Bagwell v. Pa. Dep't of Educ.

• Decision Date: 31 October 2014
• Docket Number: No. 79 C.D. 2014,79 C.D. 2014
• Citation: 103 A.3d 409
• Court: Pennsylvania Commonwealth Court
• Parties: Ryan BAGWELL, Petitioner v. PENNSYLVANIA DEPARTMENT OF EDUCATION, Respondent.

103 A.3d 409

Ryan BAGWELL, Petitioner

v.PENNSYLVANIA DEPARTMENT OF EDUCATION, Respondent.

No. 79 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued Sept. 10, 2014.

Decided Oct. 31, 2014.

Reargument Denied Dec. 18, 2014.

Joshua D. Bonn, Harrisburg, for petitioner.

Robert L. Byer, Pittsburgh, for intervenorPennsylvania State University.

BEFORE: DAN PELLEGRINI, President Judge, BERNARD L. McGINLEY, Judge, ROBERT SIMPSON, Judge, PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge ROBERT SIMPSON.

This is a Right–to–Know Law (RTKL)¹ appeal from a final determination of the Office of Open Records(OOR) that denied access to certain information under the attorney-client privilege and the work-product doctrine.Ryan Bagwell(Requester) sought records from the Department of Education(Department) regarding correspondence sent to the Secretary of Education (Secretary) as an ex officio member of the Pennsylvania State University(PSU)Board of Trustees(Board).The request implicates the scandal involving former PSU football coach Jerry Sandusky, and the related investigation conducted by the law firm of Freeh Sporkin & Sullivan LLP (Freeh).

PSU submitted material as a party with a direct interest.The OOR reviewed the records to which PSU and the Department asserted the privileges in camera.Based on its review, OOR directed disclosure of certain records, but it agreed the majority of the records fell within the privileges.Requester argues that OOR applied the privileges too broadly, and that some elements are not met.Requester also asserts PSU waived the privileges by disclosing the subject-matter to third parties, including to the public in the Freeh Report.Requester also seeks fees under the RTKL.Based on the legal challenges raised here, we affirm.

I.Background

Pursuant to the RTKL, Requester submitted a request for records from the Department seeking “all letters, memos, reports, contracts and emails sent to former Secretary Ron Tomalis and/or his assistant Jane Shoop between November 5, 2011 and July 31, 2013 from any of the following individuals:

1.Louis Freeh[counsel] ...

2.Omar McNeill[counsel] ...

3.Kenneth Frazier[PSU Board member] ...

4.Annette DeRose[Frazier's assistant] ...

5.Paula Ammerman[PSU Board member] ...

6.Karen Peetz[PSU Board member] ... [and]

7.Steve Garban[PSU Board member].

Reproduced Record (R.R.)at 4a(Request).

The Department denied the Request in part based on the attorney-client and attorney work-product privileges, and based on several RTKL exceptions.The Department provided some responsive records and additional records in redacted form.It also submitted an index that identified withheld records by date range, participants, email subject line, and reason for denying access (Index).

Requester appealed to OOR as to the records withheld in their entirety, and he asked OOR to review the withheld records in camera.The Department submitted 673 pages of responsive records to OOR for in camera review.The Department asserted the privileges and exceptions should be applied to protect the records sent to the Secretary as a member of PSU's Board.

PSU submitted materials to participate as an entity with a direct interest under Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c).As part of its materials, PSU submitted a position statement identifying various counsel, both in-house and private firms, who were hired to investigate legal matters or to provide legal advice.PSU advised that Freeh was engaged as counsel to the Board and to the Special Investigative Task Force of the Board.²

PSU provided an affidavit from legal counselFrank Guadagnino(Guadagnino) explaining the Secretary's role and fiduciary duty to PSU.PSU submitted another affidavit of Jane Andrews, Director of the Office of the Board, attesting that none of the documents identified as privileged were disclosed to third parties(Andrews Affidavit).

In response to Requester's contention that PSU did not properly invoke the privileges, PSU submitted a supplemental affidavit from Guadagnino that Freeh did not reveal privileged information to third parties.Guadagnino represented that although Freeh provided periodic updates of its investigation to the National Collegiate Athletic Association(NCAA) and to the Big Ten Conference, neither entity revealed privileged information.As a result, PSU asserted certain withheld records were protected under either the attorney-client privilege or the work-product doctrine.³

To OOR, Requester argued the attorney-client privilege did not attach to records sent from Freeh because PSU hired Freeh for its fact-finding expertise, not legal advice.In the alternative, Requester contended that to the extent a privilege existed, PSU waived any privileges by permitting Freeh to discuss matters involving the same subject with third-party organizations and government entities.

