IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Dages, Appellant v. Carbon County
AND NOW this 7th day of June, 2012, IT IS HEREBY ORDERED that the above captioned opinion filed March 20, 2012, shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.
SUBMITTED: December 16, 2011
Robert Dages (Dages) appeals pro se from the order of the Court of Common Pleas of Carbon County that affirmed the final determination of the Office of Open Records (OOR) that Carbon County (County) was not required to disclose the information requested by Dages. The issue in this appeal is whether "case law," referred to by the County Commissioner as authorizing the County's economic development project, known as the "Packerton Business Park Project" (Project), is protected from public disclosure by the attorney-client privilege and the attorney's work-product privilege or doctrine, under the Right-to-Know Law (Law), Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 - 67.3104.
The record reveals the following relevant facts. On September 23, 2010, Dages sent the chairperson of the County Board of Commissioners (Board) a letter, stating that the Commissioners had no authority to act as a developer on the Project and to compete with private business. Dages and other "Constitutionalists" demanded that the chairperson identify "case law" that he referred to at the previous Commissioners' meetings as authorizing the Project. Reproduced Record (R.R.) at 21. Dages asserted that "[c]ase law . is a created marketing tool used . by elitists . to impose ideas which avoid the rule of Constitution and serve a very limited constituency." Id.
After the Board's chairperson denied his demand, Dages submitted a "Standard Right-to-Know Request Form" on November 18, 2010, requesting disclosure of the case law previously mentioned by the chairperson. The County's right-to-know officer denied Dages' request, stating that the requested information was not a public record subject to disclosure because it was protected by the attorney-client privilege and the privilege of the attorney's work-product or work in progress. The officer also based the denial on the exemptions set forth in Section 708(b)(10)(i)(A) of the Law, 65 P.S. § 67.708(b)(10)(i)(A) (predecisional deliberations), Section 708(b)(17)(ii) (non-criminal investigative materials, notes, correspondence and reports) and Section 708(b)(17)(iv) (confidential information). Dages appealed the denial to the OOR.
Before the OOR, neither party requested a hearing. The appeals officer invited the County to file an affidavit setting forth facts relied on by the County in denying Dages' request. The County then submitted affidavits of the Board's chairperson, William O'Gurek, and the County solicitor, Michael L. Ozalas, Esquire, in which they made the following statements under a penalty of perjury. In June/July 2010, the Board's chairperson directed the County solicitor to perform legal research regarding the Project. The solicitor thereafter provided the chairperson his legal research result. The chairperson and the solicitor communicated confidentially in the course of seeking and providing the legal advice. They stated that the legal research was protected from disclosure by the attorney-client privilege and the privilege of the attorney's work-product or work in progress, which had not been waived.
In the final determination, the appeals officer determined that the sworn affidavits submitted by the County established that the requested case law was protected by the attorney-client privilege from disclosure. The trial court affirmed the OOR's final determination, concluding that the information was protected by the attorney-client privilege and also by the attorney's work-product privilege or doctrine. Dages' appeal to this Court followed.*fn1
Dages challenges the OOR's determination that the requested "case law" was protected by the attorney-client privilege from disclosure and the trial court's conclusion that such information was also protected by the attorney's work-product privilege. Dages argues that the OOR and the trial court improperly relied on the self-serving and misleading ...