Office of Open Records May Conduct “Private Screenings” of All Information in Interpreting the RTKL

When a governmental agency decides some requested information is exempt under the RTKL, on initial appeal, an Office of Open Records (OOR) appeals officer is tasked with determining whether the agency has met its burden to prove that such information is in fact exempt.  But how would an appeals officer know if the information met a RTKL exemption if he or she could never view it?  According to the courts, the answer is to conduct an in camera review of content—essentially a “private screening” of one, allowing the officer to view the information and decide if it fits into a RTKL exception—and ultimately, whether it should remain concealed.  This in camera allowance, according to the recent Commonwealth Court decision in Office of Open Records v. Center Township, was a logical extension of the OOR’s statutorily granted authority to review agency decisions under the RTKL.

The case arose when a local citizen made a RTKL request to Center Township seeking solicitor’s invoices.  In response, the Township redacted portions of the invoices that allegedly related to litigation services on the grounds that the information was “privileged” under the RTKL because it was attorney-client communication or attorney work-product.  In refusing to turn over the unredacted invoices for the OOR’s in camera review, the Township argued that the OOR did not have jurisdiction to render a decision about what is “attorney-client” or “work-product” protected because such decisions regulating attorney conduct is constitutionally mandated to the Pennsylvania Supreme Court alone.  The Commonwealth court rejected that argument and held that the OOR does have jurisdiction to decide what is “privileged” as attorney-client or work-product information under the RTKL.  The court distinguished this case from its opinion in Silver, which created a very limited exception to the RTKL, excluding from disclosure confidential settlement negotiations from attorneys that the RTKL does not expressly exempt.  The court noted however, that numerous post-Silver decisions afforded the OOR jurisdiction to interpret what is “privileged” under the RTKL, as consistent with numerous provisions of the Law that clearly confer this subject matter jurisdiction upon the OOR.  Based on this statutory mandate, the court embraced the proposition that the OOR has the interpretive power to decide, as a threshold matter, what information qualifies as an exception under the RTKL, even if in some situations the OOR would not have the “power” to force a party to release it.  In the latter case, the court alluded to a process where actual disclosure could be ordered by a court, after the OOR decided that the RTKL required it.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.