COVID-19 @ Corrections, BoP(s), Correctional Facilities/Institutions (Department of Corrections)

Dear Ms. Best,

This email acknowledges receipt by the Department of Corrections of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on April 23, 2020. A final response will be sent at a later time as outlined below.

You are hereby notified that, for the reason set forth below, the Department will require an additional 30 calendar days, i.e. until July 1, 2020, in which to provide a final written response to your request:

* A legal review is necessary to determine whether the record requested is subject to access under the Act.

At this time, the Department is unable to provide you with an estimated cost to fulfill your current request if it is granted. Any actual or estimated fees will be identified in the Department's future response.

Sincerely,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov<http://www.cor.pa.gov>

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege.

Dear Ms. Best,

This email acknowledges receipt by the Department of Corrections (the Department) of your written request for records under the Pennsylvania Right-to-Know Law (RTKL). Your request was received by this office on April 23, 2020.

Items 1, 2, 4, 5, 9, 10, 11, and 14 of your request are granted in full. The records responsive to items 1, 2, 4, 9, 10, 11, and 14 are attached to this email at no charge. The information responsive to item 5 of your request is available on the Department's website at the following web address: www.cor.pa.gov<http://www.cor.pa.gov>.

Items 6, 7, and 13 of your request are granted to the extent that you are seeking the information attached to this email responsive to these items of your request. This information is attached to this email at no charge. To the extent that you are seeking information other than the information granted in response to these items of your request, these items of your request are denied for the following reason:

* The record(s) that you requested do not currently exist. When responding to a request for access, an agency is not required to create a record which does not currently exist or to compile, format or organize a public record in a manner in which it does not currently compile, format or organize the public record. 65 P.S. § 67.705; See Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010)("The Department cannot grant access to a record that does not exist. Because under the current RTKL the Department cannot be made to create a record which does not exist, the OOR properly denied [the] ... appeal."); See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa.Cmwlth. 1998). See also McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 382-83 (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 the [d]epartment's affidavits should be accepted as true.").

Items 3 and 8 of your request are denied for the following reason:

* The record(s) that you requested do not currently exist. When responding to a request for access, an agency is not required to create a record which does not currently exist or to compile, format or organize a public record in a manner in which it does not currently compile, format or organize the public record. 65 P.S. § 67.705; See Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010)("The Department cannot grant access to a record that does not exist. Because under the current RTKL the Department cannot be made to create a record which does not exist, the OOR properly denied [the] ... appeal."); See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa.Cmwlth. 1998). See also McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 382-83 (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 the [d]epartment's affidavits should be accepted as true.").

As of this response, the Department has been unable to locate any records responsive to item 12 of your request. However, we are continuing to search for information responsive to this item and will forward it to you as soon as possible if responsive information is located unless it falls within the following exemptions of the RTKL:

* The requested records fall within the personal security exemption of the RTKL. 65 P.S. § 67.708(b)(1)(ii). That section exempts from access any 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. Id. See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa. Cmwlth. 1998); Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

* The requested records fall within an exemption of the RTKL. Specifically, the RTKL excludes records 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 or preparedness or a public protection activity. 65 P.S. § 67.708(b)(2). The requested records are records maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates. The disclosure of the requested records would threaten public safety and the Department's public protection activities in maintaining safe and secure correctional institutions by allowing inmates or others to access information that can be used to undermine the Department's security procedures. Therefore, disclosure of these types of records is excluded under the RTKL. Weaver v. Department of Corrections, 702 A.2d 370 (Pa.Cmwlth. 1997).

* The requested records fall within the criminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to or resulting in a criminal investigation, including, but not limited to: complaints of potential criminal conduct other than a private criminal complaint; investigative materials, notes, correspondence, videos and reports; records that include the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised; records that includes information made confidential by law or court order; victim information, including any information that would jeopardize the safety of the victim; and records that, if disclosed, would reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges, deprive a person of the right to a fair trial or an impartial adjudication, impair the ability to locate a defendant or codefendant, hinder an agency's ability to secure an arrest, prosecution or conviction or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(16).

