MEDIA – A Delaware County judge’s denial to release the full and unredacted version of the Borough of Sharon Hill’s report on its community policing procedures to a local citizen advocate, just days before three former Borough police officers were sentenced for their involvement in a shooting which killed an 8-year-old girl in August 2021, is being appealed to the Commonwealth Court of Pennsylvania.
Colleen Kennedy of Upper Darby first filed a petition to that effect in the Delaware County Court of Common Pleas on Dec. 2 versus the Borough of Sharon Hill.
The petition described the events surrounding the shooting which killed 8-year-old Fanta Bility after a football game at Academy Park High School in Sharon Hill and the subsequent investigation surrounding the Borough’s community policing procedures, which led to the issuance of a report on that same information.
However, Kennedy said the report was full of redactions and her efforts to obtain an unredacted version, the complete series of the report’s exhibit documents and an in-camera review of the list of redactions was refused by the Borough, leading her to appeal to the Office of Open Records.
In its final decision on her appeal handed down last November, the OOR determined that all of the Borough’s redactions were appropriate under the attorney-client privilege exemption, based solely upon the Attestation of the Borough’s Agency Open Records Officer, Iesea Nichols.
In Kennedy’s filing, she criticized the Borough’s perceived lack of transparency.
“As a result of the OOR’s decision in this case, as well as the actions of Sharon Hill Borough Council members, the Sharon Hill Police Department, of whom officers killed an 8-year-old and endangered an entire gathering of residents, now operates under police department policies that the public has no ability to review, let alone remedy through public advocacy efforts,” the petition said.
“Should another dangerous situation occur again, these policies could and would in all likelihood absolutely be used by offending officers in defense of them keeping their jobs and pensions, as the three officers who shot into a crowd of innocent people did for months prior to their indictment.”
The petition added the Borough’s claim of attorney-client privilege is also inapplicable.
“It was impossible for the OOR and will be impossible for this Court to fully analyze the Borough’s claim of privilege without conducting an in-camera review of the unredacted copy of the final report. The law not only allows, but demands a review of the unredacted report. Based on what can be gleaned from the Borough’s privilege log and the unredacted portions of the report, it appears likely that a neutral fact finder, reviewing the unredacted report in camera, could find that the Borough has not met its burden to establish that all of its redactions are protected by the attorney client privilege. A review of the redacted report and the face of the Borough’s privilege log indicates a distinct possibility that some of the redactions are not covered by the attorney-client privilege,” the petition stated.
The petition went on to detail that sections of the report dedicated to the exhibits used in the report, summaries of interviews of police officers, a factual summary of Sharon Hill Borough Police Department’s current use of force policies training and the conclusions of the investigation, were all heavily redacted and thus, of no real value.
“The mere scope of the investigation and the underlying factual materials reviewed would not constitute legal advice. Furthermore, a merely factual review of the training and use of force policies which were in place at the time of the incident also would not constitute legal advice. Finally, the recommendations to the department absent confidential communications, which cannot be known without a review are not legal advice. Therefore, this Court should reject the Borough’s claims of privilege. At the bare minimum, a neutral trier of fact must look at these areas to make sure that the Borough’s claim of privilege is being ‘strictly applied’ and not being abused,” the petition continued.
Counsel for the Borough filed a motion to dismiss the petition on March 14, citing improper service of the petition.
“Plaintiff Colleen Kennedy submitted a Right-to-Know Request on Aug. 1, 2022, listing four requests. On Sept. 8, 2022, the Borough issued its response, granting two requests and denying two requests. Plaintiff appealed the Borough’s denial to the Office of Open Records on Sept. 21, 2022. The Borough responded to petitioner’s appeal on Sept. 30, 2022. On Nov. 2, 2022, the Office of Open Records issued its final decision. Following the final decision, plaintiff filed a petition for review with the Delaware County Court of Common Pleas on Dec. 2, 2022,” the dismissal motion said.
“Plaintiff’s petition for review does not contain a certificate of service. Under 65 P.S. Section 67.1302(a), a requester may file a petition for review or other document as required by Rule of Court with the Court of Common Pleas for the county where the local agency is located. Additionally, 65 P.S. Section 67.1303(a), an agency, the requester and the Office of Open Records or designated appeals officer shall be served notice of actions commenced in accordance with Section 1302 and shall have an opportunity to respond in accordance with applicable local rules. Plaintiff did not effectuate service upon defendant for this petition for review in accordance with 65 P.S. Section 67.1303(a). Because of this deficiency, defendants moves this Honorable Court to dismiss this petition with prejudice.”
In an April 4 reply filing, the petitioner argued that the report in question does not fall under the heading of attorney-client privilege, since such communications must meet specific criteria – and that this criteria is “not simply an attorney-client relationship or a report that is referred to as a ‘legal report.”
“All three of the following criteria must be met for communications to be considered protected under attorney-client privilege: It must be between an attorney and their client or their client’s representatives, it must be communications seeking legal advice (the interpretation of laws, the application of legal principles, or the settlement of legal disputes), and the communication must be originally intended to be confidential. It must be made with the expectation that it will not be disclosed to any others,” the reply filing stated, in part.
“In addition, there are specific types of records that are not considered protected under attorney-client privilege, even if the client perceives the situation to meet the three previously listed criteria. Five mainstream examples of records that are regularly challenged under Pennsylvania’s Right to Know Law include administrative or operational records, publicly available records, attorney bills and invoices, factual information (such as witness statements or description of events, for example), and policy records.”
The petitioner ultimately requested that Delaware County Court of Common Pleas Judge John J. Whelan grant an in-camera review of the report.
However, Whelan issued a ruling on April 28 upholding the OOR’s original decision, which affirmed that the redactions made in the report were appropriate and that attorney-client privilege did indeed apply to that material.
“When reviewing a final determination from the Office of Open Records, a trial court employs a standard of review that is de novo and a scope of review that is plenary. The RTKL ‘is remedial legislation designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions,’ A record in the possession of a Commonwealth or local agency shall be presumed to be a public record. 65 P.S. 67.305(a). The presumption shall not apply if the record is protected by a privilege. Privilege is defined in the RTKA as ‘The attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth,” Whelan said.
“The burden of proving that a record of a Commonwealth or local agency is exempt from public access shall be on the agency receiving a request by a preponderance of the evidence. Testimonial affidavits found to be relevant and credible may provide sufficient evidence in support of a claimed exemption. A verification made under the penalty of perjury may also serve as sufficient evidentiary support. Additionally, a privilege log, which typically lists the date, record type, author, recipients, and a description of the withheld record, can serve as sufficient evidence to establish an exemption, especially where the information in the log is bolstered with averments in an affidavit.”
Whelan added that in order for the attorney-client privilege to apply, an agency must demonstrate that: (1) The asserted holder of the privilege is or sought to become a client; (2) The person to whom the communication was made is a member of the bar of a court, or his or her subordinate; (3) The communication relates to a fact of which the attorney was informed by the client, without the presence of strangers, for the purpose of securing an opinion of law, legal services or assistance in a legal matter; and (4) The privilege has been claimed and has not been waived by the client.
Furthermore, Whelan said that the first three prongs of this test “must be proven by the agency, and if this is successfully done, the burden then shifts to the requester to show that the privilege has not been waived.”
“In the case sub judice, the Borough established that the Borough was a client of attorney Kelley Hodges and the law firm of Fox Rothschild LLP, that attorney Hodges is a member of the bar of the court and that the communication was made for the purpose of securing assistance in a legal matter, satisfying the three-prong test above,” Whelan said.
“This court find Ms. Nichols’s sworn attestation to the OOR stating that she reviewed the report and that it contained unredacted facts regarding the incident and redacted recommendations and legal conclusions, i.e., protected communications, to be credible. This court finds that Sharon Hill Borough's denial of petitioner’s request for records protected under the attorney-client privilege was justified in this case.”
Last November, the three former Sharon Hill police officers involved in the shooting, Brian Devany, Sean Dolan and Devon Smith, each pled guilty to 10 counts of reckless endangerment in connection to the shooting, with each count carrying a maximum sentence of two years.
Just one week after Whelan’s ruling, on May 5, the trio were sentenced to 11 months of house arrest and five years of probation in a Delaware County court.
UPDATE
Kennedy filed a notice of intention to appeal Whelan’s ruling, on May 31.
“Notice is hereby given that Colleen Kennedy, plaintiff above-named, appeals to the Commonwealth Court of Pennsylvania from the judgment of the final determination of the Pennsylvania Office of Open Records, by Judge John J. Whelan of the Delaware County Court of Common Pleas,” the appeal notice stated.
The petitioner is representing herself in this matter.
The respondent is represented by Kailie Melchior and Colleen J. Marsini of Kilkenny Law, in Norristown.
Delaware County Court of Common Pleas case CV-2022-009083
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com