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.