Argued: April 6, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE JULIA K.
HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge
PELLEGRINI, Senior Judge
Smith, on behalf of Smith Butz, LLC (Requester), petitions
for review of a Final Determination of the Office of Open
Records (OOR) denying in part her request to the Pennsylvania
Department of Environmental Protection (DEP) for access to
records relating to Core Laboratories d/b/a ProTechnics,
division of Core Laboratories, LP (ProTechnics), under the
Pennsylvania Right-to-Know Law (RTKL).
February 1, 2016, Requester submitted a RTKL request, later
amended,  for all records held by the DEP relating
to ProTechnics, a business that performs drilling diagnostics
using radioactive tracers. The request sought records related
to ProTechnics' activities at all drill sites throughout
the Commonwealth, including:
[Item 1] Any and all approvals, permits, licenses/licensures,
applications for permits and/or licenses, reciprocity
letters, reciprocity licenses, reciprocity agreements and/or
reciprocity arrangements, including, but not limited to all
licenses issued by the [DEP to Protechnics] for use, storage
and possession of radioactive materials and/or other licensed
material. Additionally, this request seeks any and all
investigation reports, Notices of Violation(s), Consent Order
and Agreement(s) issued to Protechnics by the PA DEP and/or
between Protechnics and the PA DEP for any and all work or
services performed by Protechnics at any natural gas well
site in the Commonwealth of Pennsylvania. Included in this
request is a request for copies of all Notices of Violation
issued by the PA DEP to Protechnics, including but not
limited to Notices of Violation dated 06/15/10, 1/28/10,
11/26/13, 09/13/13 and 10/14/13, Violation Numbers 677913,
677915, 677914, 682834, 682833, 682829, 682835 and all
corresponding inspection reports, field notes and other
related writings. Further, this request seeks any and all
Consent Order and Agreements between the PA DEP and
Protechnics, including, but not limited to, Consent Orders
and Agreements dated November 2, 2013 and November 2, 2010.
[Item 2] Additionally, this request includes a request for
copies of all enforcement activity taken by the PA DEP
against Protechnics, including but not limited to Enforcement
ID Number 305057, 259202 and 263973, as well as all
inspection reports completed by the PA DEP regarding
Protechnics, including, but not limited to, Inspection ID
Numbers 1891418, 1919964, 2147772, 2204156 and 2221258.
[Item 3] This request further seeks any and all Radioactive
Tracer Well Site Agreements made between Protechnics and any
well site operator(s) for each and every well traced in the
Commonwealth of Pennsylvania that is or was submitted to the
PA DEP, including, but not limited to, the April 7, 2013,
Radioactive Tracer Well Site Agreement between Protechnics
and a well operator.
[Item 4] In addition to the above, this request seeks any and
all notifications submitted to the PA DEP by Protechnics or
the associated operator or subcontractor regarding
Protechnics['] confirmation that licensed material,
including, but not limited to, radioactive material, was
returned to the surface at any well site in which Protechnics
operated/performed work or services in the Commonwealth of
[Item 5] Additionally, this request seeks any and all
documents, correspondence, e-mails and any other
communication(s) between Protechnics and the PA DEP and/or
Range Resources and the PA DEP regarding Protechnics and any
and all work/services performed in the Commonwealth of
Pennsylvania by Protechnics.
[Item 6] Further, this request seeks any and all MSDS/SDS
(material data safety sheets and safety data sheets) in the
possession of the PA DEP regarding any and all products
utilized by Protechnics at any well site in Pennsylvania,
including, but not limited to, all MSDS/SDS for Protechnics
Radioactive Tracer Products, as well as any and all Chemical
Frac Tracer ("CFT") products, including, but not
limited to, CFT 1000, CFT 1100, CFT 1200, CFT 1300, CFT 2000,
CFT 2100, CFT 1900, CFT 1700.
