f! . OFFICE OF OPEN RECORDS September 14, 2017 Filed Electronically Of?ce of the Prothonotary Court of Common Pleas of Philadelphia County First Judicial District of Civil Trial Division City Hall Philadelphia, PA 19107 RE: Submission of Record in: Philadelphia DistrictAttomey?s Of?ce v. Austin Nolen, August Term 2017 No. 02099 Dear Prothonotary: We hereby submit the record in the above-referenced matter. Section 1303 of the Right- to?Know Law, 65 PS. 67.101, er seq., de?nes the Record on Appeal as ?the record before a court shall consist of the request, the agency?s response, the appeal filed under section 1101, the hearing transcript, if any, and the ?nal written determination of the appeals of?cer.? Pursuant to Department of Transportation 12. O??ice of Open Records, 7 A.3d 329 (Pa. Commw. Ct. 2010), this record includes all ?evidence and documents admitted into evidence by the appeals of?cer pursuant to Section The record in this matter consists of the following: Of?ce of Open Records Docket No. 2017-1091: 1. The appeal ?led by Austin Nolen (?Requester?) to the Of?ce of Open Records received May 19, 2017. 2. Of?cial Notice of Appeal dated May 22, 2017, sent to both parties by the OOR, advising them of the docket number and identifying the appeals of?cer for the matter. 3. Philadelphia District Attorney?s Of?ce?s extension request dated May 31, 2017. 4. Requester?s email regarding a submission schedule dated May 31, 2017. 5. email dated June 1, 2017, modifying the submission schedule and requesting a three-week extension in issuing the ?nal determination. Commonwealth Keystone Building 400 North Street. 4th Floor Harrisburg. PA 17120-0225 717.346.9903 717.425.5343 I openrecordspagov Of?ce of the Prothonotary September 14, 2017 Court of Common Pleas of Philadelphia County Page Two 6. Requester?s email dated June 7, 2017 granting the request for a three-week extensron. 7. submission dated June 8, 2017. 8. Requester?s submission dated June 14, 2017. 9. supplemental submission dated June 22, 2017. 10. email dated June 30, 2017, requesting a two-week extension to issue the ?nal determination. 11. Request?s email dated June 30, 2017, agreeing to the extension. 12. email dated July 5, 2017, con?rming Requester?s extension agreement and explaining the need for the additional time. 13. The Final Determination dated July 24, 2017, issued by the 00R. The OOR has discretion to hold a hearing on appeals ?led but chose not to do so in this matter. Therefore, there is no transcript to transmit. Certi?cation of the record in this case is attached to this letter. Please feel free to contact us for any reason in connection with this matter. Sincerely, Charles Rees Brown Chief Counsel Attachments cc: Austin Nolen (Requester) Philadelphia District Attomey?s Of?ce (Agency) IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF CIVIL TRIAL DIVISION PHILADELPHIA DISTRICT OFFICE, August Term 2017 Petitioner v. No. 02099 AUSTIN NOLEN, Respondent CERTIFICATION OF RECORD I hereby certify the contents of the record transmitted with this Certi?cation of Record pursuant to 1952 in Austin Nolen v. Philadelphia District Attorney ?3 O?ice, 00R Dkt. AP 2017-1091, which is the subject of this appeal. The record transmitted with this certi?cation is generated entirely from the Of?ce of Open Records database. It is our practice to scan in each and every document submitted in an appeal. Thus, no originals are being transmitted to this Court. Also, my signature on this Certi?cation of Record and on all other correspondence directed to the Court in connection with this matter may be electronic and not original. I hereby certify that this is my true and correct signature and that I have approved the use thereof for these purposes. Erik Ameson, Executive Director Of?ce of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903 Fax: (717) 425-5343 E-mail: OpenRecords@pa.gov Dated: September 14, 2017 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF CIVIL TRIAL DIVISION PHILADELPHIA DISTRICT OFFICE, August Term 2017 Petitioner v. No. 02099 AUSTIN NOLEN, Respondent CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the Certi?ed Record upon the following persons via e-mail addressed to their e-mail address as follows: Austin Nolen Douglas Weck, Esquire PO Box 29476 Philadelphia District Attomey?s Of?ce Philadelphia, PA 19125 Civil Litigation Unit anolen@phillydeclaration.org Three South Penn Square . Philadelphia, PA 19107 Douglas.Weck@phila.gov War Faith Henry Administrative Of?cer Of?ce of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903 Fax: (717) 425-5343 E-mail: Dated: September 14, 2017 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF CIVIL TRIAL DIVISION PHILADELPHIA DISTRICT OFFICE, August Term 2017 Petitioner v. No. 02099 AUSTIN NOLEN, Respondent CERTIFIED RECORD Charles Rees Brown Chief Counsel Commonwealth of Of?ce of Open Records Commonwealth Keystone Building 400 North Street - Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903 Fax: (717) 425?5343 E-mail: CharleBrow@pa.gov September 14, 2017 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF CIVIL TRIAL DIVISION PHILADELPHIA DISTRICT OFFICE, August Term 2017 Petitioner v. No. 02099 AUSTIN NOLEN, Respondent TABLE OF CONTENTS RECORD Austin Nolen v. Philadelphia District Attorney ?3 Office, Of?ce of Open Records Docket No. 2017-1091: 1. The appeal ?led by Austin Nolen (?Requester?) to the Of?ce of Open Records received May 19, 2017. 2. Official Notice of Appeal dated May 22, 2017, sent to both parties by the OCR, advising them of the docket number and identifying the appeals of?cer for the matter.- A 3. Philadelphia District Attomey?s Of?ce?s extension request dated May 31, 201 7. 4. Requester?s regarding a submission schedule dated May 31, 2017. 5. email dated June 1, 2017, modifying the submission schedule and requesting a three-week extension in issuing the ?nal determination. 6. Requester?s email dated June 7, 2017 granting the request for a three?week extension. 7. submission dated June 8, 2017. 8. Requester?s submission dated June 14, 2017. 9. supplemental submission dated June 22, 2017. 10. email dated June 30, 2017, requesting a two-week extension to issue the ?nal determination. 11. Request?s email dated June 30, 2017, agreeing to the extension. 12. email dated July 5, 2017, con?rming Requester?s extension agreement and explaining the need for the additional time. 13. The Final Determination dated July 24, 2017, issued by the OCR. THE omen OP OPEN means or THE COMMONWEALTH PENNWANIA a I Appeal- Officer: 3 3 Docket NO.- a I PHILADELPHIA manner I 39* Ummbm?W ATTORNEYS OPPIOE. Respondent Austin Nolen. hereine?er 'requeeter,? hereby appeals the adverse determinatlon of the Philadelphia District Attorney's Moe, hereinafter concerning the above-captioned request. Speci?cally. requester appeal: the purported non-existence ofthe requested reoorde. appeal: oeuurinPh?adelphieCounty. 2) TheDAOheela 1 tribunals who have reached this oonoluaion. See, e.g. mo 0. Bogmll, 155 A311 1119 (Pa. Commw. Ct. 2017). rah'g denied. 201'? Pa. Oommw. LEXIS 105 (Pa. Oommw. Ct. 2017) (upholding bad faith ?ne against Nolan v. 1110. AP 2015-1187, 2018 PA 0.0.R.D. LEXIS 1472 (?nding that claim of no reaponaiva morda wee unmounble). 3) On March 15". 2017. requester ?led a reqneat hr the followingreoorda: "Who Went agreement between the Philadelphia Police Department, Municipal Court, District Attorney's Of?oe and other partnera governing the Preliminary Arraignment Reporting and ?[tlhe current agreement governing emu by Immigration and Ouatoma Enforcement to See Exhibit The DAO reoeived thia requeat on the next buaineaa day. March 20*. 2017. 4) PARS il a ayatem foreleolronio sharing ofreoorda related to preliminary arraignment: between the institutions involved in Philadelphia's criminaljuatioe ayateun. It aa partidpanta the DAD a oomponentofthaF?lrat Judiolol Diatrlot of Pennaylvariia. 5) 011 Miami 27*, 107.11vebueineu day: after March so?. ne??edrequeater that it wouldde athii-ty day'extenaien. Altai-a theDAD provideditl?nal [illthat are maintainadbyDeputy Judicial District Despite this language. this response ill adenial. See Exhibit 6) Oan 19". 2017. the DA0 denied decision. See Exhibit 'C.'Thisreaponaeil analyzed below. 'l?heinatant appeal followed. LBummaryofArgmment areclearlyaneney Therequestedreeordl agency. de?nes records that documents a transaction or activity ofan agency and that is created. received or retained oractivityof the agency.? 65 BS. 67.102. Agencies must provide-remds if they are, inter alia, in their .'posseasion, custody or control." 65 -P.S. I 67.901. Agencies must entitled to and control ii'the records document atransactionoractivity of the agency. Mum-Review Publ?g Co. v. Weslmoreland One}. Housing Anti" 574 Pa. 681 (2003). Therequeatedreoords dammenttheagreementhetweenthe DAO and other local agencies to run the PARS system. which facilitates information sharing amongparticipants inthe criminaljustlce system. This is clearly an PARS. Pr?amably, ifthoDAOnaodod access to those random-other operational Thus.theroquoatad provided, despite the agoncy'a typically unreasonable oolitrary claims. be to award. problematic raoordkaaping. obligationlundortho maintainitl records." Department of?nutronmental mm? a. Lean. 50 260. 265 (Pa. Gommw. Ct. 2012). should nothe afforded: apocigl exemption ?-om it: dude: under the law. As explained obviate the raquirement to melee a good- Thai-inaccurate. recormeheapp?catlonofthe ?nancial records. 65 RS. 613049.). 11:15 for fromclear thin: the record: cry Methemordl?lalf. gm subatan?w O?ce on appeal. Respect??ly submitted this 19Eh day of May, 2017, mm Austin Nolan, PO Box 29476 Philadelphia, PA 19125 in INTEEMATTEROF I AUSTIN NOLEN. mm m? I v. I Docket New I mm DISTRICT 30:11de Bonus-t gnome omen, Beupendent I underutandthetfalle penaltleeof 18 Pa. Gene. Stat. 4904 relating to unavoi'n Mention to authorltlel. Respectfully submitted this 19? day efMay, 2017, mm Aus?n Nolan PO Box 29478 Philadelphia, PA 19125 Exhibit OFFICE OF OPEN REcono's 2 DATE REQUESTED: 3?13?" REQUEST eueun'rEe BY: E-MAIL u.s. MAIL FAX Douglas Week. AORO. CIVII Ll?gaIlOn Unlt. Three South Penn Square. Phlladelphla. PA19107 NAME or 29475 Phlladelphle. PA19125 ELEPHONE EMAIL (option-l): RECORDS REQUESTED: *Prov?e egancyceniden?ijr?reinibm?on. I. The cunent agreement between the Philadelphia Police Department. Municipal Court. District Attorney?s Of?ce and o?1er partners governing the Preliminary Analgnment Reporting System (PARS): II. The current agreement governing access by Immigration and Customs to PARS. Yes to copies: no to inspection: no to certi?cation: we to advance notli'lcetlon. DO YOU WANT YES or NO DO YOU WANT TOIINSPECT THE YES or NO DO YOU WANT COPIES OF YES or-NO DO YOU WANT TO BE NOTIFIED IN ADVANCE IF THE COST EXCEEDS $100? YES or NO PLEASE NOTE: MAIN A OF THIS REQUEST FOR YOUR FILES .. IT Is A REQUIRED DOCUMENT IF YOU WOULD NEED To FILE AN APPEAL FORAGENCYUSEONLY OPEN-RECORD OFFICER: I have provided notice to appropriate third parties and given them en opportmity to object to this request DATE RECEIVED BY THE AGENCY: AGENCY FIVE (I) BUSINESS DAY RIIPONE DUE: providedibrinthieAct, therlqueetmuetbein Ming. (Section explanation (Section'rm Exhibit DISTRICT ATTORNEYS mm scum PENN SQUARE mm mumvmm mot-3499 215-686-8000 Mny 17,-2017 nan-Man Austin Nolen molenwuydeclamionmg Re: Rupoule to Your to Know Low Request - PARS Agreement- Deur Mr. Nolen: This letter in in response to your Right-to-Know-Iaw (RTKL) request. which was received by the Open Records Of?cer ofthe Philadelphia District Attorney's Of?ce (DAO) on March 20. 