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Commonwealth, Office of Open Records v. Center Township

Commonwealth Court of Pennsylvania

June 24, 2014

Commonwealth of Pennsylvania, Office of Open Records, Petitioner
Center Township, Respondent

Argued April 23, 2014.

Page 355

Dena Lefkowitz, Chief Counsel, Harrisburg, for petitioner.

Michael D. Gallagher, Butler, for respondent.



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Before the Court is a cross-motion for summary relief filed by the Office of Open Records (OOR) and Center Township (Township). Two issues of first impression are presented: whether the OOR has subject matter jurisdiction to determine if a document is exempt under the attorney-client privilege and/or work-product doctrine and whether the OOR has the statutory authority to conduct in camera review upon request by one of the parties. Answering both questions in the affirmative, we grant the OOR summary relief.

Facts and Procedural History

On May 13, 2013, Beverly Schenck (Requester) filed a request with the Township pursuant to the Right-to-Know Law (RTKL),[1] seeking solicitor's invoices for December 2012 through April 2013. The Township partially denied the request by redacting portions of the invoices that allegedly pertain to litigation services. On June 20, 2013, Requester appealed to the OOR and asked the OOR to conduct in camera review[2] of the invoices. In response, the Township submitted correspondence, stating that the redacted portions of the invoices concern the progress and avenues explored in litigation and litigation-related issues and, therefore, are exempt from disclosure under the attorney-client privilege or attorney work-product doctrine. (Joint Motion for Summary

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Relief, 1/29/2014, Statement of Undisputed Facts).

On July 25, 2013, the OOR directed the Township to provide a privilege log identifying each record withheld and explaining why a privilege applies to each redacted entry. The Township did not provide the OOR with a privilege log, instead asserting that the OOR is without authority or jurisdiction to make such a demand. Upon reviewing the record, the OOR determined that it could not properly adjudicate the dispute without assessing the records because there was no substantial evidence concerning the contents and description of the litigation services. On August 30, 2013, the OOR granted Requester's request for in camera review and directed the Township to produce for in camera inspection unredacted copies of all responsive records that the Township withheld. The Township did not comply, asserting that the OOR lacks statutory authority to compel and undertake an in camera review. The Township also argued that the OOR does not possess subject matter jurisdiction to review the documents and determine whether they are covered by the asserted privileges. Id.

On October 24, 2013, the OOR filed a Petition to Enforce Order in this Court, seeking an order compelling the Township to produce the records in unredacted form for in camera inspection. On January 14, 2014, President Judge Pellegrini entered an order referring the matter to a panel for review and directing the parties to submit a Joint Motion for Summary Relief. Id.; Order, 1/14/2014.

The parties have filed a Joint Motion for Summary Relief, containing a stipulation of undisputed facts, and legal briefs in support of their respective positions. This matter is now ripe for disposition.[3]

Whether the OOR has Subject Matter Jurisdiction to Determine if a Document is Exempt under the Attorney-Client Privilege or Work-Product Doctrine

Relying predominately on City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012) ( en banc ),[4] the Township contends that the OOR does not possess subject matter jurisdiction to determine whether the attorney-client privilege or work-product doctrine applies because this power is within the exclusive authority of the Supreme Court. According to the Township, the attorney-client privilege and work-product doctrine are governed by Pennsylvania Rule of Professional Conduct (Pa. R.P.C.) 1.6, and " the OOR's order to [the Township] is but a vain attempt by an agency of the Legislature to interpose itself into the role of the judiciary and exercise a power which it does not hold." (Brief for the Township at 16.)

The OOR argues that it has subject matter jurisdiction to assess whether records are subject to the attorney-client privilege and the attorney work-product doctrine. For support, the OOR cites cases decided post- Silver where the OOR adjudicated disputes involving the attorney-client privilege, as well as other privileges, and this Court addressed the merits

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of the appeals without questioning the OOR's subject matter jurisdiction. The OOR proposes that Silver's holding is extremely narrow and emphasizes that it is not ordering the disclosure of documents related to settlement negotiations in an attorney's case file, and, consequently, is not encroaching upon the Supreme Court's exclusive power.[5]


The objective of the RTKL " is to empower citizens by affording them access to information concerning the activities of their government." SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029, 1042 (Pa. 2012). Pursuant to section 305 of the RTKL, a record in the possession of a local agency, like the Township in this case, shall be presumed to be a public record, unless: the record is exempt under section 708 of the RTKL; the record is protected by a privilege; or the record is exempt from disclosure under any other Federal or State law or regulation or judicial order. 65 P.S. § 67.305. The RTKL defines the term " 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." Section 102 of the RTKL, 65 P.S. § 67.102 (defining " privilege" ).

It is the local agency's burden to prove, by a preponderance of the evidence, that a record is exempt from public access on the basis that the record contains privileged material. Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1); Department of Transportation v. Drack, 42 A.3d 355, 364 (Pa. Cmwlth. 2012) (" [T]he RTKL places an evidentiary burden upon agencies seeking to deny access to records even when a privilege is involved." ). In appeals to the OOR, the RTKL charges an OOR appeals officer with the obligation of determining whether an agency has met its burden of proof. Section 1101(b)(1) of the RTKL, 65 P.S. § 67.1101(b)(1) (" [T]he appeals officer shall make a final determination" ). Because the RTKL " is remedial legislation designed 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, the exemptions from disclosure must be narrowly construed." Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010) ( en banc ), aff'd, 75 A.3d 453 (Pa. 2013).

In Silver, the requester submitted a request under the RTKL seeking copies of all correspondence contained in the file of an assistant city solicitor between attorneys for the estate of a deceased person and city officials regarding efforts to negotiate the settlement of pending litigation with respect to the decedent's death. The city denied the request, asserting, among other things, that the documents were protected by the attorney-client privilege and the work-product doctrine. The requester filed an appeal to the OOR, which sustained the appeal and ordered that the documents be disclosed. On further appeal, a trial court affirmed the OOR, concluding that none of the documents were covered by the asserted privileges.

The city then filed an appeal to this Court. Instead of determining whether the documents were protected under the attorney-client and/or work-product privileges, this Court concluded, sua sponte, that the OOR lacked subject matter jurisdiction " under the RTKL to compel the disclosure of the documents in the associate

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solicitor's file relating to the pending litigation." 50 A.3d at 299 & n.9.

In so holding, this Court in Silver highlighted Article V, Section 10(c) of the Pennsylvania Constitution,[6] which has been interpreted as vesting in the Supreme Court the exclusive power to govern the conduct of attorneys practicing law in this Commonwealth. This Court then opined that the Supreme Court's regulatory authority involves the conduct of litigation and necessarily extends to a lawyer's efforts to settle litigation. On this foundation, we opined:

Allowing anyone to make ongoing requests under the RTKL concerning all correspondence regarding settlement impermissibly intrudes into the conduct of litigation because it would lessen the frank exchange of information between the parties thereby adversely affecting the ability for litigation to settle. Moreover, the conduct of litigation could be affected because other parties to the litigation could constantly seek information about settlement discussions to discern the other parties' belief as to the strength or weakness of their case. ...

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