S. Mack v. DOC (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherman Mack, :
Petitioner :
:
v. :
:
Department of Corrections :
(Office of Open Records), : No. 699 C.D. 2022
Respondent : Submitted: April 14, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 26, 2023
Sherman Mack (Mack), pro se, petitions this Court for review of the
Office of Open Records’ (OOR) June 6, 2022 Final Determination granting in part,
denying in part, and dismissing as moot in part Mack’s appeal from the Department
of Corrections’ (DOC) denial of his Right-to-Know Law (RTKL)1 request
(Request). Mack presents three issues for this Court’s review: (1) whether the OOR
erred by accepting DOC’s representation that its Drug Elimination Management
Operations (DEMO) Unit’s funding and budget records do not exist; (2) whether the
OOR erred by accepting DOC’s representation that all requested DEMO policies
and procedures are exempt from disclosure; and (3) whether the OOR erred by
refusing to grant Mack sufficient time to prepare and submit argument in support of
his Request. After review, this Court affirms in part, and vacates and remands in
part.
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
Mack is incarcerated at DOC’s State Correctional Institution at
Somerset (SCI-Somerset). On April 9, 2022, Mack filed the Request with DOC
seeking:
(1) record showing the general budget (including start-up
costs, [and] monthly or annual expenditures) for the
DEMO program and DEMO operations;
(2) record showing the source of all funding (state,
federal[,] or other) for the DEMO program and DEMO
operations;
(3) record showing the criteria, rationale[,] and/or other
reasons for selection of prisoners for placement into the
DEMO program or [U]nit;
(4) record detailing who applies the criteria, rationale[,]
and/or reasons to render a decision or determination that a
particular prisoner should be placed into the DEMO
program or [U]nit; and,
(5) record showing what administrative remedies,
appeals[,] or procedures are made available to provide a
prisoner with a meaningful opportunity for appeal or
review of [] DOC decisions to place (or retain) such
prisoner in the DEMO program or [U]nit.
Reproduced Record (R.R.) at 1a.
By April 20, 2022 letter, DOC informed Mack that Request items (1)
and (2) did not exist (and DOC was not obligated to create them), and Request items
(3), (4), and (5) are exempt from disclosure under Section 708(b)(1)(ii) (relating to
personal security), (b)(2) (relating to law enforcement or public safety activities),
and (b)(16) (relating to criminal investigations) of the RTKL, 65 P.S. §
67.708(b)(1)(ii), (2), (16). See R.R. at 3a-4a.
On May 4, 2022, Mack appealed to the OOR, essentially arguing that
DOC acted in bad faith, in that it was “patently incredible, and strain[ed] all
credulity” that, despite DOC’s statutory and regulatory obligations to maintain
2
funding and policy records, its DEMO program operated without such records. R.R.
at 6a. Mack also asserted that DOC failed to identify what documents were exempt
for safety and criminal investigative reasons, and/or the factual or other basis linking
those concerns to the requested records, and did not attempt to redact exempt
portions thereof. Mack attached his declaration and the declaration of fellow DEMO
Unit inmates Randall Austin (Austin) and Roger Buehl (Buehl) to his appeal.2 See
R.R. at 15a-20a. In addition, Mack requested the opportunity to supplement or
amend his appeal after responsive records were identified. See R.R. at 10a.
The OOR allowed the parties to supplement the record by May 23,
2022, and directed DOC to notify any third parties of their ability to participate in
the appeal. See Certified Record (C.R.), OOR Ex. 2 at 2-4.3 The OOR declared that
it would issue its Final Determination on or before June 10, 2022. See C.R., Ex. 2
at 2. Mack did not seek to supplement the record by May 23, 2022, nor did he
request an extension of time in which to do so.4
On May 23, 2022, DOC submitted a position statement to the OOR.
See R.R. at 22a-36a. Therein, DOC supplied a copy of the DEMO program’s
purchase order log in response to Request item (1) (see R.R. at 22a, 27a-30a), and a
copy of SCI-Somerset’s DEMO Unit Inmate Handbook in response to Request item
(5) (see R.R. at 25a; see also C.R., OOR Ex. 3 at 19-54). However, DOC reiterated
that documents responsive to Request item (2) did not exist. See R.R. at 22a-23a.