2017. You req'ueeted: l. Thecurrent Police Deperunent, Municipal Court; District O?ce and other partners En?IrcemmttoPARS. On March?. 2017. pmucutto RTKL Section 902. the DAG invoked an extension oftiruemtil April 26. 2017. to reepond. On April 24. 2017. you granted an additional extension oftlmeuntil May 10, 2017. OnMey 9, yougrented an additional extendou of tlme until Moy 17,- 2017. Your-Windham. Arranged-fem: possession. custody,or control. See. 9.3.. Moore v. Of?ce of Open Records. 992 A2d 907, 909 (Pa. Commw. 2010) (explaining that ?[Inency] cannot grunt locals to a record that doe: not exist"). However. or zoom. attached is I copy ofen old PARS "Eitcnaion cfEud-Ulor License Ameut" executed in 2010. Un'ibrhmutely. it is of poor quality. Penelofl oflheFiret Judicial District cfPermaylvania. Accordingly. purulent to Section 502(b) of the RTKL, if ynuaochooae: Firlt Judicial District of O?ce of Financial lervicea . Attn: Deputy Count Adminiltretor Kevin Creel City Hall, Room 395 Philadelphia-PA 19107 crtoappropriatemone inmo?reramoy? quo. 138A.3d88, 100th.Cornrutwmom ancpenreccrdao?cer Iwculdadviae PreaidentludgeMarlhaH. Nei?eld 1301 rum Street. Room 1303 Philadelphia, PA 19103. Shouldyou ofOpenReeorrla. Pleaaefeel Sincerely, NDouglor Week Douglas Week Open Records Of?cer AW: Omen Three South Penn Square Philddelphia. PA 19107-3499 (215)686-5736 doughnwec?philm Pagelofz . 5.33: ?5 ?gs?Ems E: til?tn . .5 Irina-"ii! . inns-Illi- euthana?u . . mm}: i '5 ii? ml ilEii?-?a 93- In?! Ingrigihalg?ii I Ioh-? gin. . 5.. ll. :uEilinEI ringgila i Ii . . .. rui??l?urlri SHE law-Eula- in Ell-.1. [It lanai?! Egg-Hi: ?.Au WARM HEIFIELI mm 7.3 mammal. Ir hum-ll: Emma-I1 wan-ah mammal} ?ham . 'Il lug-m: ?this. ?ange . almsl?n??ia . Ian-i ii 33.5 . . Ea Ezsz?ai ?a n?n?iai. is? . Finally: alga-?ag a l1! ulna-? uh? ii I Iii?Inn. ill-bl! I i .. .H. Ill-l. banal-it. hi?twin . . ?g 1% 22.53232 urn! 3&1. =8 5?i?lg?if??gig.in a if. n. ai:l . . run-IE . .. I . . high. - Eight. EI- it #5qu mm mum: EEIFIEID um 1 I. ?its . . .3938: 35m issuing?E 8.3? . Eb. . H. nigh. -L .- EggInitial? ?andull I'll'l'l Lnl'ill'll I I I . tuna Exhibit RE: Rm PARS A3reeman? 1of3 Subject: RE: RTKL PARS Agmements From: Douglas Week Data: 5119/2017 4:58 PM To: Austln Nolan Mr. Nolan, Thankyouforlrollowlng upon my roquartl'oraddl?onal armament In supportof your raquertfor reconsideration. I warranted. requartol'lherewtlefromma FlrItJutlldal Winonahavaa?oc?woontrolowmun. Seoond,u1drelatad maDAOlen'ottha FJD'unent and cannot alter their legal right: or obllga?onr. The DAO nothaye any legal au?lorltyoyer puhle entity. Whereas: reoorrh requeetoouldnotba Plaaseeruoy?lewaalmd, Doquad: Doug M. Wool: Mount Dlalrlot Niamey Open Raoorrh thlgallon Unlt Phlladalphla Dlelrlot Attorney's Throo South Penn Sonora PA 10107 E: P: 215-635-6736 mmomnoam: From: Auatln Nolan aunt: Thursday, May 13, 2017 1:02 PM To: Douglas Wad: Subjool: Re: RTKL PARS Agreements possession ofanothor party to the moment; tho DAD has e?oc?yo oono'ol. posrarrion. oftho 9.3. THbune-Rcviewhbl'gCo. WIawCulerowingAmn 5'74 Pa. 661 5/19/2017 am PL Salter. Janelle From: Austln Nolan sum: Frlday. May 19.2017 354 PM To: Dc. OpenReoords CG Douglas Week: de?hophllagov Subject: RTKL Appeal Attachments: Dear staff of the Of?ce of Open Records. Attached Is an appeal of an adverse of the Phlladelphla Attorney?s Of?ce. To oontaot me for any reason related to request. please use 'emall address. Thank you, Austln Nole'n oc: Douglas Week, DAD AORO ff OFFICE OF OPEN May?, 2017 ?IE-Mullah: only: AuatlnNulm Douglas Weak PO Box 29476 OpenReem-da O?eer Philaddphia. PA 19le Philadelphia Dlauict Attomey'a O?ee WPA 19107 mm RE: NOTICE OF APPEAL DOCKET 2017-1091 Dear Parliea: 65 PS. 67.101. elm. mm 19I 20H. m?m?atmemawi?linaoedmdudayl. 'Itatemanta Themcyhuthahmlmof Tom-etude meORFinalDeiennimiionl. exist. Blank aample a?davita are available an the wehaite. m'llbekeatedaaka?ngm If?ie considered. mm inthis sppesl (m as M. ?Jim 2011)). en?neunmtegeney. MM BrewiveDireetnr Enc.: En?resppeelas?ledwithOOR v5; OFFICE OF OPEN RECORDS Pleue direct lubll'lluienl and eon-elpondenee related Pleuelneludetheeue nameuddoehtnumberon-?lubmelem. totheOOR. .The con website, W891- is searchle and lio?1pmies andfeesthetmeyimpect??uppeal. REQUEST TO PARTICIPATE BEFORE THE ODE Flume acwp'l Lhia as Enqum to Paiticipalc in Ii um?y pmding appeal bcfon: the ?f?cc DfOpun Records. Th: migrants mud: herein and in any umbmmia are true and mm to 111: best of'my knawludgc, infurmntinn and belie-? Iundur?tnnd this autumnal in mud: Bubjoct to the pmaJlitz of 4994, mlnting to unswum Ealai?ca?aus authorities. NDTE: The rcquuter ?ling the ipp?l with the DDR II I nun-3d party in the proceeding and in HGT required tn complete thil farm. 00R Bucket 0: WI Gm: Hm PROVIDEANALTHNATEM MM E-ml? n?m?u-na nun- Purim-r:? Nmo?loqmmn Adda-WM E-mil Nmof?m weary/swap I E-mlil rl=l lama hm: I: Anunployuormm El AMMW El DISTRICT OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, 19107-3499 215-686-8000 May 31, 2017 Via E-Mail Benjamin Lorah, Esq. Of?ce of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 Re: Extension Request, Nolen v. DAO, Docket 2017-1091 Appeals Of?cer Lorah: The submission of the Philadelphia District Attorney?s Of?ce (DAO) in the above matter is currently due June 1, 2017. I write to request a seven-day extension of time until June 8, 2017, to respond to the appeal. The request is made for two reasons. First, this matter involves a request for contracts that are in the possession and control of the First Judicial District (FJD) of The DAO is a party to these contracts with the FJD and the City of Philadelphia (City). I need more time to gain additional and necessary input of those third-parties. The FJD and the City have already been noti?ed of their ability to participate. Second, that is compounded by my normal heavy caseload, which includes processing RTKL requests, consulting, and civil and criminal litigation. Accordingly, an extension is warranted by justice and basic fairness to the agency parties. See 65 RS. (requiring that procedural matters in RTKL appeals be decided based on ?justice, fairness and the expeditious resolution of the dispute?). Please contact me if you have any questions or concerns. Thank you for your time. Sincerely, Isl Douglas Week Douglas Week Open Records Of?cer PHILADELPHIA DISTRICT OFFICE Three South Penn Square Philadelphia, PA 19107-3499 (215)686-5 736 douglas.weck@phila.gov cc: Austin Nolen Lorah. Benjamin From: Douglas Weck Sent: Wednesday, May 31, 2017 11:03 AM To: Lorah, Benjamin Cc: anolen@phillydeclarationorg Subject: Extension Request, Nolen v. DAO, Docket 2017-1091 Attachments: DAO Extension Request, Mr. Lorah, Attached please ?nd an extension request from the DA0 In the above matter. Best. Doug Weck Doug M. Week Assistant District Attomey Open Records Of?cer Civil Litigation Unit Philadelphia District Attomey's Office Three South Penn Square Philadelphia. PA 19107 E: Douglas.Weck@Phila.gov P: 21 5-886-5736 PRMLEGED AND CONFIDENHAL: This message and any attachments are for Intended recipients only. They constitute or contain attorney work product. are protected by the attcmeyicliant privilege. and may otherwise be protected against public disclosure. If you have received this message In error. please notify me. and delem it and any attachments without making or retaining a copy. Lorah, Ben?lamln From: Douglas Weck Douglas.Weck? Phila.gov> Sent: Wednesday, May 31, 2017 2:47 PM To: Austin Nolen; Lorah, Benjamin Subject: RE: Extension Request, Nolen v. DAO, Docket 2017-1091 Appeals Of?cer Lorah, The DAO does not object to Mr. Nolen's request. Bat. Doug Week Doug M. Week Assistant District Attorney Open Records Of?cer Civil Litigation Unit Philadelphia District Attorney's Of?ce Three South Penn Square Philadelphia, PA 19107 E: Dougias.Weck@Phila.gov P: 215-686-5736 PRMLEGED AND CONFIDENTIAL: This message and any attachments are for intended recipients only. They constitute or contain attorney work product. are protected by the attomeyiclient privilege. and may o?ierwlee be protected against public disclosure. ti' you have received this message In error. please notify me, and delete it and any attachments without rnaklng or retaining a copy. From: Austin Nolen Sent: Wednesday, May 31, 2017 2:27 PM To: Douglas Weck; blorah@pa.gov Subject: Re: Extension Request, Nolen v. DAO, Docket 2017-1091 Dear Appeals O?icer Lorah, I have no objection to this request. However, I would also like to request that the schedule be updated to give me a chance to reply and give the DA the chance to ?le a sur-reply if necessary. I would ?le any reply by Thursday, June 15th and the DA could ?le by Thursday, June 22nd. I am willing to extend your ?nal determination deadline to make that possible. Thank you, Austin Nolen On 5/31/2017 11:03 AM, Douglas Week wrote: Mr. Lorah, Attached please ?nd an extension request from the DA0 in the above matter. Best, Doug Weck Doug M. Week Assistant District Attorney Open Records Of?cer Civil Litigation Unit Philadelphia District Attorney's Of?ce Three South Penn Square Philadelphia. PA 19107 E: P: 215-686-5736 PRIVILEGED AND CONFIDENHAL: This message and any attachments are for Intended recipients only. They constitute or contain attorney work product. are protected by the attomeyicllerlt privilege. and may otherwise be protected against public disclosure. If you have received this message In error. please notify me. and delete It and any attachments without making or retaining a copy. Lorah, Ben'lamin From: Lorah, Benjamin Sent: Thursday, June 01, 2017 11:16 AM To: anolen@phillydeclaration.org; Douglas Weck Subject: Submission Period Extended: Nolen v. Phila. DAO, (AP 2017-1091) Dear Parties: The Office?s request to extend the record closing date in this appeal is GRANTED. In addition, the Requester?s request for a modi?ed brie?ng schedule is GRANTED. The revised submission schedule will be as follows: I The District's deadline for submitting a position statement in this appeal is June 8, 2017. I The Requester?s deadline for submitting a reply to the District?s position statement is June 15, 2017. The District may ?le a