* The requested records fall within the noncriminal investigation exemption of the RTKL. Specifically, the RTKL exempts from disclosure records of an agency relating to a noncriminal investigation, including, but not limited to: complaints submitted to an agency; investigative materials, notes, correspondence and reports; records that include the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law; records that include information made confidential by law; work papers underlying an audit; and records that, if disclosed, would reveal the institution, progress or result of an agency investigation, deprive a person of the right to an impartial adjudication; constitute an unwarranted invasion of privacy, hinder an agency's ability to secure an administrative or civil sanction, or endanger the life or physical safety of an individual. 65 P.S. § 67.708(b)(17). See Amro v Office of AG, 783 A.2d 897, (Pa. Cmwlth. 2001); Senk v. Commonwealth, 521 A.2d 532 (Pa. Cmwlth. 1987).

* The RTKL exempts records 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. 65 P.S. § 67.708(b)(5). Hunt v. Pennsylvania Department of Corrections, 698 A.2d 147, 150 (Pa.Cmwlth. 1997); Neyhart v Department of Corrections, 721 A.2d 391 (Pa.Cmwlth. 1998). Please note that the department policy does allow inmates to access specific staff members to discuss medical records and medical issues. Please refer to DC-ADM 003 for the procedures to make such a request or for further information.

* The RTKL exempts personal identification information from disclosure. 65 P.S. § 67.708(b)(6). Personal identification information includes, but is not limited to a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification number, a spouse's name, marital status, beneficiary or dependent information or the home address of a law enforcement officer or judge. Id.

* The RTKL exempts from disclosure records that reflect the internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations. 65 P.S. § 67.708(b)(10)(i)(A); see also Lavalle v. Office of General Counsel, 769 A.2d 449 (Pa. 2001); Tribune-Review Publishing Co. v. Department of Community & Economic Development, 814 A.2d 1261, 1263-1264 (Pa. Cmwlth. 2003); City Council v. Greene, 856 A.2d 217, 225 n.6 (Pa. Cmwlth. 2004).

* The requested records are also covered by the deliberative process privilege and are not public records under the law. 65 P.S. § 67.102 (See definitions of "public record" and "privilege"); 65 P.S. § 67.506(c). The deliberative process privilege applies to pre-decisional communications which reflect on legal or policy matters. Tribune-Review Publishing Co. v. Department of Community & Economic Development, 814 A.2d 1261, 1263-1264 (Pa. Cmwlth. 2003); See also Lavalle v. Office of General Counsel, 769 A.2d 449 (Pa. 2001); City Council v. Greene, 856 A.2d 217, 225 n.6 (Pa. Cmwlth. 2004).

* The requested records are covered by the attorney client privilege and are not public records under the law. 65 P.S. § 67.102.

If information regarding item 12 is located, we will notify you if any of the above exemptions apply and forward the responsive granted information to you. Otherwise, this item of your request is denied for the following reason:

* The record(s) that you requested do not currently exist. When responding to a request for access, an agency is not required to create a record which does not currently exist or to compile, format or organize a public record in a manner in which it does not currently compile, format or organize the public record. 65 P.S. § 67.705; See Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010)("The Department cannot grant access to a record that does not exist. Because under the current RTKL the Department cannot be made to create a record which does not exist, the OOR properly denied [the] ... appeal."); See also Bargeron v. Department of Labor and Industry, 720 A.2d 500 (Pa.Cmwlth. 1998). See also McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 382-83 (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 the [d]epartment's affidavits should be accepted as true.").

You have a right to appeal the above denial of information in writing to the Executive Director, Office of Open Records (OOR), 333 Market Street, 16th Floor, Harrisburg, Pennsylvania 17101. If you choose to file an appeal you must do so within 15 business days of the mailing date of this response and send to the OOR:

1) this response; 2) your request; and 3) the reason why you think the agency is wrong in its reasons for saying that the record is not public (a statement that addresses any ground stated by the agency for the denial). If the agency gave several reasons why the record is not public, state which ones you think were wrong.

Also, the OOR has an appeal form available on the OOR website at:

http://www.openrecords.pa.gov/RTKL/Forms.cfm.

Sincerely,

Andrew Filkosky | Agency Open Records Officer
Department of Corrections | Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Phone: 717.728.7770 | Fax: 717.728.0312
www.cor.pa.gov<http://www.cor.pa.gov>

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
ATTORNEY WORK PRODUCT
The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege.