McGowan v. Pa. Dep't of Envtl. Prot.

Citation103 A.3d 374
Decision Date28 October 2014
Docket NumberNo. 161 C.D. 2014,161 C.D. 2014
CourtCommonwealth Court of Pennsylvania
PartiesKellie McGOWAN, Petitioner v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent.

Erin N. Kernan, Doylestown, for petitioner.

Jacqueline C. Barnett, Assistant Counsel, Harrisburg, for respondent.

BEFORE: MARY HANNAH LEAVITT, Judge, and PATRICIA A. McCULLOUGH, Judge, and ROCHELLE S. FRIEDMAN, Senior Judge.

Opinion

OPINION BY Judge McCULLOUGH.

Kellie McGowan, Esquire (Requester), petitions for review of the January 6, 2014 final determination of the Office of Open Records (OOR), denying her request for certain information from the Department of Environmental Protection (Department) under the Pennsylvania Right–to–Know Law (RTKL).1 Requester contends that the OOR erred in determining that the Department established that three documents (Document Nos. 11, 16, and 32) were exempt from disclosure under the predecisional deliberation exception at section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A).2 We affirm in part and vacate and remand in part.

I. Facts and Procedural History

The relevant facts and procedural history of this case are not in dispute and may be summarized as follows. By way of background, on December 8, 2006, local community members, non-profit organizations, and members of local governments submitted a petition requesting that the Department conduct an evaluation of the Perkiomen Creek basin for the purpose of re-designating the waterway as having “Exceptional Value Water.” The petition sought to re-designate the Perkiomen Creek in order to receive additional environmental protection measures under the law, thus ensuring that the creek's water quality would be safeguarded. The Department reviewed the petition, and, in September 2013, issued a final report entitled, “Perkiomen Creek: Water Quality Standards Review Stream Redesignation Evaluation Report.” This final report was made available for public comment and recommends that the Perkiomen Creek retain its current classification. (Brief for Requester at 7, n. 1.)

On October 7, 2013, Requester filed a request with the Department, seeking:

1) All data collected, including notes and correspondence, for the Perkiomen Creek Water Quality Standards Review Stream Re-designation Evaluation Report.
2) All correspondence, memorandum and documents, including electronic correspondence, related to the Perkiomen Creek Water Quality Standards Review Stream Re–Designation Evaluation Report.

(Reproduced Record (R.R.) at 10a.)

On November 14, 2013, after requesting a 30–day extension to respond to the request, see section 902 of the RTKL, 65 P.S. § 67.902,3 the Department granted the request in part, providing Requester with 634 pages of responsive records and a compact disc. The Department also denied the request in part, arguing that certain records were exempt from disclosure as records that reflect the internal, predecisional deliberations of an agency and that other records were protected by the attorney-client privilege and/or attorney work-product doctrine. To support its denial, the Department provided Requester with a “Privilege/Exemption/Redaction Log” (Log), which specifically identified the withheld records and stated the legal basis for non-disclosure.

With respect to Document No. 16, the Log identified a document consisting of four pages, dated August 1, 2013, and listed the “Record Type” as an “Internal Briefing Memo for Secretary Re: Hosensack Creek” for [p]reparation for meeting with Aaron Cohen (Arena Strategies), John T. Neilson (Audubon Land Development Corp.), Stephen Harris (Attorney for Geryville Materials) and David Rittenhouse (Geryville Materials).” The Log noted that the recipients and author of Document No. 16 were: [the Department] Staff, briefing author is Tony Shaw.” Further, in the description column, the Log stated that Document No. 16 concerns the [p]otential re-designation of Hosensack Creek, which is part of the stream evaluation report for Perkiomen Creek” and asserted exemption under the predecisional deliberation exception. (R.R. at 18a.)

Regarding Document No. 11, the Log identified the record as a one-page e-mail, dated September 6, 2013, and listed the author and recipients as [the Department] staff, Sean Gimbel to Tony Shaw.” The Log described the contents of Document No. 11 as [r]egarding outreach to a member of the public about the stream evaluation report when it is publically available.” (R.R. at 18a.)

As to Document No. 32, the Log identified the record as a one-page email, with one attachment, dated March 5, 2012. The Log listed the authors and recipients of this correspondence as [the Department] staff, Robert Altenburg to Patricia Allan (with attachment); Patricia Allan to Sean Gimbel; Sean Gimbel to Patricia Allan.” The Log stated that Document No. 32 contained information [r]egarding the timing of stream evaluation.” (R.R. at 20a.) The Log asserted that Documents Nos. 11 and 32 were exempt under the predecisional deliberation exception. (R.R. at 18a, 20a.)

On December 5, 2013, Requester appealed to the OOR, challenging the Department's decision not to disclose Documents Nos. 11, 16, and 32. On December 6, 2013, the OOR invited both parties to supplement the record and directed the Department to notify interested third parties of their ability to participate in the proceedings.

On a date not ascertainable from the record, Requester responded with a memorandum explaining why she believed that the withheld documents did not reflect internal, predecisional deliberations and requesting that the OOR conduct in camera review. On December 17, 2013, the Department submitted a position statement, along with the supporting affidavits of Sean Gimbel, Executive Assistant to the Deputy for the Office of Water Management, and Tony Shaw, Monitoring Section Chief for the Division of Water Quality Standards.

In his affidavit, Shaw stated that he is the author of Document No. 16 and averred, in pertinent part, as follows:

12. The briefing document, identified in Item 16 in the [Log], contains and reflects the internal deliberations relating to a predecisional petition review and draft report as to whether the Perkiomen Creek watershed should be redesignated and does not contain any final decision, determination or final Department action as to whether redesignation as to this watershed is warranted.
13. The purpose of preparing the briefing record was to summarize the various internal, predecisional deliberations of Department staff for further discussions and consideration by the Secretary and other Department employees for purposes of arriving at a final Department report for public comment.
14. The contents of the internal briefing memo [are] not a mere agenda but a discussion and evaluation of the issues and factors under consideration by the Department in arriving at a final draft report for public comment.
15. The internal briefing memo not only reflects and contains the internal, predecisional deliberation of the Department, but was relied upon in further internal, predecisional deliberative discussions for purposes of arriving at a draft report for public comment.
16. The contents of the internal briefing memo reflect and contain the internal, predecisional deliberation of the Department as to whether re-designation of the Perkiomen Creek watershed would be appropriate.
17. With the exception of the last draft report, noticed for public comment on September 18, 2013, titled, “Perkiomen Creek: Water Quality Standards Review—September, 2013,” none of the other draft forms of the report represent a final decision of [the Department] since they were continuously revised and discussed internally amongst Departmental personnel.

(R.R. at 45a.)

In his affidavit, Gimbel attested that Documents Nos. 11 and 32 reflect predecisional deliberations regarding the Department's decision to conduct public outreach and the timing of such outreach. Specifically, Gimbel averred as follows:

12. The excepted records [Nos.] 11 and 32 reflected in the privilege log, contain and reflect the internal deliberations relating to a predecisional, petition review and draft report as to public outreach and public evaluation of the stream evaluation reports as to whether the Perkiomen Creek watershed should be redesignated and timing issues associated with the release of the last draft report for public comment and does not contain any final decisions, determination or final Department action as to how and whether public outreach should be accomplished and at what point should the report be issued for public comment (i.e. timing).
13. Item 11 describes a proposed process for a public communication about a record that is undergoing predecisional and internal review.
14. Item 32 relates to a draft public notice concerning the Department's intentions to evaluate the stream designations of Perkiomen Creek and other streams. Item 32 also refers to a record that was undergoing internal review and revisions prior to its release to the public.
15. The purpose of these e-mails was to share and seek various internal, predecisional deliberations of Department staff for further discussions and consideration by other Department employees for purposes of arriving at a final Department position on public outreach and a schedule for the releasing of the draft report for public comment.
16. The contents of the internal e-mails reflect a discussion and evaluation of issues and factors under consideration by the Department in arriving at final decisions on public outreach and timing.
17. The e-mails not only reflect and contain the internal, predecisional deliberation of the Department but were relied upon in further internal, predecisional deliberative discussions for purposes of arriving at final decisions pertaining to public outreach and timing.
18. To not except this record from production would reveal the Department's
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