TIRADO v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

No. 1328 C.D. 2016.

Andrew Tirado, Petitioner, v. Pennsylvania Department of Corrections, Respondent.

Commonwealth Court of Pennsylvania.

Filed: July 14, 2017.


Attorney(s) appearing for the Case

Andrew Tirado, for Petitioner, Pro Se.

Maria Gerarda Macus , Pennsylvania Department of Corrections, for Respondent, Pennsylvania Department of Corrections.

Theron Richard Perez , PA Department of Corrections, for Respondent, Pennsylvania Department of Corrections.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.


OPINION NOT REPORTED

MEMORANDUM OPINION BY JULIA K. HEARTHWAY, Judge.

Andrew Tirado petitions pro se for review of a final determination of the Office of Open Records (OOR) denying his request for records from the Pennsylvania Department of Corrections (Department). We affirm.

Tirado is an inmate incarcerated at the State Correctional Institutution at Dallas (SCI-Dallas). On May 16, 2016, Tirado submitted a request for a copy of his sentencing order to the Department pursuant to the Right-to-Know Law (RTKL).1 On May 24, 2016, the Department responded, stating that it does not possess any records responsive to Tirado's request.

Stating that the record must exist, Tirado appealed to the OOR on June 13, 2016. On June 14, 2016, the Department submitted to OOR a position statement asserting that no records responsive to Tirado's request are in the possession or control of the Department. The Department also submitted an affidavit from the records supervisor at SCI-Dallas attesting to a search of the Department's records that failed to yield any documents to Tirado's request. Tirado did not present any evidence to the OOR. Based on the record before it, the OOR determined that the Department met its burden of proving that Tirado's sentencing order was not in its possession or control.2 We agree with the determination of the OOR.

In his appeal to this Court,3 Tirado does not contest the determination of the OOR. Instead, he argues that his incarceration is unlawful. At the conclusion of his brief, Tirado sets forth a "Disclaimer," stating that it is not his aim to challenge the findings of the OOR, but that his true intention is to challenge the constitutionality of his confinement. (Tirado brief at 28.) "However, an appeal from an OOR order denying [a prisoner's] request for access to a public record is not the proper forum to challenge the constitutionality of his continued incarceration." Moore v. Office of Open Records, 992 A.2d 907, 910 (Pa. Cmwlth. 2010).

Accordingly, we affirm the determination of the OOR.

ORDER

AND NOW, this 14th day of July, 2017, the order of the Office of Open Records in the above-captioned matter is affirmed.

FootNotes


1. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2. The OOR also advised Tirado that he could seek a copy of his sentencing order from the sentencing court. (Final Determination, July 11, 1016, at 1 n.1.)
3. Our review under the RTKL is de novo, and we may adopt the agency's findings or substitute them with our own. Bowling v. Office of Open Records, 75 A.3d 453, 474 (Pa. 2013). Our scope of review under the RTKL is plenary. Id. at 476.

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