The opinion of the court was delivered by: Judge McGINLEY
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
John Scott (Scott) challenges the order of the Office of Open Records (OOR) which affirmed in part and denied in part Scott's request for access to certain records of the Delaware Valley Regional Planning Commission (DVRPC). The OOR provided Scott with access to eight of the thirty-eight records he requested.
The DVRPC also appeals and asserts that the OOR erred when it determined it had jurisdiction over the DVRPC.*fn1
On April 1, 2011, Scott requested certain email records from the DVRPC. He sought all email records in the possession of the DVRPC which were sent to or from certain email addresses.
On April 4, 2011, DVRPC denied the entire request as overly broad and claimed that all of the records were exempt as pre-decisional deliberations under Section 708(b)(10) of the Right to Know Law (Law),*fn2 65 P.S.
On April 11, 2011, Scott appealed to the OOR and challenged the legitimacy of the claimed exemption. In accordance with Section IV(D) of the OOR Interim Guidelines, the OOR directed the DVRPC to provide all records for an in camera inspection. On June 9, 2011, the DVRPC identified thirty-eight withheld records through an In Camera Inspection Index, and provided a notarized affidavit regarding the truthfulness of the provided records. The DVRPC provided Scott with a copy of the Index. On June 9, 2011, Scott objected to the wording of the DVRPC letter and claimed it misinterpreted OOR's request for more information. Scott requested a hearing. On June 16, 2011, the OOR provided a certificate of nondisclosure to the DVRPC and sought additional information regarding the asserted exemption. On June 23, 2011, the DVRPC submitted an additional affidavit and an accompanying index identifying the senders, recipients, and the affiliations of individuals. On June 28, 2011, the OOR denied the request for a hearing.
In its final determination, the OOR granted Scott's appeal in part and denied it in part. The OOR determined:
While the issue of whether the Commission [DVRPC] should be considered an agency, is a jurisdictional question, the OOR has previously determined that the
Commission is an [sic] Commonwealth agency subject to the RTKL [Law] in Iverson v. DVRPC . . . . As such, the OOR need not address the Commission's assertions regarding its status as a non-agency here.
The RTKL [Law] provides that records reflecting the 'internal, predecisional deliberations' of an agency may be withheld from public access. . . . In order for this exemption to apply, three elements must be satisfied: 1)
the deliberations reflected are 'internal' to the agency; 2) the deliberations reflected are predecisional, i.e., before a decision on an action; and 3) the contents are deliberative in character, i.e., pertaining to proposed action. . .
In the present case, the OOR conducted an in camera review of all withheld records. Based on a review of the materials provided, the Commission [DVRPC] did not establish that Records 1, 3, and 4 are 'internal' to the Commission [DVRPC]. Because the OOR finds that those records are not internal, they must be available for public access. The OOR finds that the remaining records are internal to the Commission [DVRPC].
The following records, however, do not meet either of the remaining two elements: Records 17, 18, 25, and 27. As a result, the OOR finds that these records are subject to public access in their entirety. Additionally, the OOR finds that the portion of Record 34 sent by Richard Weidner is subject to public access but that the remainder may be redacted pursuant to 65 P.S. §67.706.
As an in camera review of the remaining records reveals that each of these records meet all three elements as required by 65 P.S. §67.708(b)(10). As a result, the OOR finds that the Commission has established that the remaining records may be withheld from public access.
Final Determination, July 20, 2011, at 5-6; Reproduced Record (R.R.) at 82a-84a.
Both parties appealed to this Court.
Scott contends that the OOR erred when it found communications to and from unpaid volunteer citizens of the DVRPC Regional Citizen's Committee (RCC), a group specifically designed to measure public input, exempt from disclosure under Section 708(b)(10) of the Law, 65 P.S. §67.708(b)(10), as internal, pre-decisional deliberations, even though Section 708(b)(10) does not apply to communications with members that are not internal to the agency and Section 708(b)(10)(iv) specifically states that Section 708(b)(10) does not apply to groups designed to measure public input.
The DVRPC contends that it is not a Commonwealth agency and, consequently, is not subject to the Law. Alternatively, the DVRPC contends that if the Law applied to it, the OOR correctly determined that the records subject to Scott's petition were internal pursuant to Section 708(b)(10) of the Law.*fn3
This Court will address DVRPC's appeal first.
Initially, Scott argues that DVRPC should be collaterally estopped from arguing that it is not subject to the Law because the issue of subject matter jurisdiction was raised and fully litigated in the OOR's decision in Iverson v. Delaware Valley Regional Planning Commission, AP 2011-0572, Filed July 19, 2011, and the ...