sur-reply byJune 22, 2017, if necessary. To accommodate the modi?ed brie?ng schedule, the OCR requires a three week extension to issue a ?nal determination in this appeal. Under the extension, the ?nal determination deadline would be July 10, 2017. Mr. Nolen, please indicate your agreement to extend the final determination deadline and we will amend the docket accordingly. Thank you for your attention to this matter. Sincerely, Ben Lorah Benjamin Lorah Attorney Of?ce of Open Records A Commonwealth Keystone Building 400 Norlh St. Plaza Level Harrisburg, PA 17120?0225 Con?dentiality Notice: This electronic communication is privileged and con?dential and is intended only for the party to whom It Is addressed. If received In error. please return to sender. Lorah. Benjamin From: Austin Nolen Sent: Wednesday. June 07, 2017 2:57 PM To: Lorah, Benjamin Cc: Douglas Weck Subject: Re: Submission Period Extended: Nolen v. Phila. DAO, (AP 2017-1091) Dear Appeals Of?cer Lorah, That extension is ?ne. Thank you, Austin Nolen On 6/7/2017 11:56 AM, Lorah, Benjamin wrote: Mr. Nolen: I wanted to con?rm that you agree to extend the ?nal determination deadline in this appeal. Please respond at your earliest convenience. Sincerely, Ben Lorah Benjamin Lorah a; Attorney Ari" Of?ce of Open Records Commonwealth Keystone Building 400 North St.. Plaza Level Harrisburg. PA 17120-0225 WIW On Con?dentiality Notice: This electronic communication Is privileged and con?dential and Is intended only for the party to whom It Is addressed. if received in error. please return to sender. From: Lorah, Benjamin Sent: Thursday, June 01, 2017 11:16 AM To: anoienQphiIlydeclaration.org; Douglas Weck Subject: Submission Period Extended: Nolen v. Phila. DAO, (AP 2017-1091) Dear Parties: The Office?s request to extend the record closing date in this appeal is GRANTED. In addition, the Requester?s request for a modified briefing schedule is GRANTED. The revised submission schedule will be as follows: 0 The District?s deadline for submitting a position statement in this appeal is June 8, 2017. The Requester?s deadline for submitting a reply to the District's position statement is June 15, 2017. The District may file a sur-reply by June 22, 2017, if necessary. To accommodate the modi?ed brie?ng schedule, the OCR requires a three week extension to Issue a nal determination in this appeal. Under the extension, the ?nal determination deadline would be July 10, 2017. Mr. Nolen, please indicate your agreement to extend the ?nal determination deadline and we will amend the docket accordingly. Thank you for your attention to this matter. Sincerely, Ben Lorah '5 Benjamin Lorah a, Attorney Office of Open Records A Commonwealth Keystone Building 400 North St. Plaza Level Han-lsburg. PA 17120-0225 my I enReoordsPA Con?dentiality Notice: This electronic communication is privileged and con?dential and is intended only for the party to whom it Is addressed. If received in error. please return to sender. DISTRICT OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, 19107-3499 215-686-8000 June 8, 2017 Via E?Mail Benjamin Lorah, Esq. Of?ce of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 blorah@pa.gov Re: Nolen v. DA 0, AP 2017-1091, PARS Agreements Appeals Of?cer Lorah: Please accept this letter with af?davit (Ex. A) and exhibit (Ex. B) as the submission of the Philadelphia District Attomey?s Of?ce (DAO) in the above matter. The appeal should be dismissed because the requester is asking the Of?ce of Open Records (00R) and the DA0 to violate the constitutional independence of the judiciary, and the DA0 does not have any reaponsive records in its possession. On March 20, 2017, requester Austin Nolen ?led a Right-to-Know?Law (RTKL) with the the Open Records Of?cer of the DA0, requesting: 1. The current agreement between the Philadelphia Police Department, Municipal Court, District Attorney?s Of?ce and other partners governing the Preliminary Arraignment Reporting System (PARS). 2. The current agreement governing access by Immigration and Customs Enforcement to PARS. By way of background, the Preliminary Arraignment Reporting System (PARS), is an information technology system used to transmit information from arrest through arraignment between the City of Philadelphia (City) Police Department, the DA0, and the Municipal Court of the First Judicial District (FJD). Primarily, it is the electronic means by which the City police transmit information about a criminal arrest to the DA0 for a charging decision. PARS is used by the DA0 to ?le charges in the Municipal Court and trigger the scheduling of a preliminary arraignment. At the preliminary arraignment in Municipal Court, bail is set and recorded in PARS. Page 1 of 6 The judiciary?s Common Pleas Case Management System extracts data ?'om PARS when it creates a criminal case. Effectively, PARS is an e-?ling system. On March 27, 2017, pursuant to RTKL Section 902, the DA0 invoked an extension of time until April 26, 2017, to respond. On April 24, 2017, Mr. Nolen granted an additional extension of time until May 10, 2017. On May 9, he granted an additional extension of time until May 17, 2017. On May 17, 2017, the DA0 issued a ?nal response. First, Mr. Nolen was informed that the DA0 did not have any responsive records in its possession, custody, or control. Second, he was redirected with detailed contact information to personnel of the FJD, speci?cally the President Judge of the Municipal Court and the Deputy for Financial Services at the FJD, because the FJD is believed to be in possession of any responsive records. Nonetheless, Mr. Nolen was also provided with a courtesy copy of an expired, and therefore non-responsive, PARS agreement from 2010, which was the only PARS agreement that could be found within the DA0. On May 17, 2017, Mr. Nolen requested reconsideration, generally making the arguments now presented to the 00R and citing Tribune-Review Pub. Co. v. Westmoreland Cnty. Hons. Auth, 833 A.2d 112 (Pa. 2003). On May 19, 2017, reconsideration was denied. Mr. Nolen ?led an appeal with the 00R, which was docketed on May 22, 2017. On May 30, 2017, the DA0 formally noti?ed the FJD and the City of their ability to participate in this appeal. (Ex. B, Notice Letters w/o Attachments.) On May 31, 2017, the parties requested an extended brie?ng schedule. That request was granted on June 1, 2017. The DAO now responds. I. The requester is asking the DOE and the DA0 to violate the constitutional separation of powers by forcing the judiciary to release documents. The requester is asking both the 00R and the DA0 to force personnel of the FJD to release the documents. That is a plain violation of the constitutional separation of powers. By redirecting the requester to the FJD, the DA0 did exactly what was appropriate under the Constitution, the case law, and the RTKL. The appeal should be dismissed. The constitutional separation of powers, which is engraved in Article of the Constitution, mandates ?that the judiciary be kept ?a separate, distinct and independent entity in government.? In re 42 Pa. C.S. 1 703, 394 A.2d 444, 449-50 (Pa. 1978) (quoting Commonwealth v. Sutley, 378 A.2d 780, 783 (Pa. 1977)). No legislative or executive agency may in?inge the exclusive constitutional powers and duties of the judiciary. See, Villani v. Seibert, A.3d 66 MAP 2016, 2017 WL 1489048, at Ill11 (Pa. Apr. 26, 2017) powers accorded to this Court under Article V, Section 10(c) are exclusive"); LJ.S. v. State Ethics Comm 744 A.2d 798, 800 (Pa. Commw. 2000) (?Neither the General Assembly nor the executive branch of Page 2 of6 government, acting through an administrative agency may constitutionally infringe upon the powers or duties of the county judiciary.? (alteration omitted?; see also Sutley, 378 A.2d at 783 encroachment upon the judicial power by the legislature is offensive to the ?mdarnental scheme of our government?). Part of the judiciary?s exclusive authority is its control over its personnel and its records. See, State Ass ?n of Jury Comm ?rs v. Com., 78 A.3d 1020, 1032-33 (Pa. 2013) (?The judiciary?s authority over court personnel is essential to the maintenance of an independent Commonwealth v. Mockaitis, 834 A.2d 488, 499 (Pa. 2003) is settled that the General Assembly cannot constitutionally infringe upon the power of this Court to supervise employees of the judiciary." (citation and internal quotation marks omitted)); First Judicial Dist. of v. Human Relations Comm 727 A.2d 1110, 1112 (Pa. 1999) (explaining that non-judicial agency lacked jurisdiction because ?its activity would necessarily involve some measure of directing the personnel matter, and its activity could include requiring court o?icials to produce records and documents? (emphasis added)); Grine v. Cnty. of Ctr., 138 A.3d 88, 100 (Pa. Commw.) (en banc) (??Every court has supervisory power over its own records and ?les.? (alterations, internal quotation marks, and citation omitted?, appeal denied, 157 A.3d 483 (Pa. 2016); Court of Common Pleas of Lackawanna Cnty. v. O??ice of Open Records, 2 A.3d 810, 813 (Pa. Commw. 2010) of a judicial agency [are] not subject to the jurisdiction of the Here, the requester is demanding that the 00R and the DA0 compel FJD personnel to release documents pursuant to a RTKL request to the DA0. Such relief would be unconstitutional. The 00R and the DA0, like any non-judicial entity, have zero authority to compel judicial personnel to release documents. To hold otherwise, would be to offend the fundamental scheme of judicial independence inherent in the separation of powers. See, Grine, 138 A.3d at 97 (?Allowing another agency to direct a judicial employee violated the separation of powers because it interfered with the judiciary?l oversight and supervision of judicial employees.? (discussing Lackawanna Cnty., 2 A.3d at 810)). This is not new territory in RTKL jurisprudence. The courts and the 00R have repeatedly understood the separation of powers to bar use of the RTKL to exert non-judicial in?uence over judicial personnel and judicial documents. For example, in Grine, 138 A.3d at 97-98, the Commonwealth Court held that a county agency could not release records that belonged to the judiciary even where, unlike here, the county agency provided administrative support for the judiciary and, unlike here, possessed the records. And, in Lackawanna Cnty., 2 A.3d at 813-14, the Commonwealth Court held that the 00R committed a "blatant and unconstitutional violation of the separation of powers" when it ordered a local agency with electronic access to the records of a judicial employee to release those records pursuant to a RTKL request. See also Dowd, Jr. v. City of Philadelphia Department of Records, 2017 WL 677240 at Ill4 (Pa. Off. Open Rec. Feb. 13, 2017) court records are records ?of? the First Judicial District and remain under the jurisdiction of the First Judicial District?); Gembusia v. Cumberland Cnty., 2017 WL 1055576 at *3 (Pa. Off. Open Rec. Mar. 17, 2017) to Lackawanna County and Grine, these Page 3 of 6 records are records of the judiciary, and the OCR lacks jurisdiction over this appeal?). As Grine and Lackawanna Cnty., make clear, even if the DA0 physically possessed documents belonging to the judiciary, it could not be ordered to release them. Surely the OCR cannot order the DA0 to release documents that both belong to the judiciary and are in the judiciary?s possession. The 00R is powerless here. See, Court ofCommon Pleas of Lackawanna Cnty. v. Office of Open Records, 2 A.3d 810, 813 (Pa. Commw. 