceed to further develop the record as to the status of these records.
    As to inmate medical files, we deny Requester’s motion for summary
    relief with prejudice, and we grant DOC’s motion for summary relief to the extent
    15
    it seeks judgment that it is not required to disclose inmate medical files, even in
    redacted form, or to create new7 records compiling data from those inmate files.
    In the interest of limiting the matters that may be the subject of
    stipulations or further fact-finding, we determine some of the records Requester
    identified in Exhibit 16 to her brief are not comprised within the Disclosure Order.
    As such, DOC has no duty to disclose them.8
    2. Bad Faith
    Requester also asks this Court to award attorney fees and costs, and to
    impose civil penalties based on DOC’s noncompliance and bad faith. Bad faith may
    constitute grounds for an award of attorney fees under Section 1304(a) of the RTKL,
    65 P.S. §67.1304, or for the imposition of civil penalties under Section 1305 of the
    RTKL, 65 P.S. §67.1305. Evidence of bad faith is required. Barkeyville Borough
    v. Stearns, 
    35 A.3d 91
     (Pa. Cmwlth. 2012).
    Here, Requester claims three bases for bad faith: (1) DOC’s untimely
    disclosure beyond the 30-day deadline in OOR’s order; (2) DOC’s failure to perform
    a good faith search of records as required by Section 901 of the RTKL; and, (3)
    DOC’s continued nondisclosure of responsive records.
    7
    In the event DOC created any records prior to the Request date from its review of
    inmate medical files when conducting the Investigation, those records are responsive, and are not
    excluded under Section 705 of the RTKL, 65 P.S. §67.705 (creation of a record).
    8
    For example, drafts of the Press Release that do not contain data of inmate diagnoses are
    not responsive records. Emails exchanged during the Investigation are responsive only to the
    extent they contain diagnoses data. Grievances were not addressed in the Final Determination;
    therefore, grievances are not contemplated in the Disclosure Order.
    16
    As to untimeliness, there is no dispute DOC provided responsive
    records a few days after the 30-day deadline. Although untimeliness may merit a
    finding of bad faith, such a short lapse by itself may be de minimis.
    As to compliance with Section 901 of the RTKL, DOC was required
    to make a good faith effort to determine whether it had possession, custody or
    control of responsive records. 65 P.S. §67.901; Chambersburg Area Sch. Dist. v.
    Dorsey, 
    97 A.3d 1281
     (Pa. Cmwlth. 2014) (remanding to trial court to assess bad
    faith when school district discovered additional 3,500+ pages of records after first
    remand to trial court; trial court erred in not supplementing record as to bad faith).
    An agency’s failure to perform a good faith search in response to a RTKL request
    may be grounds for bad faith. 
    Id.
    At this stage, the submissions suggest DOC did not comply with Section
    901.9 DOC discovered responsive records during the Investigation, as opposed to
    when it received the Request, raising the question as to the thoroughness of its initial
    search. Also, DOC’s narrow construction of its duty under the Disclosure Order
    appears self-serving, similar to its responses in appeals whereby it construed a
    request as seeking a record that is clearly exempt. See, e.g., Carey II; Shuler.
    9
    Requester alleges Director Oppman admitted during deposition that he did no search in
    response to the Request. However, his testimony is less than clear because the questions
    pertained to both the search performed for records in response to the Request, and to the
    Investigation. Also, Requester’s position presumes Director Oppman bore responsibility for
    responding to the Request.
    17
    As to compliance with OOR’s Disclosure Order, it is evident that
    DOC did not disclose responsive records that pre-existed the “No Escape” Report,
    the Request date, and that were created as part of its Investigation. The deposition
    testimony revealed that DOC maintains inmate diagnosis data in PTrax and the
    Oncology DB, and that DOC receives Contractor Reports pertaining to types of
    inmate illnesses. These records fall within the Disclosure Order. Yet, it appears
    that these records remain undisclosed.
    Nonetheless, bad faith is a matter of degree, implicating the extent of
    noncompliance. As the extent of DOC’s noncompliance is unclear, we decline to
    make findings of bad faith at this time. Further, the duration DOC withheld
    responsive records may also weigh in favor of awarding civil penalties.
    Accordingly, we reserve judgment on sanctions until after disposition of the merits.
    C. DOC’s Motion for Summary Relief
    In its motion for summary relief, DOC claims it is entitled to judgment
    in its favor because it reasonably construed the Request, and it provided all
    responsive records within its possession. Accordingly, its conduct does not warrant
    sanctions. DOC also argues it has no duty to provide inmate medical files, or to
    create a record compiling the diagnosis data from those files.
    As explained above, we reject DOC’s contention that it reasonably
    construed the Request. DOC misplaced its focus on the language of the Request,
    when its compliance is judged by the parameters of the Disclosure Order in the
    enforcement stage.
    18
    In addressing Requester’s cross-motion, we explained our reasons for
    granting judgment in DOC’s favor that it has no duty to disclose inmate medical
    files or to create new records by compiling the diagnoses data contained in medical
    files.
