When In Camera Review Occurs, the Commonwealth Court Expects a Sufficient Record by the OOR or Trial Court to Allow Proper Appellate Analysis and Review

In a decision involving the predecisional deliberative exemption under Section 708(b)(10) and the assertion of the attorney-client privilege, the Commonwealth Court reminded the Office of Open Records and trial courts of the need for sufficient analysis and findings of fact to allow proper appellate review. In Heintzelman v. DCED, Judge Simpson reminded the probable fact-finders to set forth a detailed analysis of findings made after in camera review of documents. The case involved the assertion of the predecisional deliberative exception and attorney-client privilege. DCED submitted a privilege log and unredacted documents to the OOR for review. The OOR found most of the records requested (emails) were exempt under the predecisional deliberative exception and did not address attorney-client privilege or work product doctrine. The requester ended up admitting the factors necessary for the predecisional exemption to apply. The Court noted that the requester “did not request this court to undertake the role of fact-finder here.” However, the Court found the OOR’s analysis in support of its finding the exemption applied to be conclusory prompting this footnote:

In reaching its determination, OOR did not explain how the redaction qualified for protection under the exception. Instead, it protected the emails based on its in camera review. This appeal highlights the difficulty in discerning the proper application of exemptions in RTKL appeals when an appeals officer bases his or her decision on in camera review. We anticipate greater frequency of in camera review being conducted by OOR in light of our decision in Office of Open Records v. Center Township, 95 A.3d 354 (Pa. Cmwlth. 2014) (en banc). A remand to OOR to submit a reasoned decision in support of its conclusion may have been necessary under other circumstances. Here, however, Requester’s representations to this Court showed he agreed the redactions satisfied the three elements required for the predecisional deliberative exception. Therefore, to assist this Court in serving in our appellate capacity, when records are reviewed in camera below, we respectfully remind fact-finders (OOR, appeals officers, or courts of common pleas) to include more robust analysis in support of their determinations.

Clearly, the Court wants to see the OOR and the trial courts set forth a proper factual and legal analysis when, after in camera review, they make determinations as to the applicability of certain exemptions or privileges. Going forward, it would be wise for requesters and agencies both to insist on the same, particularly where appellate review is anticipated.

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.

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