2
The declarations reflect that DOC’s central office directed that Mack, Austin, and Buehl
be removed from general population, and/or restricted housing, and placed in SCI-Somerset’s
DEMO Unit for one year because of their purported participation in institutional drug trafficking,
despite their claims that they have never been accused of, or charged with, any drug trafficking
activities. See R.R. at 15a-20a.
3
Citations to the Certified Record are made herein where Mack did not include the
referenced documents in the Reproduced Record.
4
The OOR’s appeal notice included: “If you are unable to meaningfully participate in this
appeal under the above deadlines, please notify the [a]ppeals [o]fficer as soon as possible.” C.R.,
Ex. 2 at 2 (bold emphasis omitted).
3
In support of its denial, DOC appended an affidavit by DOC’s Deputy Agency Open
Records Officer Kimberly Grant (AORO Grant), who attested that, “[i]n response to
[] Mack’s [R]equest, [she] contacted SCI[-]Somerset’s Corrections Superintendent
Assistant ([]CSA[]) . . . Christie Schenk [(CSA Schenk)], who would likely have
possess[ed] such records if they existed[,]” CSA Schenk “informed [her] that there
are no responsive documents regarding the [R]equest” and, thus, “after conducting
a good faith search . . . , [AORO Grant could] state [] that [DOC] does not possess
any responsive records to the RTKL Request.” R.R. at 32a.
Further, DOC Chief of Security Major John Oliver (Major Oliver)
maintained in his affidavit that records responsive to Request items (3) and (4)
“consist of a local procedures manual that outlines the inner workings of the DEMO
Unit and relate[] to inmate population management which is considered
confidential[,]” R.R. at 24a, their disclosure “would reasonably likely threaten public
safety or a public protection activity[,]” R.R. at 25a, and, thus, they “were denied as
they unquestionably fall under the personal security and law enforcement
exemptions to the RTKL.”5 R.R. at 24a; see also R.R. at 34a-36a.
Major Oliver described, in relevant part:
5. The operations of the DEMO Unit[] are confidential and
pertain directly to the security function of operating
Pennsylvania’s correctional institutions.
6. Where and why inmates are housed at specific
institutions is a direct security function required for the
orderly operation of all correctional institutions.
7. Allowing the public to ascertain when and why inmates
are moved to specific institutions poses a security threat
and impacts the safety of both inmates and staff.
5
DOC did not argue in its May 23, 2022 position statement, as it did in its denial, that
records responsive to the Request were exempt under Section 708(b)(16) of the RTKL (relating to
criminal investigations).
4
8. Security threat groups and various other factors are
monitored and considered in placing inmates within
specific units. Any insight into this process can facilitate
the manipulation of the population management of
correctional institutions and create a security risk for
inmates and staff for a variety of reasons including
retaliation and general increased risk of violence.
9. The disclosure of the requested records would threaten
public safety and [DOC’s] public protection activities in
maintaining safe and secure correctional institutions by
allowing inmates or others to access information that will
interfere with the personal security of individuals
providing recommendations and opinions relating to the
inner workings and operation of a prison.
10. Safety and security of staff and inmates is a critical
issue in prison management where each prison institution
maintains the care, custody, and control of a multitude of
dangerous and potentially dangerous inmates.
11. As a whole, the requested records are maintained by
[DOC] in connection with its law enforcement function of
supervising the incarceration of inmates in a safe and
secure manner.
12. For the reasons set forth above, the disclosure of the
requested record is reasonably likely to result in a
substantial and demonstrable risk of physical harm to, or
the personal security of, institution staff, inmates, and/or
the general public.
13. Additionally, based on the foregoing reasons, the
disclosure of the requested record is reasonably likely, to
threaten public safety, as well as compromise [DOC’s]
public protection activities and function of maintaining
order and control of inmates.
R.R. at 34a-36a.