2010) of a judicial agency [are] not subject to the jurisdiction of the Because the requested records were not in the possession or control of the DA0, and every indication was that those records were in the possession of the FJD, the only legal responsibility the DA0 had under the RTKL was to refer the requester to the FJD. See 65 PS. 67.502(b) (?The open-records of?cer shall receive requests submitted to the agency under this act, [and] direct requests to other appropriate persons within the agency or to appropriate persons in another agency . . . Grine, 138 A.3d at 100 (?The RTKL thus mandates an open records of?cer direct a request to another agency when records are ?of? another agency?). 2. The requester ?s arguments are not supported. Mr. Nolen acknowledges that the requested records are in the possession of the FJD, yet he contends that the RTKL has somehow ?entitled? the DA0 to control those records. (N olen Brief, 4.) As explained above, the Legislature would be barred by the state constitution ?'om entitling the DA0 to do that. In any event, the RTKL need not and cannot be read in such an unconstitutional manner if one looks as its plain language. The requested documents are not in the possession of the DA0 according to the RTKL. The RTKL requires the DA0 Open Records O?cer upon receipt of a request to determine whether the DA0 has ?possession, custody or control" of the requested records. 65 PS. 67.901. In accordance with the RTKL, it was determined that the requested records were not in the possession, custody or control of the DA0, but were instead in the exclusive possession, custody or control of the independent FJD. Mr. Nolen contends that the requested contracts document a ?transaction or activity of [the 65 PS. 67.301, and therefore the RTKL requires the DA0 to obtain them from the FJD. (N olen Brief, 4-5.) That is not what the RTKL requires. The RTKL requires the DA0 to determine whether the DA0 has ?possession, custody or control,? 65 PS. 67.901, which it does not, and direct requests ?to appropriate persons in another agency,? id. which it did. Mr. Nolen is con?lsing what it means to be a government record with what it means to be in the possession, custody, or control of such a record Contrast id. 67.102, with I'd. 67.901. And, the RTKL does not require the DA0 to go to other agencies to retrieve records for requesters. See, Sturgis v. Dep ?t of Corn, 96 A.3d 445, 448 (Pa. Commw. 2014) (explaining that RTKL does not ?irnpos[e] a duty upon an agency in receipt of a request to notify another agency of the request in order to attempt to obtain from the other agency a record not in the possession of the agency in receipt of the request?). Page 4 of6 Dibune-Review, 833 A.2d at 112, a case decided under the old Right-to-Know Act involving agency records in the possession of a private liability insurance carrier doing legal defense work for the agency, supports the position, notwithstanding Mr. Nolen?s reliance on that case. That case involved a document in the possession of a private liability insurance carrier that provided legal representation for the government agency pursuant to an agreement. The Court found that because the insurance carrier defended lawsuits for the agency and had the legal authority to alter the government agency?s legal relations with other persons, the insurance carrier ?stood in [the agency?s] shoes.? Thus, there was a principal-agent relationship. Id. at 119- 20. Here, the FID does not represent the DA0, and the DA0 does not represent the there is no principal-agent relationship. The mere presence of an agreement to share information does not alter that basic constitutional fact. And, unlike with the private party in Ethane-Review, Mr. Nolen can simply seek the records the FJD, and could have in the ?rst instance. Finally, Mr. Nolen chides the DA0 for not having the requested documents, even though the RTKL does not require the DA0 to keep copies of such documents.1 Although it is not unreasonable to think that the DA0 would keep copies of such documents, the DA0 is not required to produce a record that it does not possess. See, Sturgis, 96 A.3d at 448 (?[The agency] simply cannot be required to produce a record not in its possession, even if one would expect that it should possess the record?); Palmer v. State Police, 928 A.2d 1165, 1169 (Pa. Commw. 2007) RTKL imposes no obligation upon an agency to retain records?); see also PG Pub. Co. v. Governor ?s O?ice of Admin, 120 A.3d 456, 463 (Pa. Commw. 2015) Section 507 does not create a duty on the part of agencies to maintain records if they are destroyed as part of a records-retention policy. Simply, the RTKL governs whether records currently in existence must be disclosed?), a 135 A.3d 578 (Pa. 2016).2 The RTKL is a record access statute, not a record retention statute. 1 Mr. Nolen?s bald allegation that ?the DA0 has a policy or practice of unreasonableness and/or bad fai is totally unsupported and violates the legal requirement that ?[p]ublic of?cials are presumed to have acted lawfully and in good faith until facts showing the contrary are averred, or in a proper case are averred and proved,? Robinson v. City of Philadelphia, 161 A.2d 1, 5 (Pa. 1960). As for Nolen v. DAO, 2016 WL 7241004 at *1 (Pa. Off. Open Rec. Oct. 31, 2016), Mr. Nolen exaggerates a mundane legal dispute about how to interpret the wording of his request, instead of casting it as one in which the DA0 plainly worked with him in good faith to resolve a legal dispute in a fair and expeditious manner. And, regarding DAO v. Bagwell, 155 A.3d 1119 (Pa. Commw. Ct. 2017), it is simply not bad faith to argue that interpreting the RTKL to permit civil litigants to circumvent the Supreme Court?s Rules of Procedure amounts to an unconstitutional violation of the separation of powers; it is just standing up for the Constitution. The DAO thus has had to seek allocatur in that matter. See also Ex. A, 1[ 4. 2 The cited proposition in Com, Dep ?t of Envtl. Prot. v. Legere, 50 A.3d 260, 265 (Pa. Commw. 2012) that ?an agency?s failure to maintain the ?les in a way necessary to meet its obligations under the RTKL should not be held against the requestor? is misplaced here. The argument Page 5 of 6 In the end, the plain language of the RTKL cannot reasonably or constitutionally be read to require what Mr. Nolen claims. See, Lew v. Senate of 65 A.3d 361, 380 (Pa. 2013) (?In interpreting [the we presume that the General Assembly does not intend an absurd result, to violate the Constitution, nor to favor a private interest over the public interest.? (citing 1922)). The DAO respect?illy requests that this appeal be dismissed. If I can provide further clari?cation or legal argument, please do not hesitate to contact me. Sincerely, ls/ Douglas Week Douglas Week Open Records Of?cer cc: Austen Nolen is not that it would be too burdensome for it to search ?les in its possession, as was the argument in Legere. Rather, it is that it does not have legal possession of the records. Page 6 of 6 Exhibit A DISTRICII OFFICE THREE SOUTH PENN SQUARE CORNER OF HINIPBR AND S. PENN SQUARE PHILADELPHIA. 19107-3499 215-686-8000 PEN RECORDS FFI Of?ce of Open Records Cae: Nolan v. DAD, AP 2017-1091, PARS Agreements Date of Request: March 20, 2017 Records Requested: 1. The current agreement between the Philadelphia Police Department, Municipal Court, District Attorney?s Office and other partners governing the Preliminary Arraignment Reporting System (PARS). 2. The current agreement governing access by Immigration and Customs Enforcement to PARS. I. Douglas Week, Assistant District Attorney. Civil Litigation Unit. state the following to the best of my knowledge. information and belief under penalty of perjury pursuant to 18 Pa. C.S. 4904 relating to unsworn falsi?cation to authorities: 1. I serve as the Open Records Of?cer for the Philadelphia District Attorney's Of?ce (DAG). a position I have held since January 2017. 2. I am responsible for searching DAO ?les and determining if documents are public in response to Right-to-Know-Law (RTKL) requests ?led with the BAG. 3. In my capacity as Open Records Officer. I am familiar with the records of the DA0. how the DA0 maintains records. and whom to contact about speci?c categories of records. 4. i handled the above request. which is one of four separate requests that the requester ?led with me in March. Two of these requests were granted. Two of those requests were redirected to outside agencies because the DA0 did not possess responsive documents. I sought to be helpful in processing all of those requests. 5. By way of background. the Preliminary Arraignment Reporting System (PARS). is an information technology system used to transmit information from arrest through arraignment between the City of Philadelphia (City) Police Department. the DA0. and the Municipal Court of the First Judicial District (FJD). Primarily. it is the electronic means Pagelof3 by which the City police transmit information about a criminal arrest to the DA0 for a charging decision. PARS is used by the DA0 to ?le charges in the Municipal Court and trigger the scheduling of a preliminary arraignment. At the preliminary arraignment in Municipal Court. bail is set and recorded in PARS. The judiciary?s Common Pleas Case Manmmt System extracts data from PARS when it creates a criminal case. Effectively, PARS is an e-?ling system. . In response to the above request. Iconducted a good-faith search for responsive records in the possession of the DA0, which included: a. I contacted and interviewed the DAO's Chief Financial Of?cer. Doreen Rooney. to request the above agreements. CFO Rooney is normally the custodian of DAO contracts. Ms. Rooney did not have any responsive records. b. I contacted and interviewed DAO Deputy of Training, Technology. and Special Projects Jodi Lobel. Deputy Lobe] is my deputy-level contact for any records related to technology and computing. including PARS. She has substantial experience with PARS and is the primary liaison to the other PARS partners regarding PARS. Deputy Lobel did not possess any responsive documents but provided me with contact information for personnel in the F1 and the City who could provide me with more information. c. I contacted and interviewed DAO First Assistant. Chief of Staff. and Chief Integrity Of?cer Kathleen Martin. who oversees administration of the entire DAO under the District Attorney. F'u'st Assistant Martin did not possess copies of any current PARS agreements but provided me with a copy of a 2010 expired agreement. which was the only PARS-related agreement in her possession. . Based on the information I collected from Deputy Lobel and First Assistant Martin. I communicated with City and FJD personnel about the request. . Based on those communications, I learned that responsive documents were maintained by FJD Deputy Court Administrator of Financial Services Kevin Cross, under the exclusive control of President Judge Marsha Nei?eld of the Municipal Court of the FID. . Accordingly, I concluded that the DA0 did not have any responsive records in its possession, custody. or control. 10. However. I directed the requester to the FJD with contact information for Deputy Cross and President Judge Nei?eld. ll. I have no authority to direct personnel of the FID. The FJD, as part of the judiciary, is an independent branch of government. My only option was to direct the requester to inquire with the RID. 12. Consequent to the ?ling of Mr. Nolen's appeal with the OCR. I formally noti?ed the and the City about the appeal and their ability to participate. Page 2 of3 13. As part of that, I noti?ed FJD Deputy Court Administrator of Legal Services Dominic Rossi. Deputy Rossi is effectively ?general counsel" for the FJD. 14. Following, Deputy Rossi and I discussed the matter. He stated that if the matter is referred to the F1 the requester would have to seek the information through the Rule of Judicial Administration No. 509 procedure. which is the judiciary's procedure for seeking access to ?nancial records. information on that procedure is available on the websiteDate: June 8. 2017 Signature: . - - .. Douglas Week Page 3 of3 Exhibit DISTRICT OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, 19107-3499 215-686-8000 May 30, 2017 Via E-Mail President Judge Marsha H. Nei?eld Philadelphia Municipal Court 1303 Criminal Justice Center 1301 Filbert Street Philadelphia, PA 19107 Re: Nolen v. DAO, Of?ce of Open Records Docket 2017?1091 To the Honorable Marsha H. Nei?eld: I am the Open Records Of?cer for the Philadelphia District Attorney's Of?ce (DAO). The DAO previously received a request pursuant to the Right-to-Know?Law (RTKL), 65 RS. 67.101-67.3104, seeking: 1. ?The current agreement between the Philadelphia Police Department, Municipal Court, District Attorney?s Of?ce and other partners governing the Preliminary Arraignment Reporting System 2. ?The current agreement governing access by Immigration and Customs Enforcement to On May 17, 2017, I issued my ?nal response to the requester, redirecting him to the First Judicial District (FJD). It is my understanding that those records, if they exist, are maintained by Your Honor and Deputy Court Administrator Kevin Cross. On May 19, 2017, the requester appealed that decision to the Of?ce of Open Records (00R). That appeal has now been docketed. The requester has taken the position that because the DA0 is a party to the PARS agreements with the FJD, any such agreements in the possession of the FJD are purportedly within the possession of the DA0 for purposes of the RTKL. The position is and will be that neither the DA0 nor any non-judicial agency has any legal authority to compel judicial personnel to disclose documents pursuant to RTKL requests, even where the document is a contract in which the DA0 is a party. See, Grins v. Cnly. of Con, 138 A.3d 88, 100 (Pa. Commw.) (en banc) (?Courts of this Commonwealth have the inherent right and power to supervise or discharge personnel and that power may not, consistent with the constitutional doctrine of separation of powers, be policed, encroached upon or diminished by another branch of government?), appeal denied, 157 A.3d 483 (Pa. 2016). Accordingly, Page 1 of2 redirecting the requestor to the judiciary was the appropriate response given the separation of powers. See id. (?Regardless of whether responsive records are simultaneously of a county and of a judicial agency, a county must defer to the judicial agency for a response?); see also 65 PS. 67.502(b) (?The open-records of?cer shall receive requests submitted to the agency under this act, [and] direct requests to other appropriate persons within the agency or to appropriate persons in another agency . . . Because the FID is apparently in possession of the documents, it should be given an opportunity to participate in the appeal before the 00R. Attached you will ?nd all of the relevant documents in the matter, including a ?Request to Participate before the form. That form must be submitted to 00R Appeals Of?cer Benjamin Lorah (BLorah@pa.gov) if the FJD wishes to participate. The City Solicitor?s Open Records Of?cer (Jill Freeman, Esq.) will also be noti?ed about the appeal. The current submission deadline is June 1, 2017, but I will be seeking a short extension to allow time for the DA0 to discuss this matter further with Your Honor and any other interested parties. My contact information is below. Thank you for your attention to this matter. Sincerely, Isl Douglas Week Douglas Weck Open Records Of?cer PHILADELPHIA DISTRICT OFFICE Three South Penn Square Philadelphia, PA 19107-3499 (215)686-5 736 douglas.weck@phila.gov Cc: Dominic Rossi, Esq., Deputy Court Administrator (FJD) Jodi Lobel, Esq., Deputy of Training, Technology, and Special Projects (DAO) Bryan Hughes, Esq., Chief of Civil Litigation (DAO) Jill Freeman, Esq. (City) Page 2 of 2 DISTRICT OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, 19107-3499 215?686-8000 May 30, 2017 Via E-Mar'l Jill Freeman, Esq. Open Records Of?cer City of Philadelphia Law Department 1515 Arch Street Philadelphia, PA 19102 Re: Nolen v. DAO, Of?ce of Open Records Docket 2017-1091 Ms. Freeman: I am the Open Records Of?cer for the Philadelphia District Attomey?s Of?ce (DAO). The DAO previously received a request pursuant to the Right-to-Know-Law (RTKL), 65 RS. 67.101-67.3104, seeking: 1. ?The current agreement between the Philadelphia Police Department, Municipal Court, District Attorney?s Of?ce and other partners governing the Preliminary Arraignment Reporting System 2. ?The current agreement governing access by Immigration and Customs Enforcement to On May 17, 2017, I issued my ?nal response to the requester, redirecting him to the First Judicial District (F .TD). It is my understanding that those records, if they exist, are maintained by the FJD. Neither the DA0 nor the City?s PARS Technical Lead, Todd Van Gunten, have copies of any current agreements as best as I have been able to tell. On May 19, 2017, the requester appealed my decision to the Of?ce of Open Records (00R). That appeal has now been docketed. The requester has taken the position that because the DA0 is a party to the PARS agreements, any such agreements in the possession of the FJD are purportedly within the possession of the DA0 for purposes of the RTKL. The position is and will be that neither the DA0 nor any non-judicial agency has any authority to compel judicial personnel to disclose documents pursuant to RTKL requests, even where the document is a contract in which the DA0 is a party. See, Grins v. Cnty. of Cm, 138 A.3d 88, 100 (Pa. Commw.) (en banc) (?Courts of this Commonwealth have the inherent right and power to supervise or discharge personnel and that power may not, consistent with the constitutional doctrine of separation of powers, be policed, oneroached upon or diminished by? Page 1 of2 another branch of government?), appeal denied, 157 A.3d 483 (Pa. 2016). Accordingly, redirecting the requester to the judiciary was the appropriate response given the separation of powers. See id. (?Regardless of whether responsive records are simultaneously of a county and of a judicial agency, a county must defer to the judicial agency for a response?); see also 65 RS. 67.502(b) (?The open-records of?cer shall receive requests submitted to the agency under this act, [and] direct requests to other appropriate persons within the agency or to appropriate persons in another agency . . . Because the City is a party to the PARS agreement, it should be given an opportunity to participate in the appeal before the OCR. Attached you will ?nd all of the relevant documents in the matter, including a ?Request to Participate before the form. That form must be submitted to 00R Appeals Of?cer Benjamin Lorah (BLorah@pa.gov) if the City wishes to participate. President Judge Marsha H. Nei?eld of the Municipal Court will also be noti?ed about the appeal. The current submission deadline is June 1, 2017, but I will be seeking a short extension to allow time for the DA0 to discuss this matter further with any interested parties. My contact information is below. Thank you for your attention to this matter. Sincerely, Isl Douglas Week Douglas Week Open Records Of?cer PHILADELPHIA DISTRICT OFFICE Three South Penn Square Philadelphia, PA 19107-3499 (215)686-5 736 douglas.weck@phila.gov Cc: Jodi Lobel, Esq., Deputy of Training, Technology, and Special Projects (DAO) Bryan Hughes, Esq., Chief of Civil Litigation (DAO) Page 2 of2 Lorah, Benjamin From: Douglas Weck Sent: Thursday, June 08, 2017 5:24 PM To: Austin Nolen; Lorah, Benjamin Subject: Nolen v. Phila. DAO, (AP 2017-1091) Attachments: Nolen, RTKL, 00R Submission, PARS Agreements, ?nal.pdf Mr. Lorah and Mr. Nolen, Attached please ?nd the DAO's submission In the above matter. Best. Doug Weck Doug M. Week Assistant District Attorney Open Records Of?cer Civil Litigation Unit Philadelphia District Attomey's Of?ce Three South Penn Square Philadelphia, PA 19107 E: Douglas.Weck@Phlla.gov P: 215-686-5736 PRMLEGED AND CONFIDENTIAL: This message and any attachments are for Intended recipients only. They constitute or contain attorney work product. are protected by the attomeyielient privilege. and may otherwise be protected against public disclosure. if you have received this message In en'or. please notify me. and delete It and any attachments without making or retaining a copy. From: Austin Nolen Sent: Wednesday, June 07, 2017 2:56 PM To: Lorah, Benjamin Cc: Douglas Weck Subject: Re: Submission Period Extended: Nolen v. Phila. DAO, (AP 2017-1091) Deer Appeals Of?cer Lorah, That extension is ?ne. Thank you, Austin Nolen On 6/7/2017 11:56 AM, Lorah, Benjamin wrote: Mr. Nolen: I wanted to con?rm that you agree to extend the ?nal determination deadline in this appeal. Please respond at your earliest convenience. Sincerely, Ben Lorah Benjamin Lorah . a, Attorney Of?ce of Open Records Commonwealth Keystone Building 400 Norlh St., Plaza Level Harrisburg, PA 17120-0225 WIW cw WE Con?dentiality Notice: This electronic communication is privileged and con?dential and is intended only for the party to whom It is addressed. If received In error, please