Appeal from the Order of Commonwealth Court entered 10-06-2011 at No. 2222 CD 2010 which Affirmed in Part; Reversed in Part the Open Records Order entered 09-: 16-2010 at No. 01-2010.
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In this appeal, we consider the interaction of the attorney-client privilege and the Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104 ("RTKL"), in a case involving a journalist's request for documents relating to the legal representation of Senate Democratic Caucus employees. After review, we reaffirm the general rule that client identities are not protected by the attorney-client privilege but adopt specified exceptions to this general rule. Similarly, we affirm the Commonwealth Court's determination that general descriptions of legal services included in attorney invoices are not covered by the umbrella of the attorney-client privilege but that specific descriptions that would reveal attorney-client communications are protected. Additionally, we reverse the Commonwealth Court and overturn its decision in Signature Information Solutions, LLC. v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010), to the extent it determined that any reasons for denial not raised in the initial written denial of a RTKL request are waived and cannot be raised at a later stage of the RTKL process.*fn1
On June 22, 2010, Associated Press member Marc Levy sent two written requests to the Senate's Right to Know Officer seeking "all bills, contracts and payment records related to the hiring of any outside lawyer or law firm to represent Sen. Robert
J. Mellow beginning Jan. 1, 2009" and the same documents related to "any current or former employee of the Senate Democratic caucus beginning Jan. 1, 2009." Letters of Marc Levy, June 22, 2010 ("Request"). The requests came a few days after the media reported that federal authorities executed search warrants on Senator Mellow's home and office as part of a grand jury investigation.
The Senate Open Records Officer responded on August 3, 2010, providing
documents "relating to legal services provided to Senator Mellow or
any employee of Senator Mellow beginning 1/1/2009."*fn2
Letter of W. Russell Faber, Aug. 3, 2010 ("Written Denial").
The cover letter, however, stated that the documents had been redacted to protect portions of the documents which the Open Records Officer contended were covered by the attorney-client privilege in accordance with Section 305(b) of the RTKL, which provides that records shall not be presumed to be public records subject to disclosure if "the record is protected by a privilege." 65 P.S. § 67.305(b)(2). The Senate supplied documents relating to five clients, totaling nearly one hundred pages, many of which were invoices from various law firms reflecting the attorney or paralegal's initials, dates and hours worked, and fees charged. However, large blocks of the documents were redacted, presumably involving itemized descriptions of the work and the clients' names.
On August 11, 2010, Levy appealed the redactions to the Senate Appeals Officer, who hears RTKL appeals relating to the Senate and serves the role that the Office of Open Records ("OOR") provides for most other Commonwealth agencies. Levy asserted that the "redactions seem to apply to [the] identity of the client and, possibly, the reason for which the attorney is being hired. That information is not considered under the umbrella of a 'work product' or a 'privilege.'" Appeal Letter of Marc Levy, Aug. 11, 2010 ("Appeal Letter"). He contended that the RTKL's "intent of transparency in government is to help ensure [that] citizens can determine whether their tax money is spent lawfully." Id. He argued that redacting the client identity and the reason for the legal services "renders such a determination impossible." Id.
On August 12, 2010, the Senate Appeals Officer, who is also the Secretary of the Senate, set a timeframe for the parties to file a memorandum of law or other documentation. While the previous filings in the case were brief letters, on August 19, 2010, the Senate filed a lengthy "Senate Response to the RTK Appeal." In this filing, the Senate observed that the RTKL provides for redaction of documents under Section 706, 65 P.S. § 67.706 ("the agency shall redact from the record the information which is not subject to access"). While the Senate reasserted its claim that the redactions were necessary to protect the attorney-client privilege, it also asserted, for the first time, that some of the redacted portions were protected from disclosure due to the work product privilege, grand jury secrecy, and the criminal investigation exception of Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16).
Levy likewise responded with a lengthy letter brief. Levy emphasized that the RTKL places the burden on the Senate to prove the application of any exception. Moreover, he observed that there is a presumption of disclosure for public records, including financial documents, in the RTKL. In response to the Senate's attorney-client privilege argument, Levy contended that the rule in Pennsylvania and elsewhere provides that a client's identity and billing records are not protected unless disclosure would reveal confidential communications between the client and attorney. Levy further addressed and rejected the merits of the Senate's claims that the documents were not subject to disclosure due to the work product privilege, grand jury secrecy, and the criminal investigation exception, the merits of which are not relevant to this appeal.