On June 6, 2022, the OOR issued its Final Determination. See OOR
Final Determination, R.R. at 39a-45a. The OOR granted Mack’s challenge that
DOC failed to provide documents responsive to Request item (5) because the DEMO
5
Unit Inmate Handbook did not reveal any inmate appeal procedures.6 The OOR
dismissed Mack’s challenge that DOC failed to provide documents responsive to
Request item (1) as moot because DOC produced the DEMO program’s purchase
order log. See OOR Final Determination at 2, R.R. at 39a. The OOR denied Mack’s
challenge that DOC failed to provide documents responsive to Request item (2),
stating that, based on AORO Grant’s affidavit, DOC demonstrated that it conducted
a good faith search for records responsive to Request item (2) and determined that
none existed. See OOR Final Determination at 3-5, R.R. at 40a-42a. The OOR
denied Mack’s challenge that DOC failed to provide documents responsive to
Request items (3) and (4), concluding, based on Major Oliver’s affidavit, that
releasing such records would interfere with personal and public security.7 See OOR
Final Determination at 5-8, R.R. at 42a-45a.
On June 12, 2022, Mack filed a Petition for Reconsideration, arguing
that the OOR hastened to issue the Final Determination without addressing his June
2, 2022 request for extra time to research and respond to DOC’s May 23, 2022
position statement and, thus, violated his due process rights.8, 9 See R.R. at 48a-51a.
6
The OOR directed DOC to conduct a good faith search for records responsive to Request
item (5) and provide to Mack within 30 days either records discovered as a result of that search or
a statement that no such records exist. See OOR Final Determination at 3, R.R. at 40a.
7
Because DOC did not address the argument asserted in its denial letter that responsive
records were exempt under Section 708(b)(16) of the RTKL (relating to criminal investigations),
the OOR “deem[ed] the argument abandoned on appeal and [did] not address that issue in th[e]
Final Determination.” OOR Final Determination at 2 n.2, R.R. at 39a.
8
In his June 2, 2022 letter, Mack declared that because DOC mailed its May 23, 2022
position statement to him via Smart Communications, DOC’s Florida-based mail handler, he did
not receive it at SCI-Somerset until June 2, 2022, and, thus, he did not have adequate time to
research and respond thereto. He requested leave to file a reply to DOC’s position statement within
30 days. See R.R. at 37a. The OOR did not expressly consider Mack’s June 2, 2022 letter in its
Final Determination, nor did it include the letter in the Certified Record submitted to this Court.
9
Mack appended to the Petition for Reconsideration a copy of his proposed reply to DOC’s
May 23, 2022 position statement. See C.R., OOR Ex. 5 at 7-15.
6
On June 27, 2022, the OOR denied Mack’s Petition for Reconsideration. See R.R.
at 52a. On July 1, 2022, Mack appealed to this Court.10
On September 30, 2022, Mack filed a Motion for Modification of the
Record (Modification Motion), in which he asks this Court to supplement the
Certified Record to include the June 2, 2022 letter he submitted to the OOR seeking
an extension of time to research and reply to DOC’s May 23, 2022 position
statement. Therein, Mack represents:
On July 5, 2022[,] and again on July 18, 2022, [Mack]
contacted the [OOR] to request that it amend its record to
include his June 2, 2022 letter-request. The [OOR]
acknowledged that it had received the June 2, 2022 letter,
but rejected [Mack’s] request[] to amend or modify the
OOR[’s] record.
Modification Motion at 1-2. DOC opposed the Modification Motion. By October
31, 2022 Order, this Court directed that the Modification Motion be decided with
the merits of Mack’s appeal.
Initially, the RTKL mandates that
a “Commonwealth agency [(i.e., DOC)] shall provide
public records in accordance with [the RTKL].” [Section
301 of the RTKL,] 65 P.S. § 67.301. A record “in the
possession of [a] Commonwealth agency . . . shall be
presumed to be a public record” unless it is exempt under
Section 708 [of the RTKL], privileged, or exempt from
disclosure under other federal or state law or judicial
order. [Sections 305(a) and 701 of the RTKL, 65 P.S.] §§
67.305(a), 67.701. At the initial request stage, an agency
is required to assess the public status of requested records,
and, if applicable, specify reasons for denying access with
“citation of supporting legal authority.” [Section 903 of
the RTKL, 65 P.S.] § 67.903.
McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 400 (Pa. 2021).