(Reproduced Record (R.R.) at 3a-4a.)
the request was statewide in scope, the DEP tasked its
Central Office as well as its Southeast, Northeast,
Southcentral, Northcentral, Southwest and Northwest Regional
offices to gather those documents that responded to the
request. On February 8, 2016, the DEP invoked a 30-day
extension. See Section 902(b) of the RTKL, 65 P.S.
§ 67.902(b). On March 9, 2016,  the DEP partially denied the
March 28, 2016, Requester appealed to the OOR, challenging
the DEP's denial and giving reasons why the records
should be released. The OOR then directed the DEP to notify
any third parties that may be affected by the release of the
documents of their right to participate in the appeal.
See Section 1101(c) of the RTKL, 65 P.S. §
67.1101(c). Soon thereafter, ProTechnics requested to
participate in this appeal, and the OOR granted the request.
The OOR then invited all parties to supplement the record.
then submitted a position statement along with ten
affidavits and privilege logs. The DEP's
position statement contended that it was partially denying
the RTKL request because the records were exempt under the
Radiation Protection Act (RPA) exception, the attorney-client
privilege and/or the attorney work product doctrine,
well as certain RTKL exceptions.
submitted a position statement contending that certain
records were exempt from disclosure because they contain
trade secrets and/or confidential proprietary information.
See Section 708(b)(11) of the RTKL, 65 P.S.
§67.708(b)(11). In support thereof, ProTechnics attached
the sworn affidavit of Will Williams, the Director of U.S.
Operations for ProTechnics.
27, 2016, after reviewing the submissions of the parties, the
OOR issued its final determination partially denying
Requester's appeal. The net effect is that the DEP was
not required to release "all of the identified records
in its privilege logs except for a small subset of records
regarding ProTechnics' license information and limited
information regarding gas well pads." (DEP's Brief
at 8.)Requester then filed this appeal in which
she contends that the OOR erred in not releasing the
requested records for a number of reasons.
contends that under the DEP's RPA regulation, she is
entitled to its investigation reports for three separate
incidents regarding well siteswhere ProTechnics used
RTKL exempts from disclosure any records relating to an
agency investigation. Under its regulations promulgated under
the RPA,  the DEP exempts from disclosure only
"[a] report of investigation, not pertaining to
safety and health in industrial plants, which would
disclose the institution, progress or results of an
investigation undertaken by the Department." 25 Pa. Code
§ 215.14 (emphasis added). Requestor contends that
since the regulation does not exempt from disclosure any
records of investigation "pertaining to safety and
health in industrial plants, " those records should be
disclosed. The DEP contends that the records need not be
released because a "well site" is not an
term "industrial plant" or its component words are
not defined in the RPA or its regulations. When terms in a
statute are not defined, "[w]ords and phrases shall be
construed according to rules of grammar and according to
their common and approved usage. . . ." See 1
Pa.C.S. § 1903(a). Because both parties agree that what
takes place on a well pad is industrial in nature, the
question is does a "well site" fall within the
definition of "plant."
Ninth New Collegiate Dictionary 899 (1989) defines
a. the land, buildings, machinery, apparatus, and fixtures
employed in carrying on a trade or an industrial business;
b. a factory or workshop for the manufacture of a particular
c. the total facilities available for production or service;
d. the buildings and other physical equipment of an
Id. (Emphases added.)
contends that a well site is not a "plant" within
that definition as a well site is not a "factory or
workshop" because to fall within those terms the
activity must take place in a building. Because a well site
is not enclosed in a building, it contends that a well site
is not a plant. The DEP also contends that its interpretation
of what is a "plant" should be given deference
because it is charged with enforcing the regulation at issue.
part, Requester contends that a well site is a
"plant" because all the drilling apparatus, holding
tanks and other machinery that produce natural gas fall
within the definition of "plant" as that term is
commonly understood to mean "the land, buildings,
machinery, apparatus, and fixtures employed in carrying on a
trade or an industrial business." Id.
deciding what is meant by the term "industrial plant,
" initially, we point out that while we agree with the
DEP that, normally, deference is given to an agency's
interpretation of its own ambiguous regulation, giving
deference here is "undoubtedly inappropriate . . . when
it appears that the interpretation is nothing more than a
'convenient litigation position.'"