On September 16, 2010, the Senate Appeals Officer made his final determination. The Officer observed that under Pennsylvania law, the party asserting the attorney-client privilege has the burden to prove that the privilege has been properly invoked. In accord with that prerequisite, the Officer concluded that the Senate had demonstrated that each of the asserted holders of the privilege sought to become a client of an attorney, communicated that to an attorney, and that all of the clients were asserting rather than waiving the privilege. The Officer, however, could not determine whether the Senate had demonstrated the other necessary criteria for attorney-client privilege: whether the communication of the client seeking the attorney's representation was made "without the presence of strangers" and "not for the purpose of committing a crime or tort."*fn3 Final Determination of Sept. 16, 2010, at 8. As a result, the Senate Appeals Officer provided the Senate with the opportunity to provide sworn affidavits or other probative evidence to address those issues but did not set a date by which the Senate had to file the ordered documents. The Officer also noted that the Senate raised additional reasons for the redactions based on the work product privilege, grand jury secrecy, and criminal investigation exceptions. He concluded, however, that the Senate failed to demonstrate the necessary factual predicate for assertion of those exceptions.
On October 15, 2010, when the Senate had not filed any additional documents, Levy filed a Petition for Review in the Commonwealth Court asking the court to reverse that portion of the Senate Appeals Officer's Final Determination in which he concluded that "portions of billing records containing the names of Senate clients and descriptions of legal services performed on their behalf are protected by the attorney-client privilege." Levy's Petition for Review at 4. Following a volley of filings seeking to strike portions of briefs and alert the Commonwealth Court to this Court's recent decision in Gillard v. AIG Insurance Co., 15 A.3d 44 (Pa. 2011)(holding that the attorney-client privilege applied to communications from attorney to client as well as from client to attorney), the Commonwealth Court entered an order instructing the Senate to file the affidavits and documents ordered in the Senate Appeals Officer's Final Determination. Additionally, the court ordered the Senate to "bring to the Court for in camera review unredacted copies of all records at issue." Commonwealth Court Order of May 31, 2011. The Commonwealth Court appointed Senior Judge Kelley as a special master to review the documents.
The Senate filed an application for clarification of the May 31st order to determine if it could satisfy the order by filing one affidavit from "a person with knowledge" or if it must file one affidavit per client.*fn4 Following the court's order approving the filing of a single affidavit, the chief counsel for the Senate Democratic Caucus filed an affidavit asserting that the redacted communications in the records of each of the five clients were made in the absence of strangers and were not made for the purpose of committing a crime or tort. He further asserted that the redactions were limited to "client identity and the purpose or reasons why various attorneys were engaged in order to protect information subject to the attorney-client privilege, the work product privilege, grand jury secrecy rules and the 'criminal investigation' exception set forth in Section 708(b)(16) of the Right-to-Know Law." Affidavit of C.J. Hafner, at 2.
Following the in camera review on June 23, 2011, Judge Kelley issued a report under seal, which was later vacated by the Commonwealth Court. In regard to client identities, Judge Kelley observed that the Senate conceded that Senator Mellow's name should not be redacted because the legal action involving him was in the public domain. The judge concluded that the issue of whether the remaining four clients' identities, whose names had not been publicly revealed, should be deemed protected by the attorney-client privilege was a question of law for the Commonwealth Court to determine.
Turning to the descriptions of legal services, Judge Kelley noted that the Senate argued that revelation of the legal descriptions would disclose legal strategy and investigation details that would reveal confidential communications between the client and the attorney. Judge Kelley agreed with the Senate but only "[t]o the extent that the documents specify the issues or laws researched by the attorneys, specific services provided and the names of individuals with whom the attorneys communicated" because that information could reveal confidential communications and litigation strategy, which is privileged. Levy v. Senate of Pennsylvania, 34 A.3d 243, 257 (Pa. Cmwlth. 2011)(Report of Special Master). Conversely, he concluded that general descriptions of legal services, such as "memo," "telephone call," or "research" were not protected by the attorney-client privilege. Judge Kelley provided a chart of the relevant documents indicating his recommendations for which redactions should remain in place to protect attorney-client privilege and which redactions should be removed.