retum to sender. From: Lorah, Benjamin Sent: Thursday, June 01, 2017 11:16 AM To: anoienQthIlydeclaration.o[g: Douglas Weck Subject: Submission Period Extended: Nolen v. Phila. DAO, (AP 2017-1091) Dear Parties: The Of?ce?s request to extend the record closing date in this appeal is GRANTED. In addition, the Requester's request for a modi?ed briefing schedule is GRANTED. The revised submission schedule will be as follows: a The District?s deadline for submitting a position statement In this appeal is June 8, 2017. I The Requester?s deadline for submitting a reply to the District's position statement is June 15, 2017. The District may ?le a sur-reply byJune 22, 2017, If necessary. To accommodate the modi?ed briefing schedule, the OCR requires a three week extension to issue a ?nal determination in this appeal. Under the extension, the ?nal determination deadline would be July 10, 2017. Mr. Nolen, please indicate your agreement to extend the ?nal determination deadline and we will amend the docket accordingly. Thank you for your attention to this matter. Sincerely, Ben Lorah f. Benjamin Lorah g, Attorney Of?ceafOpen Records Commonwealth Keystone Building 400 North St.. Plaza Level Harrisburg. PA 17120-0225 (Li?3.0.317 346-9 Con?dentiality Notice: This electronic communication is privileged and con?dential and Is Intended only for the party to whom it is addressed. if received In error. please return to sender. IN THE OFFICE OF OPEN RECORDS OF THE COMMONWEALTH OF IN THE 0F 5 AUSTIN NOLEN, A a] om ah Requester - 8 car. . or v, Docket No.: AP 2017-1091 PHILADELPHIA DISTRICT Unnumbered Request ATTORNEY-s OFFICE, Respondent 3 ?ight to Kn? Law Rem Austin Nolen, hereinafter ?requester,? hereby replies to the response of the Philadelphia District Attorney's Of?ce, hereinafter in an appeal of the adverse determination of the DA0 concerning the above-captioned request. I. Ordering Release of these Records Does Not Violate the Separation of Powers For the ?rst time on appeal, the DA0 claims that an order to produce the requested records would violate separation of powers principles and the constitutional autonomy of the judiciary. The DAO has a practice of employing arguments abougt judicial procedures in support of its decisions to 1 withhold executive records. In the Bagwell case, 155 A.3d 1119 (Pa. Commw. Ct. 2017), the Commonwealth Court found that ?[olur holding [in an attorney- client privilege case] quite distinguishable from the one the City and the District Attorney represent in their brief.? The Court also agreed with the trial court that ?the District Attorney's representation of binding precedent and the state of the law in this Commonwealth throughout these proceedings was de?cient at best.? Id. at 1131, 1142. In this case as well, the DA0 attempts to stretch precedents to cover situations completely beyond the reach of the decisions they cite. The two leading decisions on judicial records under the RTKL (as distinct from executive records related to pending litigation) are Court of Common Pleas of Lackawanna Cnty. Of?ce of Open Records, 2 A.3d 810 (Pa. Commw. 2010) and Grins v. Cnty. of Gm, 138 A.3d 88 (Pa. Commw. Ct. 2015). Much as the DA0 misrepresented precedent in the Bagwell case, the precedents they glean from these two cases are also drastically different from what the Commonwealth Court actually decided. In Lackawanna, the Court found that email records created by a judicial employee and maintained by a local agency were judicial, not public, records and that judicial records are not subject to the control of the OCR. Lackawanna, 2 A.3d at 813. In Grins, the Court held that records disclosing judges' phone cells could not be obtained from a county using the Right to Know Law. In both cases, the Court's ?rationale was based on the need for the judiciary to retain supervisory control over its personnel.? Grins, 138 A.3d 88, 98. It is a similar concern that runs through the cases the DA0 cites from other contexts. For instance, State Ass?n of Jury Comm?rs 0. Com, 78 A.3d 1020 (Pa. 2013) is cited for the proposition that ?[t]he judiciary?s authority over court personnel is essential to the maintenance of an independent judiciary.? See also the other cases cited in the same paragraph. The records requested in the current case do not in any way implicate the right of the courts to supervise their own employees and ?les. Rather than requesting judicial employee records, or records documenting the work of judges, their staff or others performing judicial functions, requester seeks an administrative agreement between the President Judge of the Municipal Court of Philadelphia and two local agencies relating to an information sharing scheme common to all three. If the DA0 were responsible and maintained its own copy, there would be no plausible claim that the records were judicial records. Just as a county cannot be forced to turn over a judicial record, a non-judicial record cannot be moved outside of the scope of the RTKL merely by giving it to a judicial agency acting in its administrative capacity. The only question is whether the DA0 controls the records. The Requested Records are Under the Control of BAD The DAO claims that accordance with the RTKL, it was determined that the requested records were not in the possession, custody or control of the DA0, but were instead in the exclusive possession, custody or control of the independent but does not explain the criteria used by the DA0 to reach that conclusion. DAO Brief, 4. The RTKL does not limit its reach to records in an agency's direct possession. It extends to records which an agency ?controls.? The DAO, which bears the burden of proof to show that it does not control the requested records, has not provided any on-point legal or factual support for its position. The only legal authority cited directly for its position is Sturgis v. Dep?t of Corn, 96 A.3d 445, in which the Court determined that the Department of Corrections is not obligated to obtain records from the courts. This situation is entirely different. In this case, the DA0, along with the City of Philadelphia, entered into an administrative agreement with the President Judge of the Philadelphia Municipal Court to govern information sharing practices. The DAO now represents that neither it, nor the City, retained copies of this agreement, but that all of the records are in possession of the Municipal Court. To understand that the DA0 controls this record, one need merely to consider a hypothetical: if the DA0 needed a copy of the agreement for internal business reasons, e.g. to make sure it was adequately meeting its obligations under the agreement, where would it obtain a copy? Nowhere in his af?davit does Mr. Week aver that the Municipal Court would decline to provide the DA0 a copy in that case. If the DA0 can obtain a copy of the record, and exercise control over the record, for internal business purposes relating to an agreement between the parties, it is obligated to attempt to obtain a copy of the record in response to a Right to Know request. To hold otherwise would be to allow agencies to avoid the RTKL by irresponsibly handing off records to organizations and individuals not directly covered by the law, as the DA0 did in this case. Unless Mr. Weck avers under penalty that the Municipal Court would not provide a copy to the DA0 in the course of business related to the agreement, the OCR must order the agreement released. This is all the more true given that it is far from clear that requester could obtain a copy of the agreement from the Municipal Court. The application of the RTKL to the judicial branch is restricted to ?nancial records. 65 RS. Mr. Weck himself admits in his af?davit that requester would have to go through the court procedure to access ?nancial records. Week Attestation 1[ 14. Where the DA0 clearly has control of the record, and the possibility of obtaining the record from the Municipal Court is uncertain at best, it is unnecessary and prejudicial to require requester to go through that second process. For the reasons set forth above, requester respectfully asks the OCR to reverse the determination of the District Attorney's Of?ce and order the requested records released. Reapect??ly submitted this 14th day of June, 2017 mm Austin Nolen PO Box 29476 Philadelphia, PA 19125 ill 1 Lorah. Benl'amin From: Austin Nolen Sent: Wednesday, June 14. 2017 11:23 AM To: Lorah, Benjamin Cc: Douglas Weck Subject: Reply in Nolen v. DAO, AP 2017-1091 Attachments: 00R Appeal Reply, AP 2017-1091.pdf Dear Appeals Of?cer Lorah, Attached is my reply to the DAO's submission. Thank you, Austin Nolen cc: Douglas Weck DISTRICT OFFICE THREE SOUTH PENN SQUARE PHILADELPHIA, 19107-3499 21 5-686-8000 June 22, 2017 Via E-Mail Benjamin Lorah, Esq. Of?ce of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 blorah@pa.gov Re: DAO Surreply for Nolen v. DAO, AP 2017-1091, PARS Agreements Appeals Of?cer Lorah: Please accept this letter as the Philadelphia District Attorney?s Of?ce's (DAO) surreply to requester Austin Nolen?s June 14, 2017, reply. By way of background, the requester is asking both the Of?ce of Open Records (00R) and the DA0 to force personnel of the First Judicial District of (FJD) to release records in the FJD's possession. Mr. Nolen correctly identi?es the key issue: ?whether the DA0 controls the records? in the possession of the FJD. (Nolen Reply, 4.) The DAO's opening submission decisively established that it does not have such control both as a matter of constitutional law and as a matter of reality. The following warrants highlighting. First, as a matter of law, the FJD has exclusive control over its documents and personnel. In the RTKL context, Grine v. County of Centre is clear that ?