Finnerty v. Pa. Dep't of Cmty. & Econ. Dev.
| Decision Date | 25 April 2019 |
| Docket Number | No. 801 C.D. 2018,801 C.D. 2018 |
| Parties | Nolan FINNERTY, Petitioner v. PENNSYLVANIA DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, Respondent |
| Court | Pennsylvania Commonwealth Court |
Simran Dhillon, Philadelphia, for petitioner.
Scott W. Longwell, Harrisburg, for respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE COHN JUBELIRER
Nolan Finnerty (Requester) petitions for review of a Final Determination of the Office of Open Records (OOR) issued May 14, 2018, denying in part his appeal of the Pennsylvania Department of Community and Economic Development's (Department) partial denial of his request for records under the Right-to-Know Law (RTKL).1 Requester argues that OOR erred when it determined that the Department properly invoked the internal, predecisional deliberation exception as to certain records because those records were not internal to the Department but were shared with subcontractors of the Department. We disagree and conclude that these records remained "internal to the agency" because the records were exchanged between the Department and outside contractors with whom the Department had a contractual relationship to assist it in bringing the City of Chester (the City) out of financially distressed status. McGowan v. Pa. Dep't of Envtl. Prot. , 103 A.3d 374, 381 (Pa. Cmwlth. 2014).
Requester also challenges the Department's withholding of certain records under the privilege of attorney-client communications and, relatedly, the attorney work-product doctrine. However, at oral argument, the Department's Counsel represented, and Requester's Counsel agreed, that the records withheld as privileged attorney-client communications and under the attorney work-product doctrine had been disclosed to Requester. Therefore, we conclude that, as a result of that disclosure, Requester's challenges based on the attorney-client communications privilege and attorney work-product doctrine have been rendered moot, and none of the exceptions to the mootness doctrine apply.
Since 1996, pursuant to the Municipalities Financial Recovery Act2 (Act 47), the City has been determined to be a financially distressed municipality. Under Section 221 of Act 47, 53 P.S. § 11701.221, the Department is authorized to appoint and compensate a consultant who will act as a coordinator in preparing and addressing the municipality's financial problems. In February 2016, following a request for proposals (RFP), the Department entered into a contract (Contract) with EConsult Solutions Inc. (EConsult) to act as the Act 47 Coordinator for the City. (Reproduced Record (R.R.) at 111a-41a.) At the time of the Contract, EConsult had been serving as the Act 47 Coordinator for the City since September 2015 under a contract with the Department. (Id. at 338a.) Under the terms of the RFP, which were incorporated into the Contract, EConsult was responsible for implementing the Recovery Plan for the City, working closely with municipal officials, maintaining close contact with the Department and providing the Department with progress reports regarding the Recovery Plan implementation, consulting with employee collective bargaining groups, attending meetings as directed by the Department and requested by the City, consulting with state and federal agencies as necessary, and applying for grants as provided by Act 47. (Id. at 139a.) In Article XIII of the Contract, EConsult promised not to enter into any subcontract for the activities identified in the Contract without the prior written approval of the Department. (Id. at 130a.) Appended to the Contract was a budget, which allotted payment to Fairmount Capital Advisors (Fairmount), as a financial consultant, and McNees, Wallace and Nurick (McNees), as legal counsel, for subcontract work they were to perform related to EConsult's activities as Act 47 Coordinator. (Id. at 144a, 154a.) The budget stated that Fairmount and McNees would bill hourly through EConsult. (Id. )
On November 28, 2017, the Department received, via email, a request from Requester, a paralegal with the law firm of Conrad O'Brien, P.C., under the RTKL. The request consisted of 20 subparts and requested, inter alia , copies of specific records, including documents exchanged between EConsult, Fairmount, and McNees, relating to the potential monetization or privatization of the Chester Water Authority (CWA).3 (Id. at 8a-10a.)
Following statutorily invoked and agreed-upon extensions for responding, the Department issued its response, denying the request in part, on the ground that certain requested records, as pertinent to the issues raised on appeal, constituted internal, predecisional deliberations, consisting of "internal staff and contractor recommendations, comments to documents, draft proposals, and discussions that played a role in the Department's Act 47 decision making process." (Id. at 17a-18a.) Specifically, the Department withheld portions of a report dated September 22, 2017, from EConsult to the Department (EConsult Report), (id. at 70a, 299a-305a), and an attachment to an email dated November 22, 2017 (Email Attachment),4 from a McNees attorney to the Department's staff and staff of EConsult and Fairmount, (id. at 71a, 283a).
Requester filed an appeal under the RTKL with OOR, arguing that the Department had not provided sufficient information to meet its burden of showing that the withheld records were exempt from disclosure. (Id. at 4a-5a.)
In response, the Department submitted an agency affirmation from Jennifer Fogarty (Fogarty Affirmation), the Department's Open Records Officer, who affirmed as follows. McNees was hired by EConsult to provide legal services under the Contract. (Id. at 69a.) The Department and EConsult, Fogarty stated, were the clients of McNees. The Department paid McNees' legal bills for the work it performed under McNees' subcontract with EConsult. (Id. ) As to the EConsult Report, Fogarty explained redactions were made to it pursuant to the internal, predecisional deliberation exception for the following reasons:
(Id. at 70a-71a.) Fogarty stated that the EConsult Report "was created solely for" the Department, and the Department "does not share the [EConsult] Report ... with outside parties." (Id. at 70a.) As for the Email Attachment, Fogarty explained that the Department withheld it because it "is a proposed response letter addressed to [the CWA's] counsel in draft form." (Id. at 71a-72a.) Fogarty noted that the Email Attachment "was submitted to [the Department's] staff for review and comment for an action to be taken" and, therefore, was not provided pursuant to the internal, predecisional deliberation exception. (Id. at 72a.)
In a memorandum of law, Requester argued that the internal, predecisional deliberation exception did not apply to the withheld records because such records had to be internal to one agency or among other governmental agencies. EConsult, McNees, and Fairmount could not be considered agencies for the purpose of this exception. Information shared externally had to be disclosed, Requester asserted.
The OOR Appeals Officer (Appeals Officer) requested supplemental submissions...
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