In October, 2011, an en banc panel of the Commonwealth Court issued its decision accepting Judge Kelley's recommendations as supplemental findings and conclusions of the en banc panel. Opening its discussion with a very brief two-sentence analysis, the Commonwealth Court concluded that the Senate had waived all its alternate bases for redaction, such as attorney-work product, grand jury secrecy, and the criminal investigation exceptions, by failing to raise them in its initial Written Denial of Levy's Request, citing its decision in Signature Information, 995 A.2d 510.
Turning to the attorney-client privilege argument, the court recognized that the long-standing privilege was "in tension with the purpose of the [RTKL], which is remedial legislation designed to promote access to official government information." Levy, 34 A.3d at 248. It observed that under the RTKL, legislative records are presumed to be public records, except that a document protected by a privilege is excluded from the definition of public records. Considering the Senate's assertion of privilege, the court reiterated the general rule that client identities are not protected by the attorney-client privilege. Id. at 250-51(relying upon, inter alia, In re Seip's Estate, 30 A. 226 (Pa. 1894); Beeson v. Beeson, 9 Pa. 279, 1848 WL 5605 (Pa. 1848)). Similarly, the court determined that descriptions of legal services generally were not protected. The court, however, considered a "legal advice" or "confidential communications" exception to the general rule. While no Pennsylvania state court has applied such an exception, the Commonwealth Court noted that other courts have found one when "so much of the actual communication had already been established, that to disclose the client's name would disclose the essence of a confidential communication." Id. at 252 (quoting United States v. Liebman, 742 F.2d 807, 809 (3d Cir. 1984)).
Applying the general rule and the exception to the documents reviewed by Judge Kelley in camera, the Commonwealth Court affirmed the redaction of "specific descriptions of legal services which implicate confidential communications between the clients and the attorneys." Levy, 34 A.3d at 254. It concluded, however, that general descriptions are not protected by attorney-client privilege because they do not reveal confidential communications. Turning to client identities, the court recognized that redaction was not appropriate as to Senator Mellow, as his name was already revealed in the original document request. Considering the other four clients, the court concluded that their names were not subject to the confidential communications/legal advice exception because all references to confidential communications or legal advice had already been redacted from the invoices and other documents.
Upon the Senate's petition for allocatur, we granted review to consider three issues: (1) whether client identity is protected by the attorney-client privilege, (2) whether descriptions of legal services are protected by the attorney-client privilege, and (3) whether an agency waives any reasons for non-disclosure that were not raised in the initial written denial. All of the questions presented in this case are questions of law.
Therefore, our standard of review is de novo and our scope of review is plenary. See Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa. 2012).
II. Attorney-Client Privilege
The first two issues involve the attorney-client privilege and whether it protects client identities and descriptions of legal services from disclosure under the Right to Know Law. The RTKL is a relatively new law effective in 2009, which replaced the Right to Know Act and significantly expanded public access to governmental records, including financial records of legislative agencies such as the Senate of Pennsylvania, with the goal of promoting government transparency. See infra at 32-34, 65 P.S. § 67.303 ("A legislative agency shall provide legislative records in accordance with this act.").
The RTKL, however, specifically exempts privileged documents from
disclosure by defining public records subject to disclosure as "[a]
record, including a financial record, of a Commonwealth or local
agency that . . . is not protected by a privilege." 65 P.S. § 67.102;
see also 65 P.S. § 67.305(a) ("A record in the possession of a
Commonwealth agency or local agency shall be presumed to be a public
record. The presumption shall not apply if . . . the record is
protected by a privilege."). Similarly, Section 305(b) provides that a
"legislative record in the possession of a legislative agency . .
. shall be presumed to be available in accordance with this
act," but that the presumption "shall not apply if . . . the
record is protected by a privilege." 65 P.S. § 67.305(b).*fn5
The RTKL defines privilege to include "[t]he attorney-work
product doctrine, the attorney-client privilege, the doctor-patient
privilege, the speech and debate privilege or other privilege
recognized by a court interpreting the laws of this Commonwealth." 65
P.S. § 67.102. While an agency "may exercise its discretion to
make any otherwise exempt record accessible," it does not have such
discretion if the record is privileged. 65 P.S. § ...