The Commonwealth Court has held that an agency waives any challenges to public disclosure that the agency fails to raise in the initial fact-finding proceedings. Levy v. Senate of Pennsylvania (Levy II), — A.3d —-, 2222 C.D. 2010 (Pa. Cmwlth. 1/15/2014). The Court rejected an argument frequently raised by agencies, that a record containing some privileged or exempt information is entirely exempt from public disclosure. The Court also limited the application of the attorney work-product doctrine, the grand jury secrecy rule, and the criminal investigation exception.
In Levy II, a journalist requested engagement letters and legal invoices related to the “Bonus-Gate” scandal, which involved the improper use of government funds by members of the Senate. The Senate redacted the names of the individuals who asked the Senate to reimburse their legal fees, and the general descriptions of the legal services (e.g., memo, telephone call, research) provided to the individuals. The Senate initially argued that such information was protected by the attorney-client privilege, and later argued that such information was protected by the attorney work-product doctrine, the grand jury secrecy rule, and the criminal investigation exception to the RTKL.
The Commonwealth Court heard Levy II on remand from an opinion of the Supreme Court which abolished the per se waiver rule established by the Commonwealth Court in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa.Cmwlth. 2010). Originally, the Commonwealth Court held that client names and general descriptions of legal services were not protected by the attorney-client privilege. The Commonwealth Court found the Senate had waived any other reason for nondisclosure by failing to raise the issues in the denial letter. The Supreme Court agreed with the Commonwealth Court’s application of the attorney-client privilege, but remanded the case with instructions to decide the other issues raised by the Senate.
On remand, the Senate attempted to raise yet another basis for denial, arguing that once any portion of a record is found to be privileged or exempt under the RTKL, the entire record can be withheld. The Commonwealth Court announced a new waiver rule and found the Senate waived the entire record issue by failing to raise it when the Commonwealth Court conducted an in-camera review in the initial proceedings. Unlike the Signature Information waiver rule, which prevented agencies from raising new issues in subsequent proceedings that were not set forth in the initial denial letter, the Court held an agency must raise all its challenges before the initial fact-finder (the OOR or the “Chapter 13” court) closes the record. The appellate court will subsequently defer to the findings of the appeals officer or the initial reviewing court. The Court also found it did not have the authority to address the entire record issue because that issue was not encompassed within the Supreme Court’s remand order. Although the Court did not directly rule upon the Senate’s entire record issue, it noted that the Supreme Court has stated in dicta that such an argument would make the redaction provisions of the RTKL superfluous.
The Court next held that general descriptions of legal services are not entitled to protection under the attorney work-product doctrine. In the RTKL context, the attorney work-product doctrine protects from disclosure the mental impressions, theories, notes, strategies, research and the like created by an attorney in the course of his or her professional duties, particularly in anticipation or prevention of litigation. General descriptions such as drafting a memo, making a telephone call, performing research, or observing a trial do not reveal an attorney’s mental impressions, theories, notes, strategies, research, or litigation strategy; rather, they simply explain the generic nature of the service performed and justify the charges for legal services rendered. Taxpayers are entitled to know the general nature of the legal services for which they are footing the bill.
The Court found there was insufficient evidence to conclude the disclosure of the client’s names would violate the rule of grand jury secrecy, which only prevents the unauthorized disclosure of “matters occurring before the grand jury.” The Senate failed to prove the existence of facts to support its assertion of grand jury secrecy because the record was not clear whether the clients are in fact grand jury witnesses.
The Court found the legal invoices were not exempt from public disclosure under the criminal investigation exception to the RTKL because neither the client identities nor the general descriptions of legal services revealed the institution or progress of a criminal investigation. The engagement letters and legal invoices do not relate to any law enforcement functions of the Senate. To the extent the documents referenced or “related to” a criminal investigation conducted by another agency, they did not contain investigatory material.
This decision fills the void left after the Supreme Court rejected the “Signature” per se waiver rule. Waiver is a universal concept in the law and there was simply no reason for agencies (or requesters) to have unending bites of the apple in RTKL cases. All parties to RTKL appeals must now be certain to raise all applicable arguments in support of or in opposition to disclosure of records and to submit sufficient, competent evidence in support of those arguments. It is best to do so at the OOR level, but must be done by the close of the record before the “Chapter 13” courts which our Supreme Court has established as the trial court in local agency cases or potentially the Commonwealth Court itself in Commonwealth agency cases. Bowling, 75 A.3d at 458. However, it may be assumed that the Commonwealth Court is not anxious to begin holding hundreds of ‘evidentiary’ hearings in RTKL cases, so one is well advised to make one’s best and most complete submissions at the OOR, and no later than the trial court. Since agencies bear the burden to demonstrate that a document is not a public record, this burden will fall most often on their heads. This also signals that the OOR is going to have to adapt its current procedures to allow for more hearings and procedures to submit complete evidence and argument.
It has taken 5 years for waiver to be determined in RTKL cases (although there is a good chance the Senate will ask the Supreme Court to weigh in on this decision as well). How long will other procedural and substantive guidelines take?
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.