LAW DEPARTMENT

ONE PARKWAY BUILDING

1515 ARCH STREET
PHILADELPHIA, PA 19102

Shelley R. Smith
City Solicitor

Benjamin S. Mishkin
Assistant City Solicitor
(215) 683-5022
(215) 683-5069 (fax)
Benjamin.Mishkin@phila.gov

CITY OF PHILADELPHIA











August 13, 2014

VIA ELECTRONIC MAIL ONLY

Kathleen Higgins, Esquire
Commonwealth of Pennsylvania
Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225
KaHiggins@pa.gov

Re: Nolen v. City of Philadelphia, AP 2014-1187

Dear Appeals Officer Higgins:

I represent the City of Philadelphia (City) in connection with the above-captioned appeal.
This letter constitutes the Citys response to Mr. Nolens appeal. The City incorporates its Final
Response, dated July 18, 2014, as though set forth fully herein and reserves the right to provide further
evidence if the instant request is appealed beyond the Office of Open Records (OOR). Bowling v.
Office of Open Records, 990 A.2d 813, 822-23 (Pa. Commw. 2010), affirmed 2013 WL 4436219, at
**20-21 (Pa. Aug. 20, 2013). For the reasons discussed below, the requestors appeal should be
denied.

I. Brief Discussion of Procedural History

On or around June 11, 2014, the City received Mr. Nolens request for all police incident
reports created by the Civil Affairs Unit for the date of March 10, 2014.

On June 18, 2014, the City advised Mr. Nolen it required additional time to respond to his
request. On July 18, 2014, the City sent its Final Response to Mr. Nolen, denying his request. The
instant appeal followed.






2


II. Argument

A. The City Has No Responsive Records

Although the City asserted substantive grounds of denial that were applicable from the face of
Mr. Nolens request, during the pendency of this appeal the City has determined that there are in fact
no records responsive to his request. Therefore, Mr. Nolens appeal should be denied on the merits
because no responsive records exist. An affidavit attesting that there are no responsive records is
attached as Exhibit A (Affidavit of Lt. Edward Egenlauf, Open Records Officer, Philadelphia Police
Department.) It is not a denial of access under the Act if the records requested do not exist. The
Commonwealth Court has repeatedly 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. Hodges v. Pa. Dept of Health, 29 A.3d
1190, 1192 (Pa. Commw. 2011). The language included in these affidavits that [i]t is understood that
this does not mean that additional records do not exist under another spelling, another name, or another
classification has been expressly approved by the Commonwealth Court. As the Court explained,
[t]he misfiling or misclassification of records is always a possibility. An agency is only required,
however, to search for and provide the records which are requested. . . . It was not required to sift
through all of its records in order to determine if something under a different spelling or classification
might possibly relate to [the] request. Hodges at 1193.

Were records responsive to Mr. Nolens request to exist, the City notes that, as it asserted in its
July 18, 2014 Final Response, any such records would be exempt as criminal and/or noncriminal
investigatory material pursuant to 65 P.S. 67.708(b)(16)-(17).

B. Conclusion

For the foregoing reasons, the instant appeal should be denied. Thank you for your
consideration of this matter.

Respectfully submitted,


Benjamin S. Mishkin

cc: Lieutenant Edward Egenlauf, Open Records Officer, Philadelphia Police Department;
Mr. Austin Nolen (via Electronic Mail)



















EXHIBIT A