10
“[This Court’s] standard of review of a final determination issued by the OOR is de novo
and our scope of review is plenary.” Pa. Tpk. Comm’n v. Elec. Transaction Consultants Corp.,
230 A.3d 548, 556 n.3 (Pa. Cmwlth. 2020).
7
If “the requested information is exempt under Section
708(b) [of the RTKL], the information is not a ‘public
record’ and is exempt from disclosure in its entirety.”
Dep’t of Lab[.] & Indus. v. Simpson, 151 A.3d 678, 684
(Pa. Cmwlth. 2016). Accordingly, exemptions must be
narrowly construed, and the agency claiming the
exemption bears the burden of proof by a preponderance
of the evidence.[11] See 65 P.S. § 67.708(a); see also [Off.
of Dist. Att’y of Phila. v.] Bagwell[, 155 A.3d 1119 (Pa.
Cmwlth. 2017)]; Pa. Off[.] of Inspector Gen. v. Brown,
152 A.3d 369 (Pa. Cmwlth. 2016); Simpson.
Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 180 (Pa. Cmwlth. 2019)
(footnote omitted).
However,
[w]hen parts of a record are public - meaning not exempt
by another law, privilege or exemption under Section
708(b) [of the RTKL, 65 P.S.] § 67.708(b) - an agency
“shall grant access to” the public parts of the record
pursuant to its disclosure duty. [Section 706 of the RTKL,
65 P.S.] § 67.706. Thus, by its plain and unambiguous
language, the RTKL places the statutory duty of disclosure
solely on the government agency.
McKelvey, 255 A.3d at 400.
Mack first argues that the OOR erred by accepting DOC’s
representation that its DEMO Unit funding and budget records do not exist.
Specifically, Mack asserts that the OOR abused its discretion by finding that AORO
Grant’s affidavit was sufficient to meet DOC’s burden of proving that the requested
financial records do not exist beyond DOC’s DEMO program purchase order log,
where AORO Grant only inquired of CSA Schenk (who is not responsible for
maintaining financial records), and the DEMO program is an independent,
segregated housing unit with special security protocols, and separate staffing,
11
“A preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.” Del. Cnty. v. Schaefer ex rel. Phila. Inquirer, 45
A.3d 1149, 1156 (Pa. Cmwlth. 2012).
8
equipment, meals, supplies, and activity equipment and yard, which has to somehow
be funded.
“As part of a good faith search, [an agency’s] open records officer has
a duty to advise all custodians of potentially responsive records about the request,
and to obtain all potentially responsive records from those in possession.”
Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 185 A.3d 1161, 1171-72 (Pa.
Cmwlth. 2018) (Uniontown Newspapers I), aff’d, 243 A.3d 19 (Pa. 2020)
(Uniontown Newspapers II) (emphasis added). In Uniontown Newspapers II, the
Pennsylvania Supreme Court agreed that “[a] good faith response - either to produce
records or assert an exemption - cannot occur absent a good faith search, followed
by collection and review of responsive records, so an agency has actual knowledge
about the contents of the relevant documents.” Id. at 28-29 (quotation marks
omitted). The Uniontown Newspapers II Court also “reject[ed] DOC’s contention
[that] the open records officer fulfills his or her obligation simply by relying on the
representations of others without inquiring as to what investigation was made and
without reviewing the records upon which the individual responding to the request
relied.” Id. at 28.
“An agency may meet its burden [of proving a good faith search]
through an unsworn attestation or a sworn affidavit.” Glob. Tel*Link Corp. v.
Wright, 147 A.3d 978, 980 (Pa. Cmwlth. 2016) (quoting W. Chester Univ. of Pa. v.
Schackner, 124 A.3d 382, 393 (Pa. Cmwlth. 2015)). “The affidavits must be
detailed, nonconclusory, and submitted in good faith. . . . Absent evidence of bad
faith, the veracity of an agency’s submissions explaining reasons for nondisclosure
should not be questioned.” McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374,
381 (Pa. Cmwlth. 2014) (quoting Off. of the Governor v. Scolforo, 65 A.3d 1095,
1103 (Pa. Cmwlth. 2013) (en banc ) (citation omitted)).
9
A requester bears the burden of proving an agency
committed bad faith. Evidence of bad faith is required.