The day before OOR issued its final determination, Requester asked OOR to hold a hearing regarding applicability of the privileges, and to receive proof of the alleged waiver.⁴OOR denied the request “because [it] ha[d] the necessary, requisite information and evidence before it to properly adjudicate the matter.”SeeBagwell v. Dep't of Educ. & PSU, OOR Dkt.No. AP 2013–1753, 2013 WL 6841605(Pa. OOR, filed December 20, 2013), (Final Determination)at 6.

Based on its in camera review, OOR concluded certain records are protected by the attorney-client privilege and/or attorney work-product doctrine.OOR found that PSU did not waive any privilege.OOR also determined that certain material qualified as work-product; therefore, that material could be redacted from additional pages.SeeFinal Determinationat 9–10.The majority of the protected records are described as communications from counsel.In its Final Determination, OOR characterized these redactions as reflecting attorney opinions or mental impressions.Id. at 9.

OOR concluded the remaining records or parts of records were not privileged because they did not qualify as mental impressions, or were not made for the purpose of securing legal assistance, or were not made by a party's attorney.OOR reasoned that none of the RTKL exceptions under Section 708(b) applied to protect the records because the exceptions only apply to an agency, not to PSU.⁵

Requester appealed, asserting that the work-product privilege is reserved for material prepared in anticipation of litigation, and that PSU waived the privileges.Prior to briefing, Requester filed an application for relief for permission to conduct discovery or for an evidentiary hearing regarding PSU's waiver of the privileges.This Court, speaking through President Judge Pellegrini, denied the application.On the record before us,⁶we review this matter in our appellate capacity.

II.Issues

During oral argument, this Court confirmed there are two legal issues before us:⁷ first, whether OOR erred in exempting certain records under the work-product doctrine when there is no evidence that such records were prepared in anticipation of litigation; second, whether OOR erred by finding that PSU did not waive any privilege when it entered waiver agreements with third parties and disclosed materials pertaining to the same subject matter.In the event this Court finds in his favor, Requester also seeks attorney fees under the RTKL, asserting PSU acted in bad faith by not producing evidence showing its waiver of the privilege.

III.Discussion

Although this Court may exercise jurisdiction as a fact-finder, and make independent findings based on its review of the evidence, Bowling v. Office of Open Records,990 A.2d 813(Pa.Cmwlth.2010), aff'd,621 Pa. 133, 75 A.3d 453(2013), that is unnecessary when we are presented with pure matters of legal construction.For a question of law, our scope of review is plenary.Dep't of Corr. v. Office of Open Records,18 A.3d 429(Pa.Cmwlth.2011).This appeal challenges OOR's legal interpretation of the privileges invoked under specified circumstances.

This Court previously determined that records sent to the Secretary in his ex officio capacity as a PSU Board member on behalf of the Department are records received by an agency within OOR's jurisdiction.Bagwell v. Dep't ofEduc., 76 A.3d 81 (Pa.Cmwlth.2013)(en banc ).Thus, the fact that PSU is not defined as an “agency” by the RTKL is immaterial to the application of any exemptions, which inure to records of the Department.Id.Ultimately, the RTKL imposes a duty of disclosure on the Department as to any public records in its possession.⁸Bowling.

Under the RTKL, records in possession of a Commonwealth agency are presumed to be public unless they are: (1) exempt under Section 708 of the RTKL; (2)“protected by a privilege; ” or, (3) exempt under any other Federal or State law or regulation or judicial order or decree.Section 305 of the RTKL, 65 P.S. § 67.305(emphasis added).Section 102 of the RTKL defines “privilege” as:

The attorney work-product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court incorporating the laws of this Commonwealth.

65 P.S. § 67.102(emphasis added).The burden of proving a privilege rests on the party asserting it.Heavens v. Dep't of Envtl. Prot.,65 A.3d 1069(Pa.Cmwlth.2013).

As background, the Department represented that a number of the records were sent to the Secretary in his role as co-chairperson of the Task Force investigating the Sandusky scandal.As part of that investigation, PSU engaged attorneys.Specifically, the Board hired Freeh to be counsel to the Task Force, and hired the law firm of Reed Smith as special counsel to advise the Board as to various matters arising out of the allegations regarding misconduct by senior administration officials and Sandusky.

Pursuant to his role overseeing PSU, the Secretary received records pertaining to the PSU Board.As a Board member, the Secretary falls under the client...