The Commonwealth Court recently instructed that all evidence supporting one’s RTKL arguments must be presented to the Office of Open Records, and appellants cannot supplement the record with additional evidence on appeal. In Mission Pennsylvania, LLC v. McKelvey, et al., (Cmwlth. Ct. June 4, 2019), the court addressed requests for copies of applications submitted to the Department of Health under PA’s medical marijuana law.

Key Takeaways

  • All evidence and arguments regarding the disputed RTKL issues must be presented to the OOR and will not be permitted to be supplemented for the first time on appeal
  • To allow additional evidence for the first time on appeal would encourage dilatory tactics and subverts the goal of the RTKL to provide expedient access to public records.
  • The court also explained the 6 factors considered to determine whether data deserves “trade secret status” protection pursuant to the RTKL.
  • The type of confidential and privileged commercial or financial information that may be an exception under the RTKL was also analyzed by the court.
  • On an issue somewhat unique to the PA medical marijuana law, the court explained the details about the physical security systems of a building that may be exempted under the RTKL

A recent decision by the PA Office of Open Records (OOR) is noteworthy for its explanation of the good faith duty of agencies to search for responsive records. The case of Brady v. Borough of Wernersville, OOR, Docket No.: AP 2019-0453 (May 22, 2019), granted an appeal from the denial of requested documents by the Borough, in which the Borough asserted, by affidavit, that no additional responsive records existed.

Brief Background:

This matter involved a request to the Borough seeking 12 categories of public records regarding specific road work. Although the Borough partially denied the request, they provided some records, but also argued that no additional records existed within its possession, custody or control.

On appeal, the Borough submitted an affidavit asserting that no additional responsive records existed. The Requester submitted a statement asserting that the Borough had not explained the basis for its denial, and also explained that the records produced were incomplete.  The Requester provided reasons why the requested records should exist.

Legal Analysis:

The Final Determination on appeal by the OOR explained the public policy rationale underpinning the Right to Know Law, including that one of its purposes is to scrutinize the actions of public officials and make public officials accountable for their actions.

Moreover, the decision instructed that records in the possession of a local agency are presumed public unless they are exempt under the RTKL or other law, or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305.  An agency must assess whether a requested record is within its possession, custody or control, and must respond within five business days.  65 P.S. § 67.901.  In addition, the state agency bears the burden of proving the applicability of any cited exemptions relied on to exclude production. See 65 P.S. § 67.708(b).

Burden of Proof:

The decision also recited the truism that: “The burden of proving a record does not exist . . . is placed on the agency responding to the Right-To-Know request.” (citing Hodges v. PA. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011)).

Duty to Conduct Good Faith Search:

The decision emphasized the obligation of an agency to “make a good faith effort to determine if . . .the agency has possession, custody or control of the record.” See 65 P.S. § 67.901.  Although the RTKL does not define the term “good faith effort,” the Commonwealth Court has explained that the duty of an Open Records Officer to conduct a good faith search, includes the duty:

“to advise all custodians of potentially responsive records about the request, and to obtain all potentially responsive records from those in possession . . .. When records are not in an agency’s physical possession, an Open Records Officer has a duty to contact the agencies within its control, including third-party contractors . . ..  After obtaining potentially responsive records, an agency has the duty to review the records and assess their public nature under . . . the RTKL.”

Uniontown Newspapers, Inc. v. PA Dep’t of Corr., 185 A.3d 1161, 1171-72 (Pa. Commw. Ct. 2018).

Moreover, in connection with what constitutes a:

“good faith effort, another Commonwealth Court decision explained the ‘duty to inquire of agency personnel as to whether he or she was in the possession, custody, or control of any of the . . . requested emails that could be deemed public and, if so, whether the emails were, in fact, public and subject to disclosure or exemption from access by Requester.’”

Mollick v. Twp. of Worcester, 32 A.3d 859, 875, (Pa. Commw. Ct. 2011) (citations omitted).

The OOR noted that conclusory affidavits, standing alone, will not satisfy the burden of proof an agency must sustain to show that a Requester may be denied access to records under the RTKL. See Slip op. at n.2.

Rationale of the Decision:

The decision reasoned that the Borough: “has not presented competent evidence detailing the steps of the search, the types of records searched and what Borough offices, Borough personnel or relevant third-party contractors were contacted to determine the existence of responsive records.” Id. at 6.

The court added that the affidavit by the Borough did not indicate whether a search of the requested records was conducted, and therefore, the OOR concluded that the Borough cannot be said to have conducted a good faith search reasonably calculated to identify the requested records. (citations omitted.)

Conclusion:

In sum, the appeal was granted, and the Borough was required to conduct a good faith search and provide all responsive records within 30 days. It was also clarified that within 30 days of the mailing date of the Final Determination, any party may appeal to the Berks County Court of Common Pleas. See 65 P.S. § 67.1302(a).

Pennsylvania’s Commonwealth Court recently addressed an issue of first impression regarding the exception under the RTKL for information shared between an agency and an entity with whom the agency contracts that is “internal to the agency” for purposes of qualifying for the “internal, predecisional deliberations” exception of a state agency, pursuant to Section 708(b)(10)(i) of the RTKL.  In Finnerty v. Pennsylvania Department of Community and Economic Development, 2019 WL 1797668 (Pa Cmwlth. April 25, 2019), one of Pennsylvania’s two intermediate appellate courts upheld a decision by the OOR which recognized as qualifying for the internal, predecisional deliberations exception, communications between the state agency and subcontractors with whom the agency had a contractual relationship.

Brief Background:

This matter originated with a request for records exchanged among the Pennsylvania Department of Community and Economic Development and a consultant with whom it contracted for purposes of assisting with the recovery plan for the City of Chester.  That consulting firm, EConsult also subcontracted with a law firm and a financial advisory firm.  The requester sought records related to the work that EConsult was doing in connection with its efforts to help the City of Chester try to sell the Chester Water Authority (CWA) to a third-party in order to assist with the financial problems of the City.

CWA was not aware of the full-extent of these plans by others to try to sell it.  (There were many issues about whether the City had the right to sell CWA.)

Highlights of Court’s Reasoning:

The court acknowledged that this was an issue of first impression, and began its analysis by quoting the statutory provisions that exempt from disclosure internal, predecisional deliberations of an agency, its members, employees or officials, including those relating to budget recommendations, proposed policy or course of action or any research used in the predecisional deliberations.  See 65 P.S. § 67.708(b)(10)(i).

The court explained that the agency bears the burden of proof by a preponderance of the evidence and must show: “(1) the information is internal to the agency; (2) the information is deliberative in character; and (3) the information is prior to a related decision, and thus predecisional.”  (citing McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014)).

The court recognized that there was no prior case law on this issue, and it focused on the intent of the RTKL, which is designed to promote access to official government information and to allow for scrutiny of the actions of public officials.  The court held that it benefits the public to allow government agencies to engage in the candid exchange of ideas.

Key Findings:

The court found that a contractual relationship existed among the department and its consultant, as well as the subcontractors to the consultant whose documents were sought.

The court explained its finding that the contractual relationship among the parties made their records internal to the agency, including the predecisional, deliberative information that was exchanged between the department and its consultant and subcontractors.  The court explained its view that its conclusion supported the ability of agencies to hire outside experts to address problems beyond the expertise of the agency, and that administrative decision making is facilitated when agency officials and expert outside contractors can have a frank exchange of ideas and opinions

The court also relied for its findings on a decision from the United States Court of Appeals for the District of Columbia regarding its interpretation of a Freedom of Information Act request, based on the theory that case law interpreting FOIA is helpful as the federal counterpart to the RTKL.  See National Institute of Military Justice v. U.S. Department of Justice, 512 F.3d 677, 678-79 (D.C. Cir. 2008).

Conclusion The court upheld the OOR’s Final Determination, concluding that the Department properly invoked the internal, predecisional deliberation exception, to withhold certain of the requested records.

 

A noteworthy recent decision involves a demand for records submitted to the Pennsylvania House of Representatives. That request was denied and the Requester appealed to the Office of Open Records (OOR).

The OOR in Monighan v. Pennsylvania House of Representatives, OOR, Docket No.:  AP 2019-0585 (April 18, 2019), explained that pursuant to the RTKL, legislative agencies such as the House of Representatives are not subject to the jurisdiction of the OOR. See 65 P.S. § 67.503(a).  Rather, appeals involving a legislative agency are heard by an appeals officer designated by the legislative agency.  Accordingly, the appeal in this matter was transferred to the Appeals Officer for the House of Representatives.

A recent decision by the PA Office of Open Records is notable because of its reliance on the right to privacy contained in the Pennsylvania Constitution to prevent the requesting party from obtaining records that might otherwise be obtainable based on the Right to Know Law.  See Feliciano v. Philadelphia District Attorney’s Office, PA OOR, Docket No. AP 2019-0275 (April 1, 2019).

Brief Background:

This Final Determination involved a request under the PA RTKL for information related to a former Assistant District Attorney in Philadelphia.  The D.A.’s office denied the request that sought personnel records.  Upon appeal, the Office of Open Records (OOR) granted the appeal in part and denied it in part.

Key Takeaways:

·     The most noteworthy part of this opinion is the recognition based on the Pennsylvania State Constitution that the right to privacy trumps the Pennsylvania Right to Know Law in certain instances.  Specifically, the Pennsylvania State Constitution, although it does not specifically use the word “privacy” in the section cited, has been interpreted by the Pennsylvania Supreme Court to protect a right to privacy for personal data and to prevent the production of what would otherwise be public records that would be produced under the Pennsylvania PA RTKL.  See Pa. Const. Art. I, § 1.

·     For example, the Pennsylvania Supreme Court has ruled that the constitutional right to privacy protects the disclosure of personal phone numbers and home addresses, as well as social security numbers of state employees.  Generally, the court requires a balancing test to balance the right to privacy for one’s personal information with the public interest in disclosure.  See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

·     The OOR also explained that the RTKL is not superseded by the Pennsylvania Inspection of Employment Records Law (“IERL”).  The IERL addresses the right of employees to certain information in their personnel file held by an employer.  That law does not bar disclosure under the RTKL.

·     Section 708(b)(7) of the RTKL does exempt from disclosure certain records regarding a state employee, such as performance ratings or reviews and written criticisms of an employee, as well as information relating to discharge–with the exception of the final action of an agency that results in demotion or discharge.  See 65 P.S. §§ 67. 708(b)(7) (vi) – (viii).

·     This final determination also recognizes that Section 708(b)(6) of the RTKL exempts personal information such as home phone numbers and personal email addresses and other confidential personal identification.  This statutory protection overlaps some of the constitutional privacy protections.

·     The Pennsylvania Supreme Court did not expressly define all of the potential types of “personal information” subject to the balancing test that protects certain types of information–but has recognized specific examples of personal data for which privacy concerns outweigh the public interest, such as the right not to disclose personal telephone numbers, social security numbers, and home addresses.

In County of Berks v. Pennsylvania Office of Open Records, 2019 WL 1076828 (Pa. Cmwlth. Ct. Jan. 3, 2019), the court explained that it is well established that OOR and its appeals officers have authority to order an in camera review of documents that have been withheld or redacted where, in the appeals’ officers’ judgment, in camera review is necessary to develop an adequate record to rule on an agency’s claim of privilege or exemption.

Moreover, the court explained that this statutory basis for in camera review by OOR does not intrude upon the Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law under Article V, Section 10(c) of the Pennsylvania Constitution.  Nor, the court explained, does the exclusive authority of the Supreme Court to regulate the practice of law deprive OOR of subject matter jurisdiction to make a ruling about whether a document submitted for in camera review is protected by the attorney/client privilege, attorney work product doctrine, or Rule of Professional Conduct 1.6(a), which prohibits a lawyer from disclosing confidential information regarding the representation of a client without the informed consent of the client. Id. at * 9.  There was no merit to the argument that OOR did not have the authority to review privileged data in camera.

The court also rejected the argument by the County of Berks that an appeal of a Final Determination by OOR should not be considered by the Court of Common Pleas, which would be the ordinary appeal process, and that the Commonwealth Court should assume original jurisdiction and bypass the traditional appeal process for an OOR determination. The Commonwealth Court rejected the county’s argument that the statutory remedy of an appeal of an OOR Final Determination would be inadequate because the requested declaratory relief, according to the county, would prevent duplicative litigation in which counties would raise the argument that they are exempted from the RTKL based on The County Code.

The court explained that during the pendency of the appeal, new legislation was passed to amend Section 406 of The County Code by creating a new section as follows:

“Except as otherwise provided by this Act, records of county offices shall be open for inspection subject to the rules and regulations provided in the Act of February 14, 2008 . . . known as the ‘Right-to-Know-Law.’”

That new legislation now makes it beyond dispute that the RTKL will apply to records’ requests to counties from December 23, 2018 onward.

Thus, because the County conceded that the RTKL applies to records’ requests to counties after the new legislation went into effect, and that declaratory relief that they sought was limited to requests prior to that new Act, the court explained that it was not necessary for it to exercise its original jurisdiction.

The Office of Open Records (“OOR”) recently issued a decision in which it denied a request for unredacted invoices of an attorney for a school district based on the attorney-client privilege. In the matter of Campbell v. Pennsbury School District, PA OOR, Docket No.: AP 2018-2171 (Feb. 14, 2019), the OOR upheld a decision of the school district to redact legal descriptions from invoices requested.

Important Legal Principles in this Decision:

Key takeaways in this decision that should have widespread application can most efficiently be highlighted through the use of the following bullet points.

  • The Pennsylvania Right to Know Law (RTKL) allows the use of the attorney-client privilege as a basis for state agencies to deny requests for records or to redact privileged information, even though the burden of proof that such privilege applies is on the party asserting the privilege. See RTKL Section 708 and Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011).
  • The RTKL defines privilege 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.” See 65 P.S. Section 67.102.
  • In order for the attorney-privilege to apply, an agency must demonstrate that: (1) The asserted holder of the privilege is or sought to become a client; and (2) The person to whom the communication was made is a member of the bar of a court, or a subordinate; and (3) 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, not for the purpose of committing a crime or tort; and (4) The privilege has been claimed and is not waived. Slip op. at 5.
  • After an agency establishes the privilege was properly invoked under the first three prongs, the party challenging invocation of the privilege must prove waiver under the fourth prong. Id. However, simply invoking the privilege does not excuse the agency from the burden it must meet to withhold records. Id.
  • The Pennsylvania Supreme Court has held that the attorney-client privilege in regard to descriptions of legal services contained within legal invoices does not turn on the category of a document such as whether it is an invoice or a fee agreement, but rather: “the relevant question is whether the content of the writing will result in disclosure of information otherwise protected by the attorney-client privilege. Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013). The Pennsylvania high court approved a “line by line analysis” for the review of an invoice to determine whether it contains privileged information. Id.

In an apparent issue of first impression, the Commonwealth Court granted attorneys’ fees in connection with an enforcement action under the RTKL. In Uniontown Newspapers Inc. v. Pennsylvania Department of Corrections, 197 A.3d 825 (Pa. Cmwlth. 2018), the court granted attorneys’ fees to a newspaper in connection with fees incurred to enforce a decision of the OOR requiring the Department of Corrections (DOC) to produce the requested documents.

Procedural Background:

The Commonwealth Court previously issued an opinion in this matter finding bad faith on the part of the DOC under the RTKL. See Uniontown Newspapers Inc .v. Pennsylvania Department of Corrections, 185 A.3d 1161 (Pa. Cmwlth. 2018).  Subsequent to that decision, the requester submitted a notice of intent to seek attorneys’ fees under the RTKL, and submitted legal invoices with its fee petition.  The court held a hearing requesting evidence of what constitutes “reasonable attorneys’ fee” under the RTKL.

The court explained that the requester enlisted the ancillary appellate jurisdiction of the Commonwealth Court to enforce a final determination in its favor by the OOR.

Legal Basis for Award of Attorneys’ Fees:

The court provided an extensive analysis under Section 1304(a) of the RTKL, 65 P.S. § 67.1304(a), which allows a court to award attorneys’ fees if the court reverses a final determination or grants access, when either: “(1) an agency acted with willful or wanton disregard of the rights of access in bad faith; or (2) an agency’s denial was not based on a reasonable interpretation of the law.” See Section 1304(a).

The court found that the DOC, the receiving agency, denied access willfully and with knowing disregard of the rights to access of the requester, and otherwise acted in bad faith as explained in the court’s prior opinion finding bad faith. The requester sought enforcement of the reversal of the DOC’s denial by the OOR, which qualifies it for an award of reasonable attorneys’ fees. See footnote 8 and accompanying text.

Reasonableness of Attorneys’ Fees:

The court explained that a determination of the reasonableness of attorneys’ fees requires that the court review the amount of work done, the character of services rendered, the difficulty of the problem involved, and the professional skill and standing of the attorney. The court also considered the following factors:  the importance of the litigation; the amount of money or value of the rights involved; the degree of responsibility incurred; the results counsel obtained; and the client’s ability to pay a reasonable fee for the services rendered.

The court found that there was no requirement that it review each invoice on a line-by-line basis.

The court held that the standard for recovery under Section 1304(a) of the RTKL is not to award all attorneys’ fees and costs incurred and paid, but rather only reasonable attorneys’ fees. The court was critical of the paucity of evidence in the record as to the reasonableness of the amount of fees–other than the affidavits from the attorneys and the testimony of the client.  Although not explicitly stated, the implication in the court’s opinion was that the court would have preferred additional testimony or affidavits from a third-party qualified to opine about the reasonableness of fees. See footnote 11 and accompanying text.

The court also explained that fees would only be awarded on aspects of the litigation on which the requester prevailed.  Ultimately, after reviewing the fees sought, the court granted approximately $118,000 in attorneys’ fees, as compared to the request for over $200,000 in fees.

A recent Commonwealth Court decision held that the OOR may conduct an in camera review of records sua sponte even if none of the parties before it makes such a request.  The court found that the Pennsylvania RTKL gave the ORR and its appeals officers the authority to conduct such a review. See County of Berks v. PA Office of Open Records, et al., No. 170 M.D. 2018 (Pa. Cmwlth. Jan. 3, 2019).

A recent decision of the Commonwealth Court of Pennsylvania upheld a determination by the Office of Open Records, and concluded that neither the Pennsylvania Department of Health nor the private company involved had established that the withheld records were exempt as confidential proprietary information under Section 708(b)(11) of the RTKL. See Broomall Operating Company, LP v. Murray, Pa. Cmwlth Ct., No. 1685 C.S. 2017 (Dec. 14, 2018).

Why This Case is Noteworthy: This case is noteworthy for providing a rationale and supporting case law for the provision in the RTKL that in order for confidential proprietary information, including trade secrets, to be exempt from disclosure, several requirements must be satisfied.

Brief Background:

This case involved a request by an attorney for information regarding the sale of a nursing home that he was suing in two personal injury suits. He sought records regarding the applications to the Pennsylvania Department of Health (DOH) for a license for the new management of the facility, and information about the new owners of the facility, including the related submissions to the DOH.  The DOH granted in part and denied in part the request, and redacted documents that were provided.  The OOR ruled that the DOH improperly withheld documents that were neither confidential nor proprietary, and the DOH failed to meet its burden to establish that the records were exempt from disclosure or constituted financial records to which a Section 708(b)(11) exemption would apply.

The OOR issued its final determination in October 2017. The OOR decision was appealed directly to the Commonwealth Court.

Legal Analysis:

The court began its analysis with an overview of the RTKL including its purpose to empower citizens by providing them access to information regarding the activities of government. Slip op. at 6.  The court also explained that exceptions to disclosure of public records must be narrowly construed. Id. at 7.  The standard of review of a final determination of the OOR is de novo and the scope of review by the court is plenary.

Importantly, the court observed that records in the possession of a Commonwealth agency are presumed to be public unless they are exempt under Section 708 of the RTKL, protected by a privilege, or exempt from disclosure under any other federal or state law or judicial order or decree. See Section 305(a).  Slip op. at 11.  The presumption is that government records are public and the government agency has the burden to prove that an exception to the duty to disclose applies. Id. at 11-12.

Regarding an alleged exemption for trade secrets and “confidential proprietary information” of a private company that might be in the possession of an agency, the court described the prerequisites that must be satisfied in order to successful assert that exemption. See Section 708(b)(11).

Section 102(ii) defines “confidential proprietary information.” The court explained the criteria that must be satisfied in order for the court to find that the disclosure of such confidential information would “cause substantial harm to the competitive position of the person from whom the information was obtained.”  Slip op. at 13.

Reasoning of the Court:

The court reasoned that in this case the only support for the exemption presented was a “conclusory statement” that could not satisfy the low burden to establish that the documents in question were exempt from disclosure as confidential proprietary information. An affidavit was submitted that merely pointed out that the document in question was unique–but it did not establish whether the information in the document was confidential for purposes of the exemption based on the criteria established by the statute and by case law. Id. at 16.

The court cited to other cases where an affidavit was presented but because it was not detailed and merely conclusory, it was not sufficient to prove that the requested records were exempt from disclosure. Thus, the decision of the OOR was affirmed.

Bottom Line: The prerequisites and nuances that must be addressed in order to qualify for a confidentiality exemption will not be satisfied by a conclusory affidavit.