Submitted May 9, 2014
Appealed from No. 01-2010. State Agency: Office of Open Records.
Gayle C. Sproul, Philadelphia, for petitioner.
Matthew H. Haverstick, Philadelphia, for respondent.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.
ROBERT SIMPSON, Judge.
This Right-to-Know Law (RTKL) case, which involves a journalist's request for legislative records relating to the legal representation of Senate Democratic Caucus employees, is before us following a remand from our Supreme Court in
Levy v. Senate of Pennsylvania, 619 Pa. 586, 65 A.3d 361 (Pa. 2013) (Levy). In Levy, the Supreme Court affirmed our decision regarding the applicability of the attorney-client privilege to client identities and descriptions of legal services; however, it reversed our decision to the extent we determined additional bases for nondisclosure were waived. On remand, we consider these alternate bases for nondisclosure, specifically, the work-product doctrine, grand jury secrecy, and the criminal investigation exception of the RTKL. After careful consideration, we hold none of these alternate grounds support the Senate of Pennsylvania's (Senate) redactions of all client identities or general descriptions of legal services in the documents requested.
Marc Levy (Levy), a journalist, requested documents relating to the legal representation
of Senate Democratic Caucus employees under the RTKL. Specifically, the request sought all bills, contracts and payment records relating to the hiring of any outside lawyer or law firm to represent Senator Robert J. Mellow and any current or former employee of the Senate Democratic caucus beginning January 1, 2009.
The Senate Open Records Officer responded to the request by producing five sets of financial records relating to five clients employed by the Senate, who were provided with outside counsel pursuant to the Senate Committee on Management Operations (COMO) Policy for the Payment of Legal Services. However, the Senate Open Records Officer redacted portions of the documents, primarily, the names of the five clients and the description of legal services, on the basis of attorney-client privilege.
Levy appealed to the Senate Appeals Officer and asserted the redacted information was not privileged. The Senate responded the information was properly redacted under the attorney-client privilege, as well as work-product doctrine, grand jury secrecy, and an exception relating to criminal investigation. The Senate Appeals Officer could not conclude whether the attorney-client privilege applied, and he permitted the Senate to provide supplemental affidavits and unredacted records, but he did not specify a time in which to do so. As for the other asserted grounds for redaction, the Senate Appeals Officer determined that there was insufficient evidence to support a determination that the work-product doctrine protected the client or the information in question, that grand jury secrecy should attach, or that the records were exempt as relating to a criminal investigation.
On the 29th day after the Senate Appeals Officer's final determination, Levy appealed to this Court. At that point, neither supplemental affidavits nor unredacted records had been produced by the Senate.
On appeal, an en banc panel addressed the application of the attorney-client privilege to the documents. However, relying on
Signature Information Solutions v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010), abrogated by Levy, we did not address the remaining privileges and exceptions on the basis the Senate waived these alternate reasons by not asserting them in its initial RTKL response.
In consideration of the attorney-client privilege, we received additional evidence in the form of an affidavit and unredacted records, and we appointed a Special Master to review the unredacted documents in camera . Ultimately, in accordance with the recommendations of the Special Master, we determined the attorney-client privilege did not shield names of clients or general descriptions in the legislative records, and we reversed this portion of the Senate Appeals Officer's determination. However, to the extent the redactions shielded specific descriptions of legal services that implicated confidential communications, we upheld the redactions under
the attorney-client privilege. Thus, we affirmed in part and reversed in part the final determination of the Senate Appeals Officer.
The Senate petitioned for allowance of appeal to the Supreme Court. The Supreme Court affirmed our decision regarding the applicability of the attorney-client privilege to client identities and descriptions of legal services. However, to the extent we determined that any reasons for denial not raised in the initial written denial of a RTKL request were waived and could not be raised at a later stage of the RTKL process, the Supreme Court reversed and abrogated this Court's holding in Signature Information. Levy;
see McClintock v. Coatesville Area Sch. Dist., 74 A.3d 378 (Pa. Cmwlth. 2013) (recognizing abrogation). The Supreme Court remanded to this Court for consideration of the additional reasons for denial raised by the Senate before the Senate Appeals Officer. Levy.
On remand, the Senate requested this Court to further remand the matter to the Senate Appeals Officer to allow it to supplement the evidentiary record in support of its argument that the records still at issue are exempt or barred from disclosure by privilege or exception under the RTKL. This Court, speaking through Senior Judge Colins, President Judge Emeritus, denied the request for further remand, explaining the Senate maintained throughout the appeals process that the record before the Senate Appeals Officer was sufficient to resolve its legal claims concerning the additional bases for non-disclosure.