    Although additional fact-finding is necessary to determine Requester’s
    entitlement to relief, it is clear on the present submissions that DOC is not entitled to
    judgment in its favor that it complied with the Disclosure Order.
    To establish that it provided all responsive records, DOC submitted the
    Post-FD Declaration. Therein, Director Oppman attested “[DOC] as [sic] previously
    provided records to [Requester] regarding this [R]equest.” 
    Id. at ¶4
     (Pet’rs’ Br. at
    Ex. 9). Without describing or enumerating the records provided to Requester, and
    without explaining when the records were provided, Director Oppman states,
    “[b]eyond the records previously provided to [Requester], [DOC] does not have
    within its custody, possession, or control, reports of illnesses contracted at SCI-
    Fayette, by type and quantity and comparison of illness rates at other state
    correctional institutions.” 
    Id. at ¶6
     (emphasis added).
    As the responding agency, DOC bears the burden of proving that no
    additional responsive records exist. Hodges v. Dep’t of Health, 
    29 A.3d 1190
     (Pa.
    Cmwlth. 2010); Moore v. Office of Open Records, 
    992 A.2d 907
     (Pa. Cmwlth.
    2010). “[A]n 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. In similar
    19
    cases, DOC has provided either sworn or unsworn affidavits in order to satisfy its
    burden of proving it does not possess requested records. See Sturgis v. Dep’t of
    Corr., 
    96 A.3d 445
     (Pa. Cmwlth. 2014). In the absence of any competent evidence
    that the agency acted in bad faith or that the agency records exist, “the averments
    in [an agency’s] affidavits should be accepted as true.” Smith Butz, LLC v. Pa.
    Dep’t of Envtl. Prot., 
    142 A.3d 941
    , 945 (Pa. Cmwlth. 2016) (quoting McGowan v.
    Dep’t of Envtl. Prot., 
    103 A.3d 374
    , 382-83 (Pa. Cmwlth. 2014)).
    Because DOC narrowly construed the Disclosure Order, and because
    its declarations track its narrow construction, DOC did not establish it provided all
    responsive records. As such, DOC is not entitled to judgment in its favor. Leach.
    Moreover, there is some evidence of bad faith and other valid grounds to discount
    DOC’s declarations. Accordingly, we deny DOC’s request for summary relief as to
    its compliance.
    III. Conclusion
    There is a genuine issue of material fact as to whether DOC provided
    all responsive records because DOC did not disclose responsive records that pre-
    existed the Investigation and the Request (i.e., PTrax, Oncology DB, Contractor
    Reports). Further, both parties disregarded the importance of the Request date. As
    a result, there is no indication when the Investigation-related records (such as
    emails) were created. To limit the issues for trial, the Court requests stipulations
    within the next 90 days as to what documents DOC provided, the creation date of
    the provided documents (if known), and when the documents were provided, so as
    20
    to limit fact-finding to only the pre-existing records and Investigation-related
    records that are outstanding.
    To allow full development of the record, this matter shall proceed
    through trial, at which Requester bears the burden of proving DOC’s
    noncompliance and bad faith. To the extent DOC contends no responsive records
    exist beyond those already produced in response to the Disclosure Order, DOC
    bears the burden of proving this defense.
    ROBERT SIMPSON, Judge
    21
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Uniontown Newspapers, Inc., d/b/a         :
    The Herald Standard; and Christine        :
    Haines,                                   :
    Petitioners       :   No. 66 M.D. 2015
    :
    v.                           :
    :
    Pennsylvania Department of                :
    Corrections,                              :
    Respondent         :
    ORDER
    AND NOW, this 19th day of December, 2016, it is ORDERED and
    DECREED as follows:
    Petitioners’ motion for summary relief is DENIED, without prejudice
    to allow the enforcement action to proceed for further fact-finding regarding
    Respondent’s disclosure of “all responsive records,” narrowed to exclude inmate
    medical files, even in redacted form, or creation of new records from inmate
    medical files, and limited to: (1) the five types of pre-existing Investigation records
    described in the accompanying opinion; and, (2) the Investigation-related records,
    including but not limited to those records to which Director Oppman referred in his
    submission to the Office of Open Records (OOR);
    Respondent’s motion for summary relief is GRANTED IN PART, as
    to the disclosure of inmate medical files and creation of a record claims; and
    DENIED IN PART, as to its compliance with OOR’s order.
    AND, because the extent of Respondent’s noncompliance is not yet
    determined, this Court reserves judgment as to imposing statutory sanctions until
    disposition of the merits;
    AND FURTHER, the parties are directed to submit stipulated facts
    identifying the records disclosed, date of record (if known) and the date of
    disclosure, and identifying the “Investigation-related” records to which Director
    Oppman referred in the OOR submissions; as well as stipulated facts identifying
    with more detail the 5 categories of pre-existing Investigation records, so that it is
    clear what remains outstanding by category within 90 days of this order.
    ROBERT SIMPSON, Judge