[See] Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa.
Cmwlth. 2012). After-discovered records are a type of
evidence from which a court may discern bad faith. [See
Chambersburg Area Sch. Dist. v.] Dorsey[, 97 A.3d 1281(Pa. Cmwlth. 2014)]. Evidence of an agency’s failure to
perform its mandatory duties, including a failure to search
its records prior to a denial of access, may suffice. [See]
Dorsey; accord [Parsons v. Pa. Higher Educ. Assistance
Agency (]PHEAA[), 910 A.2d 177 (Pa. Cmwlth. 2006)].
Uniontown Newspapers I, 185 A.3d at 1170-71 (citation omitted).
Here, according to her affidavit, AORO Grant’s good faith search in
April 2022 consisted of inquiring only of CSA Schenk whether records responsive
to Request items (1) and (2) existed, and CSA Schenk’s response that there are not,
leading AORO Grant to attest that DOC did not possess DEMO Unit funding and
budget records. AORO Grant’s reliance on CSA Schenk’s statement that no records
existed “without inquiring as to what investigation was made,” did not constitute a
good faith search for the records. See Uniontown Newspapers II, 243 A.3d at 28. In
addition, AORO Grant stated that CSA Schenk was “likely” to have the records if
they existed, see R.R. at 32a, but because AORO Grant’s affidavit lacked certainty
that CSA Schenk was the keeper of the requested records, or a statement that AORO
Grant also inquired of another individual about the records, or an explanation for
why it was not necessary to ask someone in addition to CSA Schenk, DOC failed to
satisfy its duty to perform a good faith search.
Further, with its May 23, 2022 position statement, DOC produced a
copy of DOC’s DEMO program purchase order log not previously submitted in
response to Mack’s Request item (1). Such “[a]fter-discovered records are a type of
evidence from which [this Court] may discern bad faith[,]” and is “[e]vidence of an
agency’s . . . failure to search its records prior to a denial of access[.]” Uniontown
Newspapers I, 185 A.3d at 1171. Moreover, this Court has previously held that
10
“[DOC’s] failure to locate responsive records until motivated by [appeal/]litigation
evinces bad faith, meriting consideration by a fact-finder.” Id. at 1172. Under such
circumstances, “the veracity of [DOC’s] submissions explaining reasons for
nondisclosure should [] be questioned.” McGowan, 103 A.3d at 381. DOC’s
production of its after-discovered DEMO program purchase order log after DOC
denied Request item (1) should have alerted the OOR to question the veracity of
DOC’s denial of Request items (1) and (2), which, based on this Court’s review,
AORO Grant’s affidavit does not satisfy. Accordingly, the OOR erred by accepting
DOC’s representation based on AORO Grant’s affidavit that no DEMO budget and
funding records exist beyond DOC’s DEMO program purchase order log.
Mack next contends that the OOR erred by accepting DOC’s
representation that DEMO policies and procedures detailing its prisoner selection
criteria and which DOC personnel apply the criteria to make the selection are exempt
from disclosure based on personal and public safety concerns in Section
708(b)(1)(ii) and (2) of the RTKL. Specifically, Mack argues that Major Oliver’s
affidavit not only fails to identify applicable records, but consists of mere
speculation with no relation to actual facts that disclosure of such policies and
procedures would endanger personal or public safety, or otherwise impede DOC’s
ability to carry out its public protection function. In addition, Mack claims that
Major Oliver’s conclusory statements are contrary to DOC’s release of other similar
restricted housing unit policies and procedures.
Section 708(b)(1)(ii) of the RTKL exempts a record the disclosure of
which “would be reasonably likely to result in a substantial and demonstrable risk
of physical harm to or the personal security of an individual.” 65 P.S. §
67.708(b)(1)(ii).
To establish [a personal security exemption under Section
708(b)(1)(ii) of the RTKL], “the agency must demonstrate
11
(1) a ‘reasonable likelihood’ of (2) a ‘substantial and
demonstrable risk’ to a person’s personal security.” Del.
C[n]ty. v. Schaefer, 45 A.3d 1149, 1156 (Pa. Cmwlth.
