Argued June 16, 2014
Appealed from No. 2012-0849. Common Pleas Court of the County of Franklin. Herman, President Judge.
Mary H. Powell, Harrisburg, for appellant.
Jerrold A. Sulcove, Chambersburg, for appellee.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
COHN JUBELIRER, JUDGE
Maria Dorsey (Requester) appeals from two Orders of the Court of Common Pleas of the 39th Judicial District (Franklin County Branch) (trial court). By Order entered July 10, 2013, the trial court issued findings of fact and conclusions of law holding that the Chambersburg Area School District (District) was not required, pursuant to the Right to Know Law (RTKL), to disclose 19 pages of emails to Requester because the emails were protected by attorney-client privilege, thereby reversing a Final Determination of the Office of Open Records (OOR). By Order entered August 5, 2013, the trial court granted the District's Motion to Quash Requester's " Motion to Supplement the Record Pursuant to Pa. R.C.P. Rules 1017 and 1019" (Motion to Supplement the Record). Upon review, we affirm the July 10, 2013 Order and reverse the August 5, 2013 Order. In this case, almost two years after Requester's first RTKL request was made, the District provided 3,591 pages of additional records that were responsive to that request. Because we find that the trial court should not have quashed Requester's attempt to raise the issue of whether the District made a good faith attempt to respond to the RTKL requests, we remand for further proceedings.
A. Requester's RTKL Requests
This case has a long and storied history. On July 25, 2011, Requester filed a RTKL request (July RTKL Request) with the District seeking certain documents related to an afterschool program called the " Hip Hop Club," REACHUSA, Inc., and an individual named Jason Reed. (Final Determination at 1, R.R. at 10a.) After requesting additional time to respond, the
District's Open Records Officer, by letter dated September 1, 2011, granted, in part, and denied, in part, Requester's July RTKL Request. (Letter from District to Requester (September 1, 2011), R.R. at 40a.) The District provided Requester with three letters and a printout from its website of the agenda for the July 11, 2007 regular school board meeting. (Letter from District to Requester (September 1, 2011), R.R. at 40a.) The District declined to provide Requester access to certain emails, pursuant to Section 708(b)(17)(iv) of the RTKL, because the documents were privileged attorney-client communications. (Letter from District to Requester (September 1, 2011), R.R. at 40a.) The District further advised Requester that she had a right to appeal its response within 15 business days; however, the District did not advise Requester as to where or with whom she should file her appeal. (Letter from District to Requester (September 1, 2011), R.R. at 40a.) By letter dated September 12, 2011, addressed to the District and the OOR, Requester sought to appeal the District's September 1, 2011 denial of the July RTKL Request. (District's Petition for Review, Ex. E, R.R. at 50a.) Requester included with this letter a signed OOR appeal form dated September 7, 2011. (District's Petition for Review, Ex. E, R.R. at 51a.)
On December 5, 2011, Requester filed a second RTKL Request with the District. (December RTKL Request, R.R. at 6a.) Therein, Requester stated that " [t]his is the same request originally made on July 25, 2011." (December RTKL Request (emphasis omitted), R.R. at 6a.) By letter dated December 12, 2011, the District's Open Records Officer requested thirty additional days to respond to the December RTKL Request. (Letter from District to Requester (December 12, 2011), R.R. at 7a.) However, the District did not respond.
B. OOR Appeal
On January 13, 2012, Requester filed an appeal with the OOR stating that the District failed to respond to her December RTKL Request as indicated in its December 12, 2011 letter. (OOR Appeal, R.R. at 3a.) The OOR invited Requester and the District to supplement the record. (Final Determination at 2, R.R. at 11a.)
The District filed a statement wherein it notified the OOR of Requester's July RTKL Request, its partial denial of that request, Requester's September 12, 2011 appeal of that denial, and Requester's identical December RTKL Request. (Letter from District to OOR (January 30, 2012), R.R. at 8a.) The District maintained that Requester's appeal from the deemed denial of the December RTKL Request should be dismissed: (1) because it was identical in every respect to the July RTKL Request; and (2) because the OOR did not respond to Requester's September 12, 2011 appeal, it was deemed denied and became a final determination of the OOR. (Letter from District to OOR (January 30, 2012), R.R. at 8a.) Thus, the District argued that the appeal was barred by the doctrines of res judicata and collateral estoppel. (Letter from District to OOR (January 30, 2012), R.R. at 8a.) The District further maintained that Requester's appeal was meritless because the District timely responded to the July RTKL Request and provided the responsive records
that were not privileged attorney-client communications. (Letter from District to OOR (January 30, 2012), R.R. at 9a.)
The OOR issued a Final Determination on February 17, 2012, without conducting a hearing, granting Requester's appeal and requiring the District to disclose the emails. The OOR rejected the District's contention that Requester's appeal was barred because her appeal from the District's denial of the July RTKL Request was deemed denied by the OOR's inaction. The OOR found that it had no record of receiving the prior appeal and such an appeal was never docketed. (Final Determination at 3, R.R. at 12a.) The OOR acknowledged that the District provided a copy of an OOR appeal form completed by Requester dated September 7, 2011; however, the OOR noted that the District did not provide any evidence that the OOR received and docketed the alleged appeal or that the OOR informed the parties that it had received and docketed the appeal. (Final Determination at 3-4, R.R. at 12a-13a.) Thus, the OOR concluded that the purported appeal was not deemed denied. (Final Determination at 4, R.R. at 13a.) The OOR further concluded that, because the District did not argue that any of the requested records were exempt from disclosure, the District had not met its burden of proving that the records were exempt pursuant to the RTKL. (Final Determination at 4, R.R. at 13a.)
C. Trial Court Appeal/Proceedings
The District filed a petition for review with the trial court appealing the OOR's Final Determination. (District's Petition for Review, R.R. at 24a-120a.) The District alleged, inter alia, that the requested emails were not public records because they were privileged attorney-client communications and otherwise protected by the attorney work product doctrine. (District's Petition for Review, R.R. at 25a.) In support of this assertion, the District attached an affidavit from its Open Records Officer setting forth which emails the District believed were privileged attorney-client communications. (District's Petition for Review, Ex. I, Affidavit of Sylvia Rockwood, R.R. at 119a.)
By order dated June 14, 2012, after a status conference and upon agreement of the parties, the trial court directed the District to produce all of the emails the District elected not to disclose based upon attorney-client privilege in-chambers for in-camera review. (Trial Ct. Order, June 14, 2012, R.R. at 222a-23a.) By order
dated June 25, 2012, the trial court stated that it had thoroughly reviewed the 19 pages of emails produced by the District for in-camera review and concluded that all of the documents were properly withheld as subject to privileged communication or attorney work product. (Trial Ct. Order, June 25, 2012, R.R. at 224a.) Accordingly, the trial court ordered that the District was not required to produce the documents. (Trial Ct. Order, June 25, 2012, R.R. at 224a.) On August 3, 2012, the trial court ordered that the District's June 14, 2012 transmittal ...