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.