[e]very court has supervisory power over its own records and ?les." 138 A.3d 88, 100 (Pa. Commw.) (en banc) (alterations, internal quotation marks, and citation omitted)), appeal denied, 157 A.3d 483 (Pa. 2016). Even if ?responsive records are simultaneously of a county and of a judicial agency, a county must defer to the judicial agency for a response." Id. The DAO did exactly what it was supposed to do when it redirected Mr. Nolen to the FJD. Second, the reality is that the DA0 has no actual control over the documents or personnel, per Exhibit A, Attestation by Open Records O?icer Douglas Week: 8. Based on those communications, I learned that responsive documents were . . . under the exclusive control of President Judge Marsha Nei?eld of the Municipal Court of the FJD. Page 1 of 2 14. Following, Deputy Rossi and I discussed the matter. He stated that if the matter is referred to the FJD the requester would have to seek the information through the Rule of Judicial Administration No. 509 procedure . . . . The FID is plainly requiring that Mr. Nolen seek access through the FJD's procedures. The DAO respectfully requests that this appeal be dismissed for lack of jurisdiction. If I can provide further clari?cation or legal argument, please do not hesitate to contact me. Sincerely, ls/ Douglas Week Douglas Week Open Records Of?cer cc: Austen Nolen Page 2 of2 Lorah, Benjamin From: Douglas Weck Douglas.Weck@Phila.gov> Sent: Thursday, June 22, 2017 3:08 PM To: Austin Nolen; Lorah, Benjamin Subject: Surreply in Nolen v. DAO, AP 2017-1091 Attachments: Nolen, RTKL. OOR Sur?reply, PARS Agreements, ?nal.pdf Appeals Officer Lorah, Attached please ?nd the DAO's surreply in this matter. Best, Doug Weck Doug M. Weck Assistant District Attorney Open Records Of?cer Civil Litigation Unit Philadelphia District Attorney's Office Three South Penn Square Philadelphia, PA 19107 E: Douglas.Weck@Phila.gov P: 215-686-5736 PRIVILEGED AND CONFIDENTIAL: This message and any attachments are for intended recipients only. They constitute or contain attorney work product, are protected by the attorney/client privilege, and may otherwise be protected against public disclosure. If you have received this message in error, please notify me, and delete it and any attachments without making or retaining a copy. From: Austin Nolen Sent: Wednesday, June 14, 2017 11:23 AM To: blorah@pa.gov Cc: Douglas Weck Subject: Reply in Nolen v. DAO, AP 2017-1091 Dear Appeals Of?cer Lorah, Attached is my reply to the DAO's submission. Thank you, Austin Nolen cc: Douglas Weck 10 Lorah. Ben'lamin From: Lorah. Benjamin Sent: Friday. June 30. 2017 4:06 PM To: 'anoien@phillydeclaration.org' Cc: 'Douglas Weck' Subject: Extension Request: Nolen v. Phila. DAO. (AP 2017-1091) Mr. Nolen: We request a two week extension to issue a ?nal determination in this appeal. Under the extension, the ?nal determination will issue on or before July 24, 2017. Please respond at your earliest convenience and we will amend the docket accordingly. Sincerely, Ben Lorah Benjamin Lorah - Attorney Of?ce of Open Records Commonwealth Keystone Building 400 North St. Plaza Level Harrisburg, PA 17120-0225 17.1mm manual min?0 enReoordsPA Con?dentiality Notice: This electronic communication is p?vileged and con?dential and Is Intended only for the party to whom it is addressed. If received In error. please return to sender. 11 Lorah. Benjamin From: Austin Nolen Sent: Friday. June 30. 2017 7:13 PM To: Lorah, Benjamin Cc: Douglas Weck Subject: Re: Extension Request: Nolen v. Phila. DAO, (AP 2017-1091) Dear Appeals Of?cer Lorah, That extension is ?ne. Can you give me a sense of what causes the necessity for the extension? Thank you, Austin Nolen On 6/30/2017 4:05 PM, Lorah, Benjamin wrote: Mr. Nolen: We request a two week extension to issue a ?nal determination in this appeal. Under the extension, the ?nal determination will issue on or before July 24, 2017. Please respond at your earliest convenience and we will amend the docket accordingly. Sincerely, Ben Lorah f. Benjamin Lorah Attorney Of?ce of Open Records Commonwealth Keystone Building 400 North St. Plaza Level Harrisburg, PA 17120-0225 1 MW bio I Con?dentiality Notice: This electronic communication is privileged and con?dential and is intended only for the parly to whom it is addressed. lf received In error. please return to sender. 12 Lorah, Benjamin From: Sent: To: Subject: Dear Parties: Lorah, Benjamin Wednesday. July 5. 2017 4:18 PM anolen@phillydeclaraticn.crg; Douglas Weck Final Determination Deadline Extended: Nolen v. Phila. DAO. (AP 2017-1091) This message con?rms the Requester's agreement to extend the ?nal determination deadline in this appeal. The final determination will now issue on or before July 24, 2017. In response to Mr. Nolen?s question, the extension was requested to provide additional time to complete my review the submissions and prepare the final determination. Sincerely, Ben Lorah Benjamin Lorah Attomey . Office of Open Records Commonwealth Keystone Building 400 Norih St. Plaza Level Harrisburg. PA 17120-0225 WIMW Confidentiality Notice: This electronic communication is privileged and con?dential and is intended only for the parly to whom it is addressed. if received in em. please return to sender. 13 pennsyivania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF AUSTIN NOLEN, Requester v. Docket No: AP: 2017-1091 PHILADELPHIA DISTRICT OFFICE, Respondent INTRODUCTION Austin Nolen (?Requester?) submitted a request (?Request") to the Philadelphia District Attorney?s Of?ce pursuant to the Right-to?Know Law 65 RS. 67.101 et seq., seeking agreements related to the Preliminary Arraignment Reporting System The Of?ce denied the Request, directing the Requester to obtain the records Earn the First Judicial District of (?Court? or The Requester appealed to the Of?ce of Open Records For the reasons set forth in this Final Determination, the appeal is granted, and the Of?ce is required to take ?thher action as directed. FACTUAL BACKGROUND On March 18, 2017, the Request was ?led, seeking: I. The current agreement between the Philadelphia Police Department, Municipal Court, [the] Of?ce and other partners governing the PARS. . .. II. The current agreement governing access by Immigration and Customs Enforcement to PARS. On May 17, 2017, after extending the response period and following the Requester?s agreement to additional extensions of the response period, 65 RS. the Of?ce denied the Request, claiming that it does not possess responsive records. Instead, the Of?ce directed the Requester to obtain the requested agreements from the Deputy Court Administrator.? On May 18, 2017, the Requester requested that the Of?ce reconsider its denial as the Of?ce is a party to the agreements. On May 19, 2017, the Of?ce reiterated that it does not possess reSponsive records and has no obligation to obtain them ?'om the Court?a separate agency also subject to the RTKL. See 65 PS. 67.304. On May 19, 2017, the Requester appealed to the OCR, challenging the Of?ce?s denial and stating grounds for disclosure.2 The OOR invited both parties to supplement the record and directed the Of?ce to notify any third parties of their ability to participate in this appeal See 65 PS. On May 30, 2017, the Of?ce noti?ed the City of Philadelphia and the Court of the pendency of this appeal. On June 8, 2017, the Of?ce ?led a position statement reiterating the grounds for denial cited in its response. The Of?ce also claimed that the OCR lacks jurisdiction to consider this appeal because the Request requires the Of?ce to obtain responsive records from the Court, which violates the constitutional separation of powers? In support of its position, the Of?ce submitted the attestation of Douglas Week, the Oi?ce?s Open Records Of?cer. On June 14, 2017, the Requester ?led a supplemental position statement reiterating his claim that the records are subject to public access under the RTKL because they are in the 1 In its response, the Of?ce provided the Requester with a copy of the 2010 PARS agreement, which it acknowledged was not responsive to the Request as it was not the current agreement. 2 The Requester also asks the OCR to ?nd that the Of?ce acted in bad faith. While the OCR may make ?ndings of bad faith, only the courts have the authority to impose sanctions on agencies. See 65 RS. 67.1304-1305. 3 TheOf?ceispermittedto therecords oneppealtothe 00R. SeeLew Senate ofPa. 65 A.3d 361 (Pa. 2013). 2 constructive possession of the Of?ce as a party to the agreements. The Requester also noted that there is no suggestion that the Court would re?ise to provide the requested agreements if the Of?ce required copies for its own internal business purposes. On June 22, 2017, the Of?ce responded, arguing that Court has exclusive control over the responsive records and the records must be requested using the Court?s procedures. LEGAL ANALYSIS ?The objective of the Right to Know Law is to empower citizens by affording them access to information concerning the activities of their government.? SWB Yankees L.L. C. v. Wintemantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is ?designed to promote access to of?cial government information in order to prohibit secrets, scrutinize the actions of public of?cials and make public of?cials accountable for their actions.? Bowling v. Q??ice of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), w?d 75 A.3d 453 (Pa. 2013). The 00R is authorized to hear appeals for all Commonwealth and local agencies. See 65 RS. An appeals of?cer is required ?to review all information ?led relating to the request? and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 RS. An appeals of?cer may conduct a hearing to resolve an appeal. The law also states that an appeals of?cer may admit into evidence testimony, evidence and documents that the appeals of?cer believes to be reasonably probative and relevant to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id; Giurintano v. Dep ?t of Gen. Set-v.92, 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither party requested a hearing, and the OCR has the necessary information and evidence before it to properly adjudicate the matter. The Of?ce is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. 65 P.S. 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within ?ve business days. 65 P.S. 67.901. An agency bears the burden of proving the applicability of any cited exemptions. 65 P.S. Section 708 of the RTKL places the burden of proof on the public body to demonstrate that a record is exempt. 65 P.S. 67.708. In pertinent part, Section 708(a) provides: The burden of proving that a record of a Commonwealth agency or local agency is exempt ?nal public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.? 65 P.S. Preponderance of the evidence has been de?ned as ?such proof as leads the fact-?nder to ?nd that the existence of a contested fact is more probable than its nonexistence.? Pa. State Mopers Ass ?n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep ?t of Ii'ansp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). ?The burden of proving a record does not exist is placed on the agency responding to the right-to-know request.? Hodges v. Pa. Dep ?t of Health, 29 A.3d 190, 1 192 (Pa. Commw. Ct. 201 1). The Of?ce claims that it does not possess records responsive to the Request and that the 00R lacks jurisdiction to order access to the responsive records because the Of?ce would be required to obtain a cupy of the agreements from the Court.4 The 00R ?nds that the requested 4 In its response and on appeal, the Of?ce directed the Requester to obtain the responsive records ?'om the Court. A judicial agency designates its own open records of?cer to respond to RTKL requests and the RTKL limits the records that ajudicial agency must disclose to ?nancial records. 65 P.S. 67.304; 65 P.S. 67.502. The Requester is not prohibited ?-om ?ling a request with Court and following the appeal procedures set forth in the RTKL. 4 agreements are records within the constructive possession of the Of?ce and, as such, are subject to the provisions of the RTKL. First, the RTKL de?nes a ?record? as ?