Moore v. Office of Open Records
Commonwealth Court of Pennsylvania
No. 1638, C.D. 2009
March 25, 2010
The Commonwealth Court held that when responding to a Right to Know Law request, an agency is not required to create a record that does not exist.
Background
Michael Moore, a state prison inmate, submitted a Right to Know Law request to the Department of Corrections seeking copies of the “Order of Commitment” and “Judgment of Sentence” documents relating to his incarceration.
The department provided Moore with the Order of Commitment, but informed him that the Judgment of Sentence “does not currently exist.” Moore appealed to the Office of Open Records.
For the appeal, the department produced two witness statements saying that the Judgment of Sentence document did not currently exist. Based on these statements, the OOR determined the department met its burden of proving the record did not exist and thus properly denied Moore’s request.
Moore then appealed to the Commonwealth Court.
Commonwealth Court Decision
On appeal, Moore argued that the department’s statement that the document “does not currently exist” implies that it previously existed and should be subject to the RTKL.
The Commonwealth Court, however, noted that the RTKL expressly states that “an agency shall not be required to create a record which does not currently exist.”
Given the evidence produced by the Department, the Court determined that the department sufficiently proved the non-existence of the record and was not required to create the document in response to Moore’s request.