Submitted, January 16, 2015
Appealed fro No. AP 2014-0551. State Agency Office of Open Records.
Roberto T. Datorre, Assistant Counsel, Harrisburg, for petitioner.
Ryan Bagwell, Pro se.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
Procedurally, this controversy involves the certification of an adequate record for appellate review. Substantively, this case involves exemptions under the Right-to-Know Law (RTKL).
More specifically, the Department of Education (Department) petitions for review from a final determination of the Office of Open Records (OOR) that directed disclosure of e-mails between the former Secretary of Education (Former Secretary) and counsel at the Office of
General Counsel (OGC) to Ryan Bagwell (Requester). The Department denied access under the attorney-client and work-product privileges, and the predecisional deliberative exception. To prove the exemptions, the Department relied on a one-page verified statement, on which it declined to elaborate. Requester asked for a hearing to present evidence regarding waiver of the attorney privileges. OOR denied the request for a hearing. After conducting in camera review, OOR determined the Department did not meet its burden of proof. The Department argues its verified statement established the privileges and the exception. The Department also requests correction of the certified record.
Procedurally, the certified record is deficient in that it does not include the material submitted to OOR for in camera review. Nor is it apparent from the record whether OOR was able to develop an adequate factual record as to waiver of the attorney privileges. Moreover, Requester disputes whether he had a full opportunity to develop the record before OOR regarding waiver of the attorney privileges, on which he bears the burden of proof. Therefore, as to the attorney privileges, we hold our disposition in abeyance, and remand the record to OOR to afford Requester this opportunity, and to certify a complete record. Substantively, as to the predecisional deliberative exception, where the Department failed to prove material facts on which it bore the burden, we affirm.
Pursuant to the RTKL, Requester submitted a request for records from the Department seeking " copies [of] all e-mails sent between [Former Secretary] Ron Tomalis, James Schultz and Stephen Aichele on November 8, 2011" (Request). Reproduced Record (R.R.) at 7a. On that date, James Schultz was the First Executive Deputy General Counsel and Stephen Aichele was General Counsel to then Governor Tom Corbett.
The Department identified three e-mails with the subject line: " Attorney Recommendations" as responsive to the Request (E-mails). Based on the timing of the Request, and surrounding circumstances, it is believed the E-mails pertain to an investigation of Penn State University's (PSU) handling of the allegations of child sexual abuse against Gerald Sandusky. However, the Department denied access, citing the attorney-client privilege, the work-product doctrine, and the deliberative process privilege codified in Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10) (predecisional deliberative exception).
Requester appealed to OOR, arguing the records were not protected by the attorney privileges or the predecisional deliberative exception. In support, Requester asserted the Department waived the privileges by disclosing the E-mails to PSU. He also argued that E-mails regarding the hiring of a firm to perform an investigation do not implicate legal advice and are not deliberative.
OOR invited both parties to supplement the record, and directed the Department to notify third parties of their ability to
participate pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). PSU did not participate in the proceedings or indicate a direct interest.
In response, the Department submitted a position statement relating the context of the E-mails between Former Secretary and Commonwealth counsel. The Department explained that in those communications, Former Secretary was acting on the Department's behalf; thus, he was under the executive agency umbrella protected by the attorney-client relationship with OGC. The Department submitted a verification signed by Former Secretary. In full, the verification made in accordance with 18 Pa. C.S. § 4904 states:
1. As the Secretary of the [Department] on November 8, 2011, I was a client of the [OGC];
2. I communicated with Stephen Aichele and/or James Schultz, attorneys in the [OGC], on November 8, 2011, as represented in e[-]mails of that date described in [the Department's] response to your [Request];
3. The e[-]mails of November 8, 2011 that are in my possession and identified in [the Department's] response to your [Request] include only Mr. Aichele, Mr. Schultz and myself, and contain the mental impressions and/or opinions of Mr. Aichele and Mr. Schultz pertaining to an issue I presented to them for the purpose of seeking legal services or assistance in a legal matter, and was not for the purpose of committing a crime or tort; and,
4. I claim and have not waived the attorney-client privilege regarding the e[-]mails of November 8, 2011 identified in [the Department's] response to your [Request] that are in my possession.