[i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency." 65 P.S. 67.102. To determine if certain material is a record, the RTKL imposes a two-part inquiry: (1) does the material document a ?transaction or activity of the agency?; and (2) if so, was the material ?created, received or retained in connection with a transaction, business or activity of [an] agency.? See 65 P.S. 67.102; Allegheny County Dep?t ofAdmtn. Servs. v. A Second Chance, Inc, 13 A.3d 1025, 1034-35 (Pa. Commw. Ct. 2011). Because the RTKL is remedial legislation, the de?nition of a record must be liberally construed. Id.; Gingrich v. Pa. Game Comm ?13, No. 1254 CD. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at ll'13 (Pa. Commw. Ct. 2012). Here, the Of?ce describes the agreementss sought as follows: is an information technology system used to transmit information from arrest through arraignment between the City of Philadelphia (City) Police Department, the [Of?ce], and the Municipal Court of the Primarily, it is the electronic means by which the City police transmit information about a criminal arrest to the [Of?ce] for a charging decision. PARS is used by the [Of?ce] to ?le charges in the Municipal Court and trigger the scheduling of a preliminary arraignment. At the preliminary arraignment in Municipal Court, bail is set and recorded in PARS. The judiciary?s Common Pleas Case Management System extracts data from PARS when it creates a criminal case. Effectively, PARS is an e-?ling system. Essentially, the PARS agreement amounts to an information sharing system regarding criminal information among the City, the Of?ce, and the Court. As the O?ice is a party to the 5 The evidence submitted by the Of?ce does not distinguish between the agreements sought in Item 1 and Item 2 of the Request. 5 agreement, the records relate to the operations of the O?ice and document a transaction or activity of the Office. Second, although the O?ice does not possess a copy of the requested records, the Of?ce has constructive possession of the requested records. On appeal, the O?iee submitted the attestation of Douglas Week, who attests that a search was conducted and that no responsive records were located in the Of?ce?s possession. Under the RTKL, an af?davit made under the penalty of perjury may serve as suf?cient evidentiary support of the nonexistence of records. See Sherry v. Radnor Twp. Sch. Dist, 20 A.3d 515, 520-21 (Pa. Commw. Ct. 201 Moore v. O?ice of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). Based on the evidence provided, the Of?ce has demonstrated that it does not actually possess the requested records. However, the Of?ce has constructive possession of the records. Under the RTKL, two groups of records are accessible: records in an agency?s actual or constructive possession reached directly under Section 901 of the RTKL, and records that are in the possession of third parties that are indirectly accessible through Section 506(d) of the RTKL. See Dental Bene?t Providers, Inc. v. Etseman, 86 A.3d 932, 938-39 (Pa. Commw. Ct. 2014), afd 124 A.3d 1214 (Pa. 2015). In Etseman, the Commonwealth Court explained the concept of constructive possession under the RTKL as follows: Constructive possession focuses on an agency?s access to a record. The analysis emphasizes the statutory language in Section 901 of the RTKL that mandates an agency ?determine whether [it] has possession, custody or control of the identi?ed record.? 65 PS. 67.901. We recognize constructive possession under Section 901 as a means of access so agencies cannot frustrate the purposes of the RTKL by placing their records in the hands of third parties to avoid disclosure. See Borough v. Steams, 35 A.3d 91 (Pa. melth. 2012); O?ice of the Budget v. O?'z?ce of Open Records, 11 A.3d 618 (Pa. melth. 2011). However, this Court does not infer constructive possession ?om the mere availability of the records to an agency upon request. O?ice of the Budget (construing ?control? narrowly as to records of a private contractor). The litmus test under Section 901 remains whether the records document a transaction of the agency to which the request was directed, not whether they document a transaction of a private contractor. This Court explained: ?Similarly, while [the Of?ce of the] Budget has the right to audit these payroll records, there is no evidence that they have ever been in Budget?s possession or that Budget is attempting to play some sort of shell game by shifting these records to a non-governmental body.? O?ice ofthe Budget, 11 A.3d at 621. Id. The Commonwealth Court has established that when records in the possession of an agency of?cial or third party contractor document a transaction or activity of an agency, those records constitute ?records? of an agency under the RTKL and are in the agency?s constructive possession. See, Barkeyville Borough v. Stems, 35 A.3d 91, 95 (Pa. Commw. Ct. 2012). Here, the parties do not contest that the Of?ce is a party to the PARS agreement with the Court, and the O?ice does not claim that it never possessed copies of the responsive records, nor does it claim that the requested agreements do not document an activity of the Of?ce. Instead, the Of?ce claims that the records are not subject to access merely because it did not retain copies of them. Therefore, as the requested agreements document a transaction or activity of the Of?ce, the Of?ce has constructive possession of the agreements and must obtain them from the Court to comply with its obligations under the RTKL. See Edinboro Univ. ofPa. v. Ford, 18 A.3d 1278, 1281 (Pa. Commw. Ct. 2011) appeal denied 55 A.3d 525 (Pa. 2012) (holding that the agency was required to re-obtain records that it had previously received but no longer retained). To hold otherwise would permit the Of?ce to shield records ?'om access by placing them in the hands of a third party, something that is not permitted under the RTKL.6 6 As the Request seeks copies of agreements in the constructive possession of the Of?ce and not records created by an agency contractor pursuant to the delegation ofa government mnetion, the 00R is not required to address whether the records are subject to access under Section 506(d) of the RTKL. 7 Third, the fact that the Of?ce would be required to obtain the requested agreements ?'om the Court does not deprive the 00R of jurisdiction over this appeal. The 00R does not have jurisdiction over appeals related to requests directed to judicial agencies. 65 PS. In Faullc v. Phila. Clerk of Courts, the Commonwealth Court upheld an 00R dismissal of an appeal challenging a clerk of comts? deemed denial of a RTKL request. The Commonwealth Court reasoned that: The RTKL explicitly confers jurisdiction on appeals of?cers within 00R to render determinations regarding records disputes involving Commonwealth and local agencies. Section 503(a) of the RTKL, 65 PS. By contrast, appeals of disputes involving a judicial agency are appealed to an appeals of?cer so designated by thatjudicial agency. Sections 503(b) and 1101(a) of the RTKL, 65 P.S. 67.50303). ?Judicial agency? is de?ned by the RTKL as, court of the Commonwealth or any other entity or of?ce of the uni?ed judicial system." Section 102 of the RTKL, 65 PS. 67.102. ?[C]lerks of court are personnel of the uni?ed judicial system.? League of Women Voters of Greater Pittsburgh v. Allegheny Cnty., 819 A.2d 155, 158 n.12 (Pa. melth. 2003) (citing Section 102 of the Judicial Code, 42 Pa. C.S. 102). Based on the express terms of the RTKL, judicial agencies, including Clerk, are not subject to jurisdiction. 65 RS. see Hazier v. Phllo. Chg). O?ice of Prothonotory, 58 A.3d 858 (Pa. melth. 2012); Antidormt v. Lackawanno Cnty. Clerk of Courts (Pa. melth., No. 274 CD. 2011, ?led September 14, 2011) (unreported), 2011 Pa. Commw. Unpub. LEXIS 779, 2011 WL 10841266. Id, 116 A.3d at 1185-1186. Although judicial agencies are only required to provide ?nancial records upon request, records ?led with judicial agencies that are also in the possession of another agency, including a local agency such as the Of?ce, may be subject to public access. The 00R has jurisdiction over appeals related to requests for records in the possession of local agencies that document a transaction or activity of that agency, even when those records may have been created by, or ?led with, a judicial agency. For example, pleadings in litigation or court orders in the possession of a local agency are records subject to the jurisdiction of the 00R, however, those same documents would not be subject to the jurisdiction of the OCR if requested from and in the sole possession of a court or other judicial agency. 65 RS. 67.5 03(a); Saylor v. Bucks County, 00R Dkt. AP 2013- 0226, 2013 PA 0.0.R.D. LEXIS 2013; but see Luckawanna County Court of Common Pleas v. O?ice of Open Records, 2 A.3d 810 (Pa. Commw. Ct. 2010); Grine v. County of Centre, 138 A.3d 88 (Pa. Commw. Ct. 2016) (holding that cellular phone records of judicial personnel are records ?oi" a judicial agency, even if paid by a local agency). Here, the Request seeks agreements between the Of?ce and the Court related to the information-sharing among several entities. As previously stated, the agreements are records of the Of?ce because they document a transaction of the Of?ce. As the Of?ce constructively possesses copies of the agreement, the records are subject to the jurisdiction. To hold otherwise would ??'ustrate the purposes of the RTKL by [allowing agencies to place] their records in the hands of third parties to avoid disclosure." Eiseman, 86 A.3d at 938-39. Finally, as to the claims of bad faith, there is no indication that the Agreement was not maintained as an intentional act to avoid providing records under the RTKL and as such the request for a ?nding of bad faith on the part of the Of?ce is denied. CONCLUSION For the foregoing reasons, Requester?s appeal is granted, and the Of?ce is required to provide copies of all responsive records within thirty days. This Final Determination is binding on all parties. Within thirty days of the mailing date of this Final Determination, any party may appeal to the Philadelphia County Court of Common Pleas. 65 RS. All parties must be served with notice of the appeal. The 00R also shall be served notice and have an opportunity to respond as per Section 1303 of the RTKL. However, as the quasi?judicial tribunal adjudicating this matter, the OCR is not a proper party to any appeal and should not be named as a party? This Final Determination shall be placed on the OCR website at: FINAL DETERMINATION ISSUED AND MAILED: July 24, 2017 ls/ Benjamin Lorah, Esq. APPEALS OFFICER BENJAMIN A. LORAH, ESQ. Sent to: Austin Nolen (via e-mail only); Douglas Week, Esq. (via e-mail only) 1' Padgett v. Pa. State Police, '73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013). 10