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[W] Office of the Governor v. Mark Scolforo

June 7, 2012; withdrawn July 25, 2012

OFFICE OF THE GOVERNOR, PETITIONER
v.
MARK SCOLFORO, RESPONDENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: December 14, 2011

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE COHN JUBELIRER*fn1

The Office of Governor (Governor‟s Office) petitions for review of the Final Determination of the Office of Open Records (OOR) granting access to the Governor‟s schedule from January 18, 2011 to February 4, 2011 (Calendars), without redactions, as requested by Mark Scolforo*fn2 (Requestor) pursuant to the Right-to- Know Law (RTKL).*fn3 The Governor‟s Office asserts it properly redacted entries on the Calendars, such as the subject of internal meetings, pursuant to Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10) (the predecisional deliberative exception), and the deliberative process privilege.*fn4

Requestor submitted a request, pursuant to the RTKL, to the Governor‟s Office for the Governor‟s Calendars and emails. (Right-to-Know Request (Request), R.R. at 6a.) Specifically, Requestor sought "copies of Gov. Tom Corbett‟s schedule from inauguration day until the date when this request is fulfilled" and "all emails sent by the [G]governor since Jan. 18, 2011" (Emails). (Request, R.R. at 6a.) After invoking a 30-day extension, the Governor‟s Office granted, in part, and denied, in part, the Request. The Governor‟s Office provided some records it deemed responsive to the Request at no charge, but withheld what it deemed "non-public information." (Right- to-Know Response (Response) at 1-2, R.R. at 8a-9a.) The Governor‟s Office explained that it redacted one personal telephone number from the produced Emails pursuant to Section 708(b)(6)(i) of the RTKL, 65 P.S. §67.708(b)(6)(i), as personal identification information. (Response at 1, R.R. at 8a.) The Governor‟s Office further explained that it did not produce "E-mails that reflected internal predecisional deliberations" pursuant to Section 708(b)(10) and the executive and deliberative privileges. (Response at 1, R.R. at 8a.) Finally, the Governor‟s Office redacted from the Calendars any information that:

(1) reflected internal predecisional deliberations pursuant to [Section 708(b)(10)] and the executive privilege and deliberative privilege[,] [Sections 102 and 305(a),] 65 P.S. §§ 67.102, [67.]305(a), such as the subject of meetings;

(2) is exempt under the personal security exemption, [Section 708(b)(1)(ii)], 65 P.S. § 67.708(b)(1)(ii), such as the location of the Governor‟s travel lodging or travel patterns;

(3) is exempt as a personal telephone number, [pursuant to Section 708(b)(6)(i)], 65 P.S. § 67.708(b)(6)(i); and

(4) is not a record of the agency, such as personal[,] social or medical appointments.

(Response at 1-2, R.R. at 8a-9a.) Overall, the Governor‟s Office withheld 17 Emails in their entirety, redacted a telephone number from one Email, and redacted 28 entries on the Calendars. (Final Determination at 8, R.R. at 116a.) The Governor‟s

Office did not redact from the Calendar entries the names of individuals who attended the meetings, or the dates, times and places of the meetings.

Requestor appealed to the OOR challenging the application of the stated exceptions and privileges to the Request. (OOR Appeal at 1-2, R.R. at 37a-38a.) The OOR permitted both parties to supplement the record. The Governor‟s Office submitted notarized affidavits signed by Open Records Officer Michael Downing and Corporal Bruce George of the Pennsylvania State Police to support the grounds set forth in its Response, along with exemption indices related to all records redacted or withheld. (Governor‟s Office Letter (March 23, 2011), R.R. at 70a-93a.) The affidavits accompanied the Governor‟s Deputy General Counsel‟s position statement outlining the asserted exceptions. (Governor‟s Office Letter (March 23, 2011) at 1-7 and Appendices B and C, R.R. at 70a-76a, 88a-93a.) Therein, the Governor‟s Office requested a hearing should the OOR need any additional information. (Governor‟s Office Letter (March 23, 2011) at 7, R.R. at 76a.) The OOR denied the Request on April 5, 2011, stating it could not hold a hearing based on "a finding that sufficient evidence was not supplied." (Final Determination at 3, R.R. at 111a (internal citation omitted).)