Christopher v. SmithKline Beecham Corporation, 567
U.S. 142 (2012) (quoting Bowen v. Georgetown University
Hospital, 488 U.S. 204, 213 (1988) (no deference given
to an interpretation of a regulation contained in a court
only statute we have been able to find that defines this term
is the Energy Policy and Conservation Act which defines
"industrial plant" as "any fixed equipment or
facility which is used in connection with, or as part of, any
process or system for industrial production or output."
42 U.S.C. § 6326(5). We adopt that definition because it
is in accord with the dictionary definitions listed above as
well as common understanding of the word that does not
require the facility to be enclosed in a building -
e.g., concrete and asphalt plants. Accordingly,
under the RPA regulations, investigative reports pertaining
to well sites are public records unless the report contains
trade secrets and/or confidential proprietary information
which can be redacted.
next contends that the DEP failed to demonstrate certain
records are protected by the attorney-client privilege and/or
102 of the RTKL defines "privilege" as "[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
incorporating the laws of this Commonwealth." 65 P.S.
§ 67.102. The burden of proving a privilege rests on the
party asserting it. Heavens, 65 A.3d at 1074.
establish the attorney-client privilege, the agency asserting
it must demonstrate that: (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made is a member of the bar of a
court or his subordinate; (3) the communication relates to a
fact of which the attorney was informed by his client,
without the presence of strangers, for the purpose of
securing either an opinion of law, legal services or
assistance in a legal matter and not for the purpose of
committing a crime or tort; and (4) the privilege has been
claimed and is not waived by the client. Bagwell v.
Department of Education, 103 A.3d 409, 420 n.12 (Pa.
The work-product doctrine, while closely related to the
attorney-client privilege, provides broader protection.
Levy [v. Senate of Pennsylvania, 94 A.3d
436 (Pa. Cmwlth. 2014)]; Dages v. Carbon County, 44
A.3d 89 (Pa. Cmwlth. 2012). Confidential information flows
from the client to the attorney, and vice versa, in the
attorney-client relationship. Gillard v. AIG Insurance
Co., 15 A.3d 44 (Pa. 2011). The attorney-client
privilege protects such confidential communications.
Id. By contrast, the work-product privilege only
applies to "the mental impressions, theories, notes,
strategies, research and the like created by an attorney in
the course of his or her professional duties. . . ."
Pennsylvania Public Utility Commission v. Seder, 106
A.3d 193, 201 (Pa. Cmwlth. 2014) (emphasis added) (citing
Levy). Neither privilege protects mere facts.
Commonwealth v. Vartan, 733 A.2d 1258 (Pa. 1999);
Upjohn Co. v. United States, 449 U.S. 383 (1981).
Pennsylvania Department of Education v. Bagwell, 114
A.3d 1113, 1123-24 (Pa. Cmwlth. 2015).
support of its assertion that certain records are protected
as privileged, the DEP supplies several
affidavits attesting that certain specified records
sought legal advice regarding: the DEP's noncriminal
investigations of ProTechnics; preparation for meetings with
ProTechnics; enforcement actions against ProTechnics; and
ProTechnics' applications, agreements and reporting
obligations. Each affidavit specifies the DEP attorneys
consulted and that they are admitted to the Pennsylvania Bar.
Each affidavit also attests that these records contain the
mental impressions, conclusions, opinions and written
work-product created by the DEP counsel regarding the issues
for which legal advice was sought. "At no time were the
communications of DEP legal counsel made in the presence of a
third party." (R.R. at 1959a.)
because Requester has not provided evidence demonstrating
waiver of privilege,  the OOR correctly determined that the
DEP met its burden of proving that these records are
protected by the ...