Right to Know Request of K. M. Miller, AY-9526, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Right to Know Request of Kenneth Malik Miller, AY-9526 Petition of: Kenneth Malik Miller BEFORE: : : : : : : No. 2026 C.D. 2007 Submitted: April 4, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: May 23, 2008 Kenneth Malik Miller petitions for review of the final determination entered by the Pennsylvania Department of Corrections' Right-to-Know Law Exceptions Officer, Executive Deputy Secretary John S. Shafer, Ph.D. (Exceptions Officer), who dismissed Miller's exceptions to a decision of the agency's Right-toKnow Officer Nelson Zullinger denying in part and granting in part Miller's request for agency records. The Exceptions Officer dismissed Miller's exceptions due to his failure to address specifically why the requested documents were public records and to address the stated grounds for the agency's initial denial of the request.1 1 The Court's review of an agency decision is to determine whether constitutional rights have been violated, whether an error of law has been committed and whether necessary findings of fact are supported by substantial evidence in the record. Parsons v. Urban Redevelopment Authority of Pittsburgh, 893 A.2d 164 (Pa. Cmwlth. 2006). Miller is an inmate incarcerated at the State Correctional Institution at Huntingdon under Inmate Number AY-9526. The Department received Miller's request, dated August 3, 2007 and submitted pursuant to the Act known as the Right-to-Know Law (RTKL) in effect at the time, see Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§66.1 - 66.9, for Job Specifications for the Department's Deputy of Security, Captain of Security and Lieutenant of Security and for the bank deposit slips for money confiscated from Miller on March 19, 2004. The Right-to-Know Officer granted Miller's request for the Job Specifications and indicated that he could access the records at the Department facility where they were located or have the documents mailed to him at a cost of $1.35 for copies plus mailing for a cost of $2.33. The Right-to-Know Officer denied Miller's request for the bank deposit slips because the documents did not currently exist. Citing Section 2(e) of the RTKL, 65 P.S. §66.2(e), and Bargeron v. Department of Labor and Industry, Unemployment Compensation Board of Review, 720 A.2d 500 (Pa. Cmwlth. 1998), the Right-to-Know Officer stated that the agency was not required to create a record where one did not currently exist or to compile, format or organize a public record in a manner in which it is not currently compiled, formatted or organized. Miller was advised of his right to file exceptions to the Exceptions Unit within fifteen days of the mailing date of the denial notice, stating the reasons why he claimed the denied records to be public records and why he disagreed with the Right-to-Know Officer's stated reasons for denying the request for the bank deposit slips. In his exceptions letter, Miller indicated that he disagreed with denial of the bank deposit slips for several reasons: he presently is involved in a civil action in federal court; the evidence was used at a hearing to sanction him; the 2 evidence was not presented at the hearing; the monies confiscated from him allegedly were deposited in a bank to be placed in the Inmate General Welfare Fund; he needed the deposit sheet to show that the monies never existed; and it is public knowledge and in the public good. The Exceptions Officer, by final determination of October 18, 2007, dismissed the exceptions because, as indicated above, Miller did not address with specificity why the requested documents were public records and did not address the stated grounds for the Right-to-Know Officer's denial of Miller's request. The Exceptions Officer cited Section 3.5(a) of the RTKL, added by Section 4 of the Act of June 29, 2002, P.L. 663, 65 P.S. §66.3-5(a), and Martella v. Department of Transportation, 841 A.2d 633 (Pa. Cmwlth. 2004). He indicated that even if he were to reach the merits he would affirm the denial of access to the bank deposit slips because Miller's request did not involve public records under the RTKL. See also Nanayakkara v. Casella, 681 A.2d 857 (Pa. Cmwlth. 