On remand from the Pennsylvania Supreme Court, the Commonwealth Court issued this opinion further defining the exceptions under the RTKL. The issues were (1) whether descriptions of legal services provided to Senate employees were “privileged” under the RTKL, as attorney work-product; (2) whether federal or state law requiring grand jury secrecy prohibited disclosing the names of those employees under the second RTKL exception; and (3) whether releasing any of the information would violate the RTKL’s criminal investigation exception. The Commonwealth Court answered all three questions in the negative, ordering the release of names and descriptions of legal services provided thereto.
First, the court held that general descriptions of legal services did not qualify for the work-product exception under the RTKL. Work-product is an attorney’s “mental impressions, theories, notes, strategies, [and] research” prepared in anticipation of litigation. Levy .v Senate of Pa, No. 2222 C.D. 2010, at 12-13 (Pa. Commw. Ct. June 16, 2014). The reason for the privilege is to afford attorneys a “privileged area” beyond the reach of scrutiny where one can zealously and freely analyze his client’s case and prepare a litigation strategy. The court held, however, that descriptions of general legal tasks performed, e.g., “memo, telephone call, research, etc.” were not work-product. It reasoned that such “generic” descriptions revel nothing of the underlying litigation strategy or the attorney’s mental process, and thus, are not “privileged” under the RTKL.
Second, the court similarity held that releasing names of clients represented by counsel did not violate federal or state laws requiring criminal grand jury secrecy. Both laws prevent the unauthorized disclosure of a “matters occurring before a grand jury” and impose an obligation of secrecy on jurors, present court staff and others directly associated with the internal operations of the proceeding. Fed. R. Crim. P. 6(e)(2)(A); Pa. R. Crim. P. 224-25. The rules explicitly state, however, that grand jury witnesses do not have an obligation of secrecy. Based on the forgoing, the court reasoned that no represented client was in a class of individuals bound by secrecy, and furthermore, merely revealing their names in the billing documents only reveals that legal counsel was engaged in a matter relating to a grand jury. Such a revelation, according to the court, did not even prove that any client was the subject or witness of a criminal investigation, and thus, the mere release of their names was not an unauthorized disclosure of “a matter occurring before a grand jury.”
Finally, the court held that neither disclosing the billing descriptions nor the names of the represented would violate the criminal investigation exception under the RTKL. That exception, explained the court, protected inner-agency records that would reveal the “institution [or] progress . . . of a criminal investigation.” The court reasoned that because the records at issue were merely general descriptions of legal services tied to client’s names, they did not reveal any investigatory information or even prove a criminal target. And accordingly, the records did not reveal the “progress” of an investigation. In the end, the court noted that releasing the information was consistent with a policy of disclosure that informs taxpayers about how their tax dollars are spent, considering that taxpayers were fronting this particular legal bill for Senate employees. But the court decided not to entertain another issue that can greatly impact that policy of openness: It refused to decide whether an entire record is privileged under the RTKL when even a part of that record is exempt under the law. The court instead considered the issue waived and saved it for another day.