William Rosado, v. Lebanon County District Attorney’s Office

William Rosado, v. Lebanon County District Attorney’s Office

Civil Action-Law-Right to Know Law-Number of Arrests at a Particular Location-Final Determination of Office of Open Records-Local Agency-District Attorney’s Office-Standard of Review-Scope of Review-Burden of Proof-Existence of Sought Records

William Rosado (“Rosado”) sought records from the Lebanon County District Attorney’s Office establishing the number of arrests by the Lebanon County Drug Task Force at the Days Inn.  The request for information was denied by the Lebanon County District Attorney’s Office on the basis that it did not possess the records sought.  Rosado appealed the Final Determination by the Office of Open Records in this regard. 

1.  When an individual files an appeal of a final determination regarding a Right to Know request, the Court of the Common Pleas in the locale of the agency may review the appeal.     

2.  A county’s district attorney office is a local agency for the purposes of the Right to Know Law. 

3.  The standard of review in an appeal to the Court of Common Pleas from a final determination of the Office of Open Records is de novo. 

4.  The scope of the review of the Court of Common Pleas is plenary.

5.  An agency is not required to create a record if the requested record does not exist or to compile a record requested in a new or novel format.

6.  The burden of proving that a record does not exist lies upon the agency responding to the Right to Know request. 

7.  An agency may satisfy its burden of proof that it does not possess a requested record either with an unsworn attestation by the person who searched for the sought record or a sworn affidavit of the nonexistence of the record. 

8.  In light of the fact that the Open Records Officer for the Lebanon County District Attorney’s Office signed an unsworn attestation that he searched for the requested records and the requested records do not exist, the Lebanon County District Attorney’s Office has satisfied its burden of proof that it does not possess the requested records. 

L.C.C.C.P. No. 2022-01286, Opinion by Bradford H. Charles, Judge, January 26, 2023.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

DOMESTIC RELATIONS SECTION

            WILLIAM ROSADO,                                   :           NO. 2022-01286

            Responder                                       :          
                                                                                    :

                                                                                    :          

            v.                                                                     :          

LEBANON COUNTY DISTRICT  :

ATTORNEY’S OFFICE,                 :          

          Respondent                                       :

                                                                                    :              

                                                                                    :                      

:             

                                                                                    :

ORDER OF COURT

            AND NOW, this 26th day of January, 2023, the Responder’s appeal to the Office of Open Records’ Final Determination is hereby DENIED.

BY THE COURT:

                                                                                                                    J.

                                            BRADFORD H. CHARLES

BHC/oeh

cc:       District Attorney

William D. Maldonado Rosado MQ9663// SCI Camp Hill, PO Box 8837, 2500 Lisburn Rd., Camp Hill PA 17001-8837

Matthew Eisenberg, Esq.// 333 Market St. 16^th Floor Harrisburg, PA 17101

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

DOMESTIC RELATIONS SECTION

            WILLIAM ROSADO,                                   :           NO. 2022-01286

            Responder                                       :          
                                                                                    :

                                                                                    :          

            v.                                                                     :          

LEBANON COUNTY DISTRICT  :

ATTORNEY’S OFFICE,                 :          

          Respondent                                       :

                                                                                    :              

                                                                                    :                      

:             

                                                                                    :

APPEARANCES

DISTRICT ATTORNEY                                                     For Respondent

Pro se                                                                                    For Responder

OPINION BY CHARLES, J., January 26, 2023

            Before us is an appeal of the Office of Open Record’s Final Determination of the Responder’s Right to Know Request. When reviewing an appeal of a Final Determination, we are instructed to “clearly and concisely explain the rationale for the decision.” In today’s relatively terse Opinion, we find that the District Attorney’s Office satisfied its burden to prove that the records that the Responder requested do not exist, and we will therefore AFFIRM the Final Determination made by the Office of Open Records.

I.          FACTS

William Maldonado Rosado (hereafter, “ROSADO”) filed a Right to Know Law (RTKL) request to the Lebanon County District Attorney’s Office (hereafter, “OFFICE”) on August 3, 2022 seeking the “number of arrests by the Lebanon County Drug Task Force, at the Days Inn, on Quentin Road, Lebanon [Pennsylvania].” That same day, OFFICE denied the request. OFFICE averred that it did not possess the records in question. ROSADO filed an appeal with the Office of Open Records (OOR) on August 19, 2022.

On September 19, 2022, the OOR filed its Final Determination, denying ROSADO’s appeal. On October 14, 2022, we filed an Order in which we construed ROSADO’s appeal as an appeal to the OOR’s Final Determination. This Opinion follows.

II.         DISCUSSION

When a requestor files an appeal to a Final Determination, the Court of Common Pleas where the agency sits may review the appeal. 65 P.S. § 67.1302(a). Our Supreme Court has held that a county’s district attorney office is a local agency for the purposes of the RTKL. Miller v. County of Centre, 173 A.3d 1162 (Pa. 2017). The court’s decision on appeal “shall contain findings of fact and conclusions of law based upon the evidence as a whole” and “clearly and concisely explain the rationale for the decision.” 65 P.S. §§ 67.1301(a); 67.1302(a). The record on appeal consists of the request, the agency’s response, the appeal filed with the OOR, the hearing transcript, if any, and the final written determination of the appeals officer. 65 P.S. § 67.1303(b). The standard of review in appeals to the Court of Common Pleas from final OOR determinations is de novo; the scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 476-77 (Pa. 2013).

ROSADO argues that OFFICE must be in possession of the records for which he requests. An agency is not required to create a record if the requested record does not exist. Nor is it required to compile the record in a new or novel format. 65 P.S. § 67.705.9; see also Moore v. Office of Open Records, 992 A.2d 907, 908–909 (Pa. Cmwlth.2010). The burden of proving a record does not exist is placed on the agency responding to the right-to-know request. See 65 P.S. § 67.708. Our Commonwealth Court has held that an 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. Moore, supra at 908-909.

Reviewing the record before us reveals that Chief Jonathan Hess, Open Records Officer for OFFICE signed an unsworn attestation that he searched for the records that ROSADO requested and that the records do not exist. Because an unsworn attestation that the records in question do not exist is sufficient to rebut the presumption of their existence, we are satisfied that OFFICE has satisfied its burden. Accordingly, we will affirm the OOR’s Final Determination to deny ROSADO’s appeal.

III.        CONCLUSION

            Our Commonwealth Court has held that the burden of proof placed on a local agency that it is not in possession of requested records may be rebutted by an unsworn attestation that a record does not exist. In the case before us, the Open Records Office of the Lebanon County District Attorney’s Office filed an unsworn attestation that the records that he searched for the records that the ROSADO requested and determined that they do not exist. We therefore find that the OFFICE satisfied its burden that the records do not exist. Accordingly, we will deny ROSADO’s appeal of the OOR’s Final Determination. An Order will be entered today’s date.