Levy v. Senate of Pa. (Pa. Cmwlth., No. 2222 C.D. 2010, filed August 5, 2013) (single judge opinion). However, the Court allowed the parties to file supplemental briefs on the application of the work-product doctrine, grand jury secrecy and criminal investigation exception to address recent developments in the RTKL. Id.
We now consider the alternate reasons for nondisclosure raised by the Senate to the Senate Appeals Officer in ascertaining the propriety of these redactions. At this juncture, the remaining redactions for review fall into two categories: (1) client identity, and (2) general descriptions of the legal services provided.
The Senate argues once a record is found to be privileged or exempt in part under the RTKL, then the entire record is entitled to protection, and the Senate cannot be compelled to alter its redactions. Additionally, the Senate contends the redactions to client identities and general description of legal services are proper under the work-product doctrine, grand jury secrecy, and criminal investigation exception.
A. Records Not Public
First, the Senate argues once a record is found to be privileged or exempt in any part under the RTKL, the Senate can withhold the entire record, and it cannot be compelled to alter its redactions. The discretion to produce redacted versions of otherwise privileged or exempt records lies exclusively with the agency possessing the records. In other words, once a record is determined to contain privileged or exempt information under the RTKL, the agency does not need to produce it at all; but, if it chooses to do so, then discretion to redact lies solely with the agency. Applied here, because the documents contain protected information, the Senate cannot be compelled to produce the records in unredacted form; consequently, the Senate cannot be directed to alter its voluntary redactions.
Levy counters the Senate's argument is not only waived, but outside of the scope of the Supreme Court's remand, and it is wrong on the merits. The Senate argues for the first time that, to the extent certain records at issue contain some material subject to exemption or privilege, they need not be produced at all, whether in redacted form or otherwise. By not previously raising this argument at any prior stage in the proceeding, the Senate waived this argument. Moreover, the issue is beyond the scope of the Supreme Court's remand order, which directed this Court to consider whether the redactions can stand under the alternate reasons for denial raised by the Senate before the Senate Appeals Officer. As the Senate did not raise this issue, it cannot be considered on remand. Finally, Levy asserts, the Senate's position is wrong as a matter of law because it would make the redaction provisions, contained in Section 706 of the RTKL, 65 P.S. § 67.706, superfluous.
Before the Senate Appeals Officer, and before this Court previously on its initial appeal, the Senate asserted four grounds in support of its redactions: attorney-client privilege; work-product doctrine; grand jury secrecy; and criminal investigation exception. On remand, the Senate now asserts for the first time that once a record is found to be privileged in part, the entire record can be withheld.
In its decision in Levy, our Supreme Court abrogated the per se waiver rule previously embraced in Signature Information (waiver if defense to disclosure not raised in initial denial letter) and its progeny. However, the Court was careful not to totally reject waiver in RTKL proceedings. In fact, the Court applied waiver to reject a challenge to the in camera review process that was not first raised in the Commonwealth Court.
Levy, 65 A.3d at 366 n.4. Thus, waiver may still be applied to RTKL cases where appropriate.
Before the Supreme Court in Levy, the Senate asserted " that an agency must raise all its challenges before 'the appeals officer closes the time for submissions' and 'takes the matter under advisement.'" Id. at 377 (quoting Senate Br. at 25-26 n.17). There is some merit to this assertion.
We agree that an agency must raise all its challenges before the fact-finder closes the record. This will allow efficient receipt of evidence from which facts may be found to resolve the challenges.
In the ordinary course of RTKL proceedings, this will occur at the appeals officer stage, and a reviewing court will defer to the findings of the appeals officer.
See Bowling v. Office of Open Records, 75 A.3d 453, 473-74 (Pa. 2013) (describing success of administrative regime of RTKL; concluding most disputes will end at appeals officer level);
see also id. at 477 (concurring op. by Saylor, J., favoring wide latitude in appeals officer discretion and deference to administrative-level developments);
id. at 478-79 (dissenting op. by Castille, C.J., expressing concern about fact-finding in the Commonwealth Court in RTKL cases). In the rare, extraordinary case in which the initial reviewing court must act as a fact-finder, an agency must raise all its challenges before the close of evidence before the court.
Here, this Court acted as a fact-finder when, on appeal from the Senate Appeals Officer, it conducted in camera review of unredacted copies of the billing records in question. After review, the record was closed, and a decision was issued. On remand, this Court declined to arrange for re-opening of the record. Thus, the time to raise new challenges to disclosure of the billing records is past. Challenges not previously raised before the fact-finder are ...