The Commonwealth Court has held that predecisional deliberations between government agencies and independent contractors are not public records.  Finnerty v. Pennsylvania Dep’t of Cmty. & Econ. Dev., No. 801 C.D. 2018, 2019 WL 1797668, at *7 (Pa. Commw. Ct. Apr. 25, 2019).  The decision allows government agencies to engage private entities for advice on policy matters without disclosing such advice to the public.

The Finnerty case involved a Right-to-Know Law (RTKL) request to the Pennsylvania Department of Community and Economic Development (Department) for records related to the potential monetization or privatization of the Chester Water Authority (CWA).  The Department denied access to: (1) portions of a report prepared by a private consultant appointed to implement the city’s economic recovery plan, and (2) an email from the consultant’s legal counsel.  The Department asserted that these records were not public under the RTKL’s exemption for internal, predecisional deliberations.

Under the RTKL, records in the possession of a government agency are presumed to be public.  Among records that are not public are records reflecting the “internal, predecisional deliberations of an agency, its members, employees, or officials.” 65 P.S. § 67.708(b)(10)(i).  The Commonwealth Court has previously held that information meets this exemption if the agency proves: “(1) the information is internal to the agency, (2) the information is deliberative in character, and (3) the information is prior to a related decision, and thus ‘predecisional.’”

The requester appealed to the Office of Open Records (OOR), asserting that communications between a government agency and a private consultant are not “internal” deliberations.  The OOR disagreed, holding that the records remained “internal” to the Department, even though the records originated with the private consultant and its legal counsel.  The Commonwealth Court affirmed.

Finnerty presented an issue of first impression–whether information shared between an agency and an entity with whom the agency contracts remains “internal to the agency.”  To answer this question, the Commonwealth Court examined the relationship between the Department and the private consultant.

The Municipalities Financial Recovery Act (referred to as “Act 47”), 53 P.S. §§ 11701.101-11701.712, authorizes the Department to appoint and compensate a consultant to act as a coordinator in preparing and addressing a distressed municipality’s financial problems.  Pursuant to Act 47, the Department contracted with the consultant to implement a recovery plan for the city.  The contract incorporated a budget showing that the consultant would engage a financial advisor and legal counsel for assistance in implementation of the plan.

The Commonwealth Court found this evidence clearly established a contractual relationship between the Department and the private consultant, legal counsel, and the financial advisor.  Since the purpose of this contractual relationship was the implementation the Act 47 recovery plan, the court concluded that the communications remained “internal to the agency.”  Given that the RTKL does not use this language, the court looked to OOR’s interpretation below and federal courts’ interpretations of a related provision under FOIA to glean a legislative intent by the Pennsylvania General Assembly to extend the RTKL’s internal, predecisional deliberation exemption to independent contractors.

Transparency advocates will be troubled by the decision.  The court departed from the plain language of the statute without finding any ambiguity.  There was no attempt to square the decision with precedent developed under the deliberative process privilege—even though the internal, predecisional deliberation exemption codifies that privilege.  FOIA’s exemption is more broadly drafted than the RTKL’s exemption and FOIA has a 25-year sunset provision.  Unlike federal government records, once a deliberative record is found exempt under the RTKL, it is permanently barred from disclosure.

DCED facilitated the transfer of public funds to a private entity to provide policy advice to a distressed city.  The decision leaves the public no ability to determine if the economic recovery plan is rooted in sound policy.