Haverstick v. Pa. Office of Attorney Gen.
| Decision Date | 12 April 2022 |
| Docket Number | 1213 C.D. 2020 |
| Citation | 273 A.3d 600 |
| Parties | Matthew HAVERSTICK, Petitioner v. PENNSYLVANIA OFFICE OF ATTORNEY GENERAL, Respondent |
| Court | Pennsylvania Commonwealth Court |
James G. Gorman, III, Philadelphia, for Petitioner.
Michael J. Scarinci, Deputy Attorney General, Harrisburg, for Respondent.
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE McCULLOUGH
Matthew Haverstick (Requester) petitions for review of the October 30, 2020 final determination of a Right-to-Know Law (RTKL)1 Appeals Officer of the Pennsylvania Office of Attorney General (OAG), which affirmed the decision of an OAG Open Records Officer to grant in part and deny in part his RTKL request.2 Requester presently challenges the withholding of certain ex parte communications between members of the OAG and the OAG Appeals Officer. Upon review, we reverse the final determination of the OAG Appeals Officer.
On June 23, 2020, the OAG received a RTKL request from Requester, seeking:
From March 12, 2020[,] onward, any and all emails, text messages, or other communications about any Right to Know request, or any response thereto from this Request[e]r, including but not limited to, Request No. 2020-051.
(OAG Appeals Officer Determination at 1.)
On August 6, 2020, the OAG Open Records Officer issued a final response letter, which granted in part and denied in part Requester's request. The Open Records Officer informed Requester that certain records would be produced upon receipt of all applicable fees. A number of records, however, would be withheld pursuant to exemptions from disclosure listed in the RTKL, specifically: (1) the personal identification information exemption; (2) the predecisional deliberation exemption3 ; and (3) the attorney-work product doctrine.
On August 20, 2020, Requester paid the applicable fees. On August 31, 2020, having not yet received the requested records from the OAG, Requester filed an appeal to the OAG, in which he asserted that he could not evaluate the merits of the OAG's response because he had not received the documents. He further contended that the exemptions cited by the Open Records Officer were not adequately supported by an affidavit.
The Appeals Officer for OAG acknowledged receipt of Requester's appeal via a letter dated September 8, 2020, and then set a schedule for the submission of additional documentation. On September 14, 2020, the Open Records Officer submitted a response to the appeal, including an affidavit from the Open Records Officer in support of the redactions and withholdings. On September 21, 2020, Requester submitted a supplemental position statement and included the OAG's full production, including the redacted documents. Requester asserted that the RTKL Officer's affidavit was insufficient to support the OAG's claimed exemptions. Requester requested that the Appeals Officer order the Open Records Officer to produce a privilege log and to review the materials in camera . The Appeals Officer agreed and, by letter dated September 28, 2020, informed the parties that in camera review of the documents would be necessary to render a final determination on the appeal.
On September 29, 2020, the Open Records Officer provided the Appeals Officer with the relevant documents—those withheld in their entirety and the unredacted versions of those which had been disclosed in redacted form. On September 30, 2020, the Appeals Officer requested that the Open Records Officer submit a privilege log of the redacted and withheld documents. On October 7, 2020, the Open Records Officer provided the Appeals Officer with two privilege logs—one for the redacted documents and one for the withheld documents.
On October 14, 2020, Requester provided a supplemental submission (entitled "Reply Brief"), in which he raised concerns about apparent ex parte communications between the Appeals Officer and members of the OAG.
The Appeals Officer ultimately denied Requester's appeal. The Appeals Officer first rejected Requester's argument regarding the sufficiency of the supporting affidavit, noting that she performed an in camera review of the relevant documents, thus rendering the sufficiency of the affidavit immaterial. With regard to the documents that were redacted, the Appeals Officer observed that the redacted information consisted of personal identification information, namely personal telephone numbers and email addresses. Those redactions were thus proper.
Turning to the 98 documents withheld in their entirety, the Appeals Officer concluded that the Open Records Officer correctly determined that each document reflected internal, predecisional deliberations, and was thus exempt from disclosure under section 708(b)(10)(i)(A) of the RTKL. Each document contained "communications that were made for the purpose of considering all available legal strategies and options for responding to Request No. 2020-051 and its appeal, including documents/communications regarding the best course of action in responding" to that request and appeal. (OAG Appeals Officer Determination at 5.) The Appeals Officer stated that her in camera review of the documents confirmed this characterization of the records. The Appeals Officer further identified six