2012). In order to show a reasonable likelihood, “[a]n
agency must offer more than speculation or conjecture to
establish the security-related exceptions under the
[RTKL].” Cal[.] Borough v. Rothey, 185 A.3d 456, 468
(Pa. Cmwlth. 2018). This Court has “defined substantial
and demonstrable [risk] as actual or real and apparent.”
Carey [v. Pa. Dep’t of Corr.], 61 A.3d [367,] 373 [(Pa.
Cmwlth. 2013)][12] . . . .
Suber-Aponte, 202 A.3d at 180 (emphasis omitted).
In addition, Section 708(b)(2) of the RTKL exempts from disclosure
“[a] record maintained by an agency in connection with . . . law enforcement or other
public safety activity that, if disclosed, would be reasonably likely to jeopardize or
threaten public safety. . . .” 65 P.S. § 67.708(b)(2).
“To establish [the public safety exemption under Section
708(b)(2) of the RTKL], an agency must show: (1) the
record at issue relates to a law enforcement or public safety
activity; and (2) disclosure of the record would be
reasonably likely to threaten public safety or a public
protection activity.” Smith ex rel. Smith Butz, LLC v. Pa.
Dep’t of Env[’t] Prot., 161 A.3d 1049, 1062 (Pa. Cmwlth.
2017). As is required by the RTKL’s personal security
exemption, more than mere speculation is necessary for
[DOC] to meet its burden under the public safety
exemption. Carey.
Suber-Aponte, 202 A.3d at 184.
Importantly,
[t]he RTKL is remedial legislation to facilitate
government transparency and promote accountability.
P[a.] State Police v. Grove, . . . 161 A.3d 877, 892 ([Pa.]
2017); Bowling v. Off[.] of Open Records, 990 A.2d 813,
12
Carey was supplemented by Carey v. Pennsylvania Department of Corrections (Pa.
Cmwlth. No. 1348 C.D. 2012, filed July 3, 2013) (unreported).
12
824 (Pa. Cmwlth. 2010)[,] aff’d[,] . . . 75 A.3d 453 ([Pa.]
2013). . . . [T]he statute dramatically expanded the
public’s access to government documents and
demonstrated an intent on the part of the General
Assembly to expand government transparency. Levy v.
Senate of P[a.], . . . 65 A.3d 361, 381 ([Pa.] 2013). The
RTKL is “designed to promote access to official
government information in order to prohibit secrets,
scrutinize the actions of public officials, and make public
officials accountable for their actions.” P[a.] State Educ[.]
Ass[’n] v. . . . Dep[’t] of C[mty.] & Econ[.] Dev[.], . . . 148
A.3d 142, 155 ([Pa.] 2016). For this reason, the law must
be construed to maximize access to public records that are
in an agency’s possession.
McKelvey, 255 A.3d at 399-400.
This Court acknowledges that “[p]ersonal security issues are of
particular concern in a prison setting.” Carey, 61 A.3d at 374. And, at first blush,
it would seem that revealing DOC’s DEMO program selection criteria and DOC
staff who make those selections could conceivably endanger DOC personnel and,
perhaps, public safety. However,
[t]his Court consistently holds that speculation and
conclusory statements in an affidavit do not show a
reasonable likelihood of a threat to security. An affidavit
that does nothing more than state that, based on the
affiant’s professional experience, the disclosure of the
information would create a substantial risk of physical
harm for the agency and the public is insufficient.
Id. at 376 (citation, quotation marks, and footnote omitted). Further, “[a]dequate
description of responsive records is crucial to demonstrate how disclosure threatens
public safety. Our close assessment of [Major Oliver’s a]ffidavit reveals that DOC
did not explain which records are protected and which are not.” Id. at 377.
In similar past RTKL litigation, this Court has found error where
DOC [] did not connect responsive records with a threat to
public safety. Nor did DOC explain how the disclosure of
communications is reasonably likely to impair transfers.
13
[And, although] DOC may be able to redact responsive
records and thus render them non-threatening to public
safety[,] . . . DOC did not disclose any records in redacted
form, and it offered no reason for its failure to do so.
Id. at 377 (citation omitted).
Moreover, DOC did not address Mack’s claims that the DEMO Unit’s
policies and procedures are similar, if not identical, to DOC’s other restricted
housing unit policies and procedures, which are available for public access and, as
such, present no more substantial, demonstrable personal or public safety risk.
This Court has ruled:
When security-related ex[em]ptions are asserted in the
police or prison context, and responsive records implicate
valid security concerns, and an agency’s proof is
insufficient to discern the contents of responsive records,
seeking additional evidence may be appropriate. Dep’t of
Env[’t] Prot. v. Cole, 52 A.3d 541, 551 (Pa. Cmwlth.
2012) (regarding additional evidence generally); Schaefer
(remanding to trial court to assess personal security
exception); Dep’t of Admin. Servs./ASCI v. WTAE-TV, 13
A.3d 1025 (Pa. Cmwlth. 2011) (en banc) (same); see
generally Bowling.
Here, . . . DOC did not describe the responsive records or
connect the security threat to them, and the records relate
to prison operations, heightening the risk associated with
disclosure. Without more information, [the OOR was]
remiss in deciding this case on the current record.
Id. at 377 (citation omitted). Accordingly, the OOR erred by accepting DOC’s
representation based on Major Oliver’s affidavit that all requested DEMO policies
and procedures are exempt from disclosure based on personal and public safety
concerns in Section 708(b)(1)(ii) and (2) of the RTKL.
Lastly, Mack asserts that the OOR erred by refusing to grant Mack
sufficient time to prepare and submit argument in support of his Request. However,
the OOR allowed both parties to supplement the record by May 23, 2022, and offered
14
an opportunity for either party to seek an extension of the May 23, 2022 deadline.
See C.R., Ex. 2 at 2. Mack did not supplement the record by May 23, 2022, or
request an extension of time in which to do so. In addition, there is no procedural
mechanism for Mack to reply to DOC’s May 23, 2022 position statement.
The OOR denied Mack’s Petition for Reconsideration on the following
basis:
[Mack] has not cited to any deprivation of due process.
Upon assignment of the appeal, both parties were notified
of a record closing date [(i.e., May 23, 2022)]. Further,
[DOC] did not raise new grounds for denial on appeal;
therefore, [Mack] had notice of [DOC’s] bases for denial
and an opportunity to make a submission in support of his
appeal to the OOR. Based on the record, [Mack] simply
failed to file a timely reply and provides no evidence that
any violation of his due process rights caused the untimely
filing. Finally, . . . the [OOR] [a]ppeals [o]fficer did not
issue the Final Determination prematurely, as it was issued
two weeks after the record closing deadline [(i.e., June 6,
2022)].
R.R. at 52a. This Court finds no error in the OOR’s reasoning and adopts the same
to deny the Modification Motion.
Based on the foregoing, the Modification Motion is denied. The portion
of the OOR’s Final Determination requiring DOC to conduct a good faith review for
records responsive to Request item (5) is affirmed. The OOR’s dismissal of Request
item (1) as moot, and the OOR’s denial of Mack’s challenges to DOC’s responses
to Request items (1), (2), (3), and (4) are vacated, and this matter is remanded to the
OOR to order DOC to: conduct a good faith search for records responsive to Request
items (1) and (2) for DEMO budget records beyond DOC’s DEMO program
purchase order log and records showing the source of all funding for the DEMO
program and operations, and provide to Mack, within 30 days, either records
15
discovered as a result of that search (subject to appropriate redaction, if applicable),
or a statement that no DEMO budget records exist beyond DOC’s DEMO program
purchase order log or such other funding records exist; and to order DOC to identify
the records responsive to Request items (3) and (4), declare whether and how such
records may differ from similar publicly posted DOC restricted housing procedures,
specify how the security-related exemptions in Section 708(b)(1)(ii) and (2) of the
RTKL apply thereto, and state why the security related information cannot be
redacted.
_________________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sherman Mack, :
Petitioner :
:
v. :
:
Department of Corrections :
(Office of Open Records), : No. 699 C.D. 2022
Respondent :
ORDER
AND NOW, this 26th day of July, 2023, the Office of Open Records’
(OOR) Final Determination is AFFIRMED in part and VACATED in part, and the
matter is REMANDED to the OOR to take further action consistent with this
Opinion.
The Motion for Modification of the Record is DENIED.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge