HARRISBURG – An Oct. 13 decision filed by the Commonwealth Court of Pennsylvania has denied a Pennsylvania news group’s request for access to records held by the Office of the Attorney General (OAG).

Petitioners Wallace McKelvey, PennLive and the Patriot News submitted on Aug. 31, 2016, a request for “any report” created by Buckley Sandler LLP, which the OAG had hired to investigate potential crimes related to the use of an email system. They made the request pursuant to Pennsylvania’s Right to Know Law (RTKL).

According to the opinion, the OAG’s Right to Know Officer denied the request on Sept. 8, stating that the report had not been finalized, and was exempt from disclosure as it “represented predecisional deliberations” and “was protected by the attorney-client and attorney-work-product privileges,” according to the court’s opinion, written by Judge Joseph M. Cosgrove.

The petitioners appealed the decision to the OAG Appeals Officer on Sept. 29, 2016, and after conducting an in-camera review, she affirmed the RTK officer’s decision, denying the appeal, the opinion states. After a petition for reconsideration was denied in December, the petitioners appealed to the Commonwealth Court.

On Nov. 22, 2016, while the issue remained under appeal, the OAG publicly released a redacted version of the Buckley Sandler report, with redacted appendices. The petitioners then turned their attention to the appendices, focusing on having the court compel the OAG to release the unredacted versions, the opinion states. 

The court had previously concluded that “the question of whether petitioners requested the appendices to the Buckley Sandler Report when they filed the Aug. 31, 2016, RTKL request was a threshold question of law that must be determined before a ruling could be made on petitioners’ pending motions or the underlying merits of privilege or exemption,” writes Cosgrove. Therefore, the court turned its attention to this question.

The court pointed out that a requester cannot expand or change an RTKL request upon appeal, nor can the OAG Appeals Officer “narrow or reframe” the request. Because the request had been made on Aug. 31, 2016, and as Cosgrove writes, “there is no record evidence which indicates the appendices requested by petitioners existed” on that day, the appendices cannot be seen to have been included in the RTKL request. Therefore, the court affirmed the appeals officer’s decision.

Though the majority concurred with this decision, Judge Patricia A. McCullough dissented in part. In a concurring and dissenting opinion, McCullough agrees that “an agency does not have to create a requested record when that record does not exist, in any discernable form, at the time of the request.”

McCullough does not agree, however, with the majority’s decision that the petitioners’ attempts to include the appendices within their request constitute a change to the request. 

“While the content of the report may have transformed through time, it is apparent to me that the petitioners’ request for ‘any report(s)’ did not,” she writes.

She also feels that the majority was wrong not to include the appendices within the scope of the petitioners’ original RTKL request. 

“Contrary to the majority, I would conclude that, because the appendices are discussed within the report, and essentially incorporated into the report, the appendices fall squarely within the scope of the petitioners’ request,” she concluded.

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