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McKelvey v. Office of Attorney General

Commonwealth Court of Pennsylvania

October 13, 2017

Wallace McKelvey, PennLive, and The Patriot News, Petitioners
v.
Office of Attorney General, Respondent

          Argued: June 7, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          JOSEPH M. COSGROVE, Judge.

         Wallace McKelvey, PennLive, and the Patriot News (Petitioners) petition for review of a decision of the Appeals Officer for the Office of Attorney General (OAG) denying access to records requested pursuant to the Right to Know Law[1] (RTKL). Upon review, we affirm.

         In December 2015, the OAG retained the law firm of Buckley Sandler, LLP (Buckley Sandler) to conduct an investigation of any crimes arising from or relating to the use of the Commonwealth email communication system. Following its investigation, Buckley Sandler was to prepare a report (Buckley Sandler Report) detailing the results of the investigation. A draft report was submitted in May 2016.

          On August 31, 2016, Petitioners requested, "[a] copy of any report(s) generated by [Buckley Sandler] as a result of its review of emails turned over by the OAG." (Reproduced Record (R.R.) at 1a.) This request was denied by the OAG's Right to Know Officer (RTK Officer) on September 8, 2016. Id. at 2a. In his response, the RTK Officer stated the Buckley Sandler Report had not been finalized and was precluded from disclosure as it represented predecisional deliberations which are exempt from disclosure under Section 708(b)(10)(i)(A)[2] of the RTKL. Id. Additionally, the requested record was protected by the attorney-client and attorney-work-product privileges and did not constitute a public record under Section 305(a)(2).[3] Id. at 2a-3a.

         Petitioners appealed to the OAG Appeals Officer on September 29, 2016. (R.R. at 4a.) Petitioners argued the OAG failed to prove the Buckley Sandler Report was exempt from public disclosure because, as a record in possession of the OAG, it was presumed to be a public record. Id. at 5a-6a. Petitioners further argued the asserted privileges did not apply, and any emails reviewed by Buckley Sandler and/or included in the Buckley Sandler Report constitute factual information that would not fall under the predecisional deliberation exception. Id. at 10a. Petitioners requested the OAG Appeals Officer compel the OAG to submit a detailed privilege log and conduct an independent in-camera review, schedule a hearing, and enter a final determination directing the OAG to disclose all responsive records or portions thereof not exempt from disclosure under the asserted privileges and exceptions. Id. at 12a.

         In response to Petitioners' request for relief, the OAG Appeals Officer conducted an in-camera review of the requested records. (R.R. at 24a.) Following that review, the OAG Appeals Officer issued a decision in which she concluded the requested records were exempt in their entirety pursuant to the attorney-client and attorney-work-product privileges, as well as the predecisional deliberation and noncriminal investigation exemptions set forth in the RTKL.[4] Id. The decision of the RTK Officer was affirmed and Petitioners' appeal denied on October 31, 2016. Id. at 28a. A Petition for Reconsideration was denied on December 6, 2016. Id. at 58a-59a. This appeal followed.[5]

         After the certified record was filed with this Court, the parties submitted a stipulation advising that a redacted version of the Buckley Sandler Report was publicly disclosed on November 22, 2016, which was after the close of the evidentiary record by the OAG Appeals Officer. The redacted version of the Buckley Sandler Report contained redacted appendices, including the emails that were the subject of the investigation and a document appointing Attorney Douglas Gansler as special deputy attorney general. Pursuant to the stipulation, the OAG filed a certified public supplemental record and a certified sealed supplemental record which contained the materials considered in camera by the OAG Appeals Officer.

         Petitioners filed applications for relief for enforcement of the parties' stipulation and appointment of a special master to conduct an independent in camera review of the documents submitted under seal. The OAG filed answers opposing both applications. At a hearing held by this Court, it was determined that the sealed supplemental record did not include the appendices. The Honorable Michael H. Wojcik of this Court, in an unreported opinion filed March 10, 2017, concluded the question of whether Petitioners requested the appendices to the Buckley Sandler Report when they filed the August 31, 2016 RTKL request was a threshold question of law that must be determined before a ruling could be made on Petitioners' pending motions or the underlying merits of privilege or exemption. See McKelvey v. Office of Attorney General, (Pa. Cmwlth. No. 1931 C.D. 2016, filed March 10, 2017), slip op. at 5. Petitioners' applications were thus held in abeyance pending disposition of the question of "whether Petitioners' request for 'any report(s) generated by [Buckley Sandler] as a result of its review of emails turned over to the OAG' fairly encompassed the appendices to the report." Id.

         Despite the numerous issues raised by Petitioners in their present brief, [6]we must address this initial matter before proceeding further.

         Discussion

         Petitioners filed their RTKL request on August 31, 2016. At that time, the Buckley Sandler Report had not been finalized and was not in final form. (September 8, 2016, Decision of the OAG RTK Officer at 1; R.R. at 14a.) By October 31, 2016, when the OAG Appeals Officer issued her decision, the Buckley Sandler Report still had "not yet been placed in its final form and discussions [were] ongoing as to what form [it] might take." (October 31, 2016 Decision of the OAG Appeals Officer at 4; R.R. at 26a.) No final decision had been reached as to what should be, or was legally permitted to be, disclosed. Id. Petitioners' August 31, 2016 RTKL request was limited to "[a] copy of any report(s) generated by [Buckley Sandler] as a result of its review of emails turned over by the OAG." (R.R. at 1a.)

         Section 701(a) [7] of the RTKL provides that, "[i]f the information requested is indeed a record and is in the possession of a Commonwealth agency, it must be made accessible for inspection and duplication…" unless protected by a privilege or exempt from disclosure. When responding to a RTKL request, an agency is not required to create a record which does not currently exist.[8] This Court has stated that, under Section 705 of the RTKL, the standard is "whether such a record is in existence and in possession of the Commonwealth ...


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