R.R. at 6a (Verification, dated April 7, 2014). In addition, the Department requested an opportunity to respond to any allegations Requester proffered as to waiver of the attorney-client privilege.
To support his waiver claim, Requester submitted an e-mail dated November 11, 2011, from Former Secretary to PSU Trustee Ken Frazier. The content of that e-mail follows: " Re[:] Freeh and Chertoff --I noted the same thing about Freeh when I had reviewed the names prior to forwarding them to [PSU Board Chairman] John [Surma] earlier in the week, and agree it gives the edge to Chertoff." R.R. at 37a. Requester contended the reference to forwarding names to PSU Board Chairman Surma shows the E-mails of " Attorney Recommendations" were disclosed to Surma. Requester asked OOR to conduct a hearing to present witnesses to prove his waiver claim.
Prior to issuing a final determination, OOR undertook in camera review of the E-mails upon request. The Department provided an accompanying index that identified each e-mail by sender/recipient and by time, with the corresponding exemption (Index). R.R. at 71a. E-mail No. 1 was the first e-mail sent from Schultz to Aichele, both OGC counsel. E-mail No. 2 forwarded that e-mail from Aichele to Former Secretary and to Schultz. Less than a half an hour later, Former Secretary sent E-mail No. 3 to Aichele and to Schultz. The Index did not include any description of content. After conducting in camera review, OOR offered the Department an opportunity to submit rebuttal to
Requester's waiver submission. The Department refused.
Ultimately, after declining to hold a hearing, the appeals officer granted the appeal, directing disclosure of the E-mails. See Bagwell v. Dep't of Educ., OOR Dkt. No. AP 2014-055, (issued June 9, 2014) (Final Determination). OOR did not base its determination on its in camera review. Rather, OOR reasoned that unsworn statements consisting of legal argument (the Department's position statement) are not competent evidence to withhold records from disclosure. OOR also determined the Verification lacked sufficient detail to substantiate any of the exemptions. Specifically, OOR noted the Verification did not identify the legal issues under consideration or " provide any factual support in its affidavit that the content of the communication within the withheld records is for the purpose of seeking legal services or assistance in a legal matter, other than merely parroting the language of the attorney-client privilege." Final Determination at 8. Therefore, OOR concluded the Department did not meet its burden of proof.
The Department filed a petition for review to this Court. The Department bears the burden of proving its denial grounds. Nonetheless, the Department did not request that this Court conduct in camera review of the E-mails, relying on its submissions to OOR as sufficient to meet its burden of proof.
The Department seeks reversal of the Final Determination on the merits. The Department challenges OOR's determination that it did not prove the privileges and exception protected the E-mails. The Department also asks this Court to expand the certified record, arguing all submissions accepted by OOR, to which no party objects, must be included.
Seeking to enlist our fact-finding authority, Requester sought an evidentiary hearing before this Court. Requester represented the purpose of the hearing would be to present testimonial evidence from Former Secretary and others as to whether the E-mails were disclosed to third parties. He disputes the adequacy of the record to make findings regarding waiver.
" As to factual disputes, this Court may exercise functions of a fact-finder, and has the discretion to rely upon the record created below or to create its own." Dep't of Labor & Indus. v. Heltzel, 90 A.3d 823, 828 (Pa.Cmwlth. 2014) (en banc). In this case, we exercise our discretion to rely upon the record that is created by OOR.
OOR concluded the Verification did not contain sufficient detail to establish any of the exemptions. However, OOR had the benefit of reviewing the E-mails in camera prior to issuing the Final Determination. Regrettably, OOR did not include the E-mails in the certified record. In addition to in camera review, OOR attempted to supplement the record by other means. Specifically, OOR requested that the Department substantiate its claim that it did not waive the attorney privileges such as by disclosure to third parties. The Department declined.
A. Content of Certified Record
1. Record on Appeal
Section 1303(b) of the RTKL provides that " [t]he record ...