1996). In his pro se brief, Miller states six questions involved although only one specifically concerns the matter before the Court. In his fourth stated question, Miller asserts that his due process rights were violated when his request was denied to inspect and copy public records, which include "accounts, vouchers, or contracts dealing with disbursement of funds, or the acquisition, use or disposal of services or supplies." Miller Brief at p. 5.2 Miller argues the constitutional violations that 2 The remaining questions involve claims of violation of Miller's constitutional rights related to: (1) misconduct charges against him and a confiscation slip regarding alleged illegal contraband found on him; (2) his request that the illegal contraband be presented at hearing and for a handwriting test and presentation of a witness who would have cleared him of false charges; (3) the agency's claims that the alleged evidence was destroyed prior to hearing when placement of the evidence did not conform to procedure or law; (4) state employees' falsification (Footnote continued on next page ¦) 3 allegedly were committed against him, see n2, and in connection with his request under the RTKL he merely cites to the inmate handbook and Section 1, 65 P.S. §66.1, which defines "public record." Miller seeks an order from this Court granting him permission to review and/or copy the bank records and awarding attorney's fees, punitive and monetary damages and other non-related relief. Citing Martella, the Department argues that because Miller failed to comply with the specificity requirements for filing exceptions to the Right-toKnow Officer's denial of access, the Exceptions officer did not err in affirming the partial denial of access. Alternatively, the Department argues that the Exceptions Officer was correct when he concluded that, on the merits, Miller failed to meet his burden to show that the requested records are public records subject to disclosure. Also, Miller's reasons for requesting records are irrelevant, Pennsylvania State University v. State Employees' Retirement Board, 880 A.2d 757 (Pa. Cmwlth. 2005), aff'd, 594 Pa. 244, 935 A.2d 530 (2007), and his brief is almost entirely devoted to arguments related to institutional misconduct charges that are not before the Court. Further, the agency has no duty to create records that do not exist. A thorough review of this matter shows that the Exceptions Officer properly dismissed Miller's exceptions because he failed to comply with specific requirements for filing the exceptions, i.e., he failed to address why the requested records are public records and the Right-to-Know Officer's determination that the bank deposit slips currently do not exist and that the agency is not required to (continued ¦) of official documents to sanction Miller to 360 days in solitary confinement based on a two-year and nine-months old charge; and (5) sanction of solitary confinement and transfer to a distant facility away from his family due to the conduct of the Department's officials. 4 create records where none exist. In Martella the Court observed that the purpose of filing exceptions under the RTKL is the same as that for filing exceptions in judicial proceedings; proper exceptions must specify the errors made by the Rightto-Know Officer and are a means of allowing the agency to correct its errors. A party's failure to file proper exceptions constitutes sufficient cause in and of itself for dismissal of the exceptions. Id. Assuming arguendo that the Court should decide the merits, it agrees with the Exceptions Officer's conclusion that Miller failed to meet his burden to show that the requested records are public records. Section 1 of the RTKL defines a "public record" that is subject to disclosure under the act to include "[a]ny account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons ¦." Miller bore the burden of proving, inter alia, that the bank deposit slips constituted a minute, order or decision of the agency and that as public records they are subject to disclosure under the RTKL. Nittany Printing & Publ'g Co., Inc. v. Centre County Board of Comm'rs, 627 A.2d 301 (Pa. Cmwlth. 1993). Miller failed to even mention the category under which the requested records fall; he simply asserted without discussion that the bank deposit slips are public records. Moreover, even if Miller met his burden, an agency cannot be required to create records that do not exist. Bargeron. Finding no error, the Court must affirm the final determination. DORIS A. SMITH-RIBNER, Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Right to Know Request of Kenneth Malik Miller, AY-9526 Petition of: Kenneth Malik Miller : : : : : : No. 2026 C.D. 2007 ORDER AND NOW, this 23rd day of May, 2008, the Court affirms the final determination of the Department of Corrections' Right-to-Know Law Exceptions Officer, Executive Deputy Secretary John S. Shafer, Ph.D. DORIS A. SMITH-RIBNER, Judge

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