The Delaware County Court of Common Pleas recently affirmed a Determination of the Office of Open Records (OOR) to withhold documents that the court held were subject to the attorney/client privilege and the work-product doctrine.  See Cortes v. Middletown Township, et al., 110 Delaware County Reports 35 (Jan. 25, 2023).

Brief Background Facts:

This case involves multiple requests under the Pennsylvania Right to Know Law seeking documents from Middletown Township about communications between the township and companies constructing a pipeline through the township.  The companies whose communications with the township were sought had entered into an agreement pursuant to the Common Interest Doctrine to coordinate their resources to protect their common interests.

Legal Analysis:

The court explained the Common Interest Doctrine and how it applied to extend the attorney-client privilege with respect to the records that were withheld by the township.  The court referred to Pennsylvania cases upholding the Common Interest Doctrine where the parties share a substantially similar legal interest.  The Common Interest Doctrine allows various parties to retain separate legal counsel while at the same time protecting their common interests.  The four elements that need to be shown by a party asserting the doctrine were discussed in Pennsylvania Public Utility Commission v. Sunrise Energy LLC, 177 A.3d 348, 445-46 (Pa. Cmwlth 2018).

The court also explained why the work-product doctrine was an independent basis for certain records to be withheld.  The court provided citations to extensive authority explaining that well-established doctrine.