OOR Lacks Jurisdiction to Compel Disclosure of Records Related to Pending Litigation

The Commonwealth Court has reversed decisions by the Office of Open Records (OOR) and the Court of Common Pleas of Allegheny County which ordered the City of Pittsburgh (City) to disclose correspondence of settlement negotiations between city officials and a decedent’s estate. City of Pittsburgh v. Silver, — A.3d —-, 1658 C.D. 2011 (Pa.Cmwlth. 4/18/12). Rather than deciding whether the requested records were public records, the Commonwealth Court held that the OOR lacked subject matter jurisdiction to compel the disclosure of documents related to pending litigation. The opinion does not affect the status of executed settlement agreements, which remain generally subject to public disclosure.

Jonathan Silver, a reporter for the Pittsburgh Post-Gazette, submitted an RTKL request for copies of all correspondence between attorneys for the estate of Curtis Mitchell on one side and city officials on the other, concerning settlement negotiations regarding the death of Curtis Mitchell. The City denied the request, asserting the records were exempt from the RTKL under the attorney work-product doctrine, the attorney-client privilege, and Federal and Pennsylvania rules of Evidence 408. The OOR sustained Silver’s appeal. The trial court conducted an in camara review (meaning the court independently reviewed the documents); determined the correspondence in question was not privileged as claimed by the City; and ordered the City to disclose the records.

A four member majority of the Commonwealth Court, in an opinion authored by President Judge Dan Pellegrini, held that the Office of Open Records lacked subject matter jurisdiction to compel the disclosure of documents in a municipal solicitor’s litigation file. Pelligrini reasoned that the Pennsylvania Supreme Court has sole jurisdiction to regulate the conduct of attorneys. The Supreme Court has promulgated Rule of Professional Conduct 1.6(a), which prohibits lawyers from revealing information relating the representation of a client without the client’s informed consent. Subjecting settlement negations to public disclosure would intrude upon the conduct of litigation by lessening the frank exchange of information between parties. Any provision of the RTLK that purports to require disclosure of settlement negotiations unconstitutionally infringes upon the Supreme Court’s regulation of the conduct of attorneys.

Judge Anne Covey wrote a concurring and dissenting opinion, in which she agreed that the records at issue were not subject to public disclosure, but disagreed that the OOR does not have jurisdiction to address the disclosure of documents in a solicitor’s litigation file. Her opinion was silent as to why the OOR has subject matter jurisdiction, and neither of the other two dissenting judges wrote an opinion. Open records advocates should be concerned that the opinion makes otherwise public records exempt from public access solely because the records are placed into the litigation file.