Nicholas Malfitano Aug. 31, 2015, 1:29pm


PHILADELPHIA – Per an Aug. 12 decision from the Commonwealth Court of Pennsylvania, the Office of Open Records (OOR) will have a second opportunity to explain its disclosure process in a case of Governor’s Office records.

The Commonwealth Court vacated the prior order of the OOR and remanded the case to it, ordering it to make a final determination on Governor’s Office records access sought by attorney Robert H. Davis Jr. within 30 days.

The matter came before judges Dan Pellegrini, Bernard L. McGinley, Bonnie Brigance Leadbetter, Renée Cohn Jubelirer, Robert E. Simpson Jr., P. Kevin Brobson and Patricia A. McCullough of the Court, with Simpson writing the Court's opinion.

On March 27, 2014, Davis filed a Right-To-Know-Law (RTKL) request seeking all communications and records pertaining to the Pennsylvania Game Commission’s consideration of William Capouillez for the position of its Executive Director.

Specifically, Davis sought all information and records connected to a pair of letters, the first being the March 11, 2014 letter of First Executive Deputy General Counsel Jared W. Handelman to Chief Counsel Bradley C. Bechtel, and the second being the March 18, 2014 letter from former Governor Tom Corbett and others to members of the Pennsylvania Game Commission.

Per the court, the sought records consist mainly of email correspondence and their respective attachments.

Both letters detail “various executive and legislative officials recommending that the Commission not consider Capouillez as a candidate for the Executive Director position.”

After invoking a 30-day extension, the Governor’s Office partially granted and partially denied Davis’ request, withholding personal e-mail addresses and phone numbers pursuant to Section 708 (b) (6) of the RTKL; documents reflecting internal, pre-decisional deliberations pursuant to Section 708(b)(10) of the RTKL; and, documents containing communications exempt under the attorney-client privilege.

Subsequently, Davis appealed to the OOR, which invited the parties involved to supplement the record. The Governor’s Office provided Bates-labeled records to OOR for review, along with an index listing exemptions to each Bates-labeled record.

The index listed each email by date and time, the names of correspondents, and, for some records, the subject of the email. However, the index “did not identify the employer or title of the participants, and it did not explain how each exemption applied to the records.”

Based on the review, OOR granted the appeal in part and denied it in part. OOR concluded the Governor’s Office correctly redacted personal email addresses and phone numbers and properly withheld certain records under the pre-decisional deliberative exception.

The partial withholding of records occurred because “they reflect the internal, pre-decisional deliberations of the Governor’s Office employees and employees or officials of an agency as defined by the RTKL.”

As to the records found exempt, OOR referenced records and parts of records Bates-labeled OG 001-069, identifying which portions were exempt with some specificity.

However, OOR granted access to the records Bates-labeled OG 070-133 without explaining the reasons for finding them not exempt with reference to specific records. Notably, OOR did not describe which of the “remainder of the records…are not internal and/or deliberative in nature” by Bates-label or any other label, being that the Governor’s Office “has not demonstrated that certain records are deliberative in nature.”

The Governor’s Office petitioned to the Commonwealth Court for review of the OOR decision, charging it erred in not protecting privileged communications and applying pre-decisional deliberative exception.

The Commonwealth Court determined the Governor’s Office bore the burden of proving a record was legally privileged, through four criteria:

-The asserted holder of the privilege is or sought to become a client;

-The person to whom the communication was made is a member of the bar of a court, or his subordinate; 

-The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort; and

-The privilege has been claimed and is not waived by the client.

The OOR’s position was some of the Governor’s Office communications failed the third and fourth prongs of those criteria.

“However, once the Governor’s Office establishes the privilege, requester bears the burden of proving waiver. To the extent OOR concluded any of the records did not qualify as privileged because the Governor’s Office did not establish waiver, OOR erred,” Simpson said.

The Commonwealth Court also concluded the non-application of the pre-decisional deliberative exception by OOR was lacking. 

“OOR did not explain why it could not discern the deliberative nature from its review of the records in camera. Thus, we lack sufficient information to review the merits of OOR’s determination that ‘certain records’ are not deliberative in nature,” Simpson said.

Simpson then provided the Court’s decision based upon the evidence presented.

“For the foregoing reasons, we vacate OOR’s final determination, and remand to OOR to reissue a final determination in accordance with this opinion. OOR shall reissue a final determination addressing all of the records at issue within 30 days of return of the record from this Court,” Simpson said. 

Simpson added the OOR’s second determination would “explain its reason for rejecting the asserted exemptions, with specific reference to the records by Bates-label corresponding to the four categories set forth above in order to permit appellate review.”

The petitioner is represented by Deputy General Counsel Sean M. Concannon, in Harrisburg.

The respondent is represented by Craig J. Staudenmaier, also in Harrisburg.

The Commonwealth Court of Pennsylvania case 1940 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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