Cnty. of Berks v. Pa. Office of Open Records

• Decision Date: 03 January 2019
• Docket Number: No. 170 M.D. 2018,170 M.D. 2018
• Citation: 204 A.3d 534
• Parties: COUNTY OF BERKS, Petitioner v. PENNSYLVANIA OFFICE OF OPEN RECORDS and ALDEA - The People's Justice Center, Respondents
• Court: Pennsylvania Commonwealth Court

204 A.3d 534

COUNTY OF BERKS, Petitioner

v.PENNSYLVANIA OFFICE OF OPEN RECORDS and ALDEA - The People's Justice Center, Respondents

No. 170 M.D. 2018

Commonwealth Court of Pennsylvania.

Argued September 14, 2018

Decided January 3, 2019

Publication Ordered March 7, 2019

J. Chadwick Schnee, Reading, for petitioner.

Charles Rees Brown, Chief Counsel, Harrisburg, for respondent Office of Open Records.

Karen Hoffman, Reading, for respondent ALDEA – The People's Justice Center.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge¹

OPINION BY SENIOR JUDGE COLINS

Before this Court are the preliminary objections filed by the Office of Open Records (OOR) and ALDEA - The People's Justice Center (ALDEA) to the petition for review filed by the County of Berks (County) asserting two claims in this Court's original jurisdiction and a third claim seeking that this Court exercise its ancillary jurisdiction pursuant to Section 761(c) of the Judicial Code, 42 Pa. C.S. § 761(c), to conduct an appellate review of the County's appeal from an OOR Final Determination ruling on a request by ALDEA for records of the County. For the reasons that follow, we grant OOR's first and second preliminary objections and ALDEA's first preliminary objection, dismiss Counts I and II of the petition for review and transfer Count III to the Court of Common Pleas of Berks County.

On July 27, 2017, ALDEA filed a request with the County pursuant to the Right-to-Know Law² (RTKL) identifying six categories of records that it sought from the County related to the Berks County Residential Center (BCRC), an immigrant family detention facility. (OOR Certified Record (C.R.) Item 1.) In Items 1 to 4 of the request, ALDEA sought correspondence concerning complaints by or related to four private attorneys and one paralegal that related to conditions at BCRC. (Id. ) In addition, Item 5 of the request sought video recordings of the BCRC visitation area on the evening of May 23, 2017, while Item 6 of the request sought any correspondence between BCRC and any other party regarding the identified attorneys and paralegal. (Id. )

On September 22, 2017, the County responded to ALDEA, asserting that it lacked any documents responsive to Items 1, 4 and 5 of the request and that Item 6 of the request was insufficiently specific to allow the County to respond. (C.R. Item 1.) With respect to Items 2 and 3 of the Request, the County stated that, to the extent any such documents existed, they would be exempt from disclosure because they related to a non-criminal investigation, related to internal, pre-decisional deliberations of an agency, were protected by the attorney-client privilege or constituted attorney work product. (Id. ) Notwithstanding its responses, the County produced certain records to ALDEA that were not identified as being responsive to any specific item in ALDEA's request. (Id. )

ALDEA appealed the County's failure to produce responsive records to the OOR. (C.R. Item 1.) During the course of the appeal, the OOR Appeals Officer requested an exemption log as to the nine records withheld with respect to Item 2 of the request. (C.R. Item 6.) In its exemption log, the County objected to the disclosure of the records on the basis that they contained internal, pre-decisional deliberations and were protected by the attorney-client privilege. (C.R. Item 7.) The Appeals Officer then issued an order requiring that the County submit these nine records for in camera review. (C.R. Item 9.) The order provided that pursuant to OOR's interim procedural guidelines, the records would be stored in a secure location and would not be "disclosed to any person other than the appeals officer, the Executive Director or OOR staff counsel." (Id. ) The County objected to this order, raising arguments that OOR lacks the authority to issue sua sponte orders requiring the submission of documents for in camera review and that the review of such documents by non-lawyer OOR staff would be unlawful; nevertheless, the County ultimately submitted the records as ordered by the Appeals Officer.³ (C.R. Items 10, 12.) The County also raised the argument during the proceedings before the Appeals Officer that OOR lacked jurisdiction over ALDEA's appeal because Section 406 of the act commonly known as The County Code⁴ governed access to the minute books and other fiscal records of a county and the RTKL was therefore inapplicable. (C.R. Items 4, 7, 10, 12, 16.)

On February 9, 2018, the Appeals Officer issued a Final Determination that denied in part and granted in part ALDEA's appeal. The Appeals Officer concluded that the County had demonstrated that no records exist responsive to Items 1, 4 and 5 of the Request, Item 6 of the Request is insufficiently specific and that certain records responsive to Item 2 were protected by the attorney-client privilege or reflected internal, pre-decisional deliberations and were thus exempt. (Final Determination at 6-12, 15-16.) The Appeals Officer granted ALDEA's appeal in part, finding that other requested documents responsive to Item 2 of the Request were not protected by privilege or otherwise exempt under the RTKL and therefore were required to be produced to ALDEA. (Id. at 11-15.) In addition, the Appeals Officer ruled that Section 406 of The County Code did not bar the release of documents because that provision does not explicitly state that county records are not subject to public access under the RTKL and, in any event, the requested records are not fiscal records as to which Section 406 applies. (Id. at 5-6.) The County sought reconsideration of the Final Determination, which was denied on February 23, 2018. On March 11, 2018, ALDEA filed an appeal from the Final Determination in the Court of Common Pleas of Berks County.

The County filed this petition for review on March 9, 2018, identifying OOR and ALDEA as respondents and asserting three counts. Counts I and II are claims for declaratory relief. In Count I, the County seeks a declaratory judgment that the provision in The County Code allowing for access to meeting minutes and fiscal documents is in conflict with the RTKL and therefore, pursuant to Section 3101.1 of the RTKL, 65 P.S. § 67.3101.1,⁵ The County Code preempts the RTKL with respect to public records requests made to counties. Count II seeks declaratory judgment and injunctive relief with respect to OOR's in camera review practices based on claims that OOR lacks authority under the RTKL to issue an order requiring that records be submitted for in camera review sua sponte and that the practices violate the legislative scheme set forth in the RTKL and the Supreme Court's exclusive authority to regulate the practice of law under the Pennsylvania Constitution. In Count III, the County requests that the Court invoke its ancillary jurisdiction to review the County's appeal of the Final Determination in conjunction with this Court's consideration of the County's two original jurisdiction claims. In that appeal, the County raises the same argument as it does in Count I, that OOR erred by ruling that The County Code does not preempt the RTKL.⁶

OOR filed three preliminary objections to the petition for review. In the first objection, OOR argues that Count I should be dismissed because the County has an adequate statutory remedy under the RTKL of an appeal to the court of common pleas in which it can argue that The County Code preempts RTKL requests to counties. The second objection is a demurrer to Count II. Finally, OOR objects to certain statements in paragraph 59 of the petition for review on the grounds that they are scandalous and impertinent matter.

ALDEA filed five preliminary objections. Three of these objections are to Count III of the petition. First, ALDEA argues that this Court lacks jurisdiction to consider Count III and that it will not serve judicial economy to consider the County's appeal here as ALDEA already filed an appeal in the Court of Common Pleas of Berks County. Second, ALDEA challenges Count III for insufficient specificity of pleading. Third, ALDEA asserts that the County has failed to exhaust its statutory remedy with respect to Count III of appealing the Final Determination to the court of common pleas. ALDEA also filed an objection to Count I in the nature of a demurrer, arguing that the County's sweeping view of The County Code preempting RTKL requests to counties fails as a matter of law. Finally, ALDEA argues that it was improperly joined as a party to this action because OOR is the true party in interest and ALDEA has no role in providing redress to the County.⁷

We first address OOR's preliminary objection to Count I of the petition for review based on the failure to exhaust the statutory remedy under the RTKL of an appeal of a Final Determination to the court of common pleas. It is undisputed that this Court has original jurisdiction over claims against OOR for declaratory relief. 42 Pa. C.S. § 761(a)(1) (providing for original jurisdiction over civil actions against the Commonwealth government); Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1233 (2014) (OOR is a Commonwealth agency and "is therefore subject to the original jurisdiction of the Commonwealth Court in any action properly brought against it," including a declaratory judgment action). Nevertheless, we conclude that Count I is barred by the County's failure to exhaust its statutory remedies.

Pursuant to the doctrine of exhaustion of statutory remedies,⁸ a party must exhaust all remedies before invoking this Court's jurisdiction to challenge a final agency adjudication. East Coast Vapor, LLC v. Pennsylvania Department of Revenue , 189 A.3d 504, 509-10 (Pa. Cmwlth. 2018) (en banc ); Keystone ReLeaf LLC v. Pennsylvania Department of Health , 186 A.3d 505, 513 (Pa. Cmwlth. 2018) (en banc ). In addition, the doctrine of exhaustion of remedies is codified in the Declaratory Judgments...