The OOR issued its Final Determination denying the appeal as to the Emails and granting access, without redactions pursuant to Section 708(b)(10), to the Calendars. (Final Determination at 1-13, R.R. at 109a-21a.) Without considering the Affidavit of Open Records Officer Michael Downing (Affidavit), the OOR determined that the Governor‟s Office could not redact the subject matter of internal meetings for discussion on the Calendars under the predecisional deliberative exception in Section 708(b)(10) of the RTKL. (Final Determination at 8-10, R.R. at 116a-18a.) Specifically, the OOR held as a matter of law that: the factual topic of a meeting with the Governor is facially not "deliberative" in character as such a notation does not, in itself, reveal the actual deliberations. While deliberations themselves may be protected, a record showing when such deliberations are scheduled are not protected under [Section 708(b)(10)]. This holding comports with the underlying purpose of the RTKL "to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling [v. Office of Open Records, 990 A.2d 813,] 824 [(Pa. Cmwlth. 2010) (en banc), petition for allowance of appeal granted in part, 609 Pa. 265, 15 A.3d 427 (2011)]. The OOR finds that the general topics discussed by an elected public official in the course of fulfilling his or her public responsibilities are the type of information that the General Assembly intended to be subject to public access. While the deliberations themselves may be withheld under [Section 708(b)(10)], this narrow exemption does not extend to shield the subject matter of scheduled discussions from public release.

(Final Determination at 9-10, R.R. at 117a-18a.) Finally, the OOR determined that the executive privilege did not apply "to prevent access to the responsive [C]alendar entries." (Final Determination at 12, R.R. at 120a.) The OOR, thus, directed the Governor‟s Office to provide the requested Calendars, without redactions, for all information withheld on the basis of Section 708(b)(10) and/or privilege.*fn5 (Final Determination at 13, R.R. at 121a.) The Governor‟s Office timely filed a Petition for Review with this Court.*fn6

In support of this appeal, the Governor‟s Office argues that the OOR erred by holding, as a matter of law, that it is not possible for the subject matter of meetings on the Governor‟s Calendar to reflect predecisional deliberations under Section 708(b)(10). The Governor‟s Office argues that the subject matter of internal meetings on the Calendars are records that reflect internal predecisional deliberations; therefore, this information is exempt from disclosure pursuant to Section 708(b)(10) of the RTKL and the deliberative process privilege pursuant to Section 102 of the RTKL.*fn7 The Governor‟s Office contends further that the OOR erred by determining that the factual topic of a meeting is facially not deliberative in character because notations showing when an event is scheduled cannot, in itself, reveal the actual deliberations. (Governor‟s Office Br. at 12.) The Governor‟s Office emphasizes that the withheld information was not a list of general topics discussed by the Governor. The disclosure sought was the subject of the meeting in the context of the identities of internal participants who were chosen to be part of the deliberations, which were disclosed, as well as the time, date, and place of those deliberations, which was also disclosed. In short, the Governor‟s Office argues that the OOR erred by requiring that the protected information reveal the deliberations because Section 708(b)(10) only requires that those deliberations be reflected, not revealed or described.

In response, Requestor argues that all exemptions from disclosure must be narrowly construed. Requestor contends that the subject matter of internal meetings on the Calendars are not generally exempt from disclosure as reflecting internal predecisional deliberations pursuant to Section 708(b)(10). The fact that the RTKL utilizes the term reflect is of no moment as the term reveal is an appropriate synonym. Requestor contends that the Governor‟s Office has simply redacted all of the notations of the subject matter of internal meetings without any attempt to explain the separate basis for each redaction. Finally, Requestor contends that the subject matter of internal meetings on the Governor‟s Calendars do not reflect or show the actual advice he was given at those meetings; therefore, they are not protected even if the Governor‟s Office had met its burden under the RTKL.

The predecisional deliberative exception set forth in Section 708(b)(10)(i) codifies the deliberative process privilege. Section 708(b)(10)(i) exempts from disclosure:

(10)(i) A record that reflects:

(A) The internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations.

(B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation.

65 P.S. § 67.708(b)(10)(i). "According to the language of Section 708(b)(10)(i), protected records must be predecisional and deliberative." Kaplin v. Lower Merion Township, 19 A.3d 1209, 1214 (Pa. Cmwlth.), petition for allowance of appeal denied, ___ Pa. ___, 29 A.3d 798 (2011).*fn8 Pursuant to Section 708(a)(1), "[t]he burden of proving that a record of a Commonwealth agency . . . is exempt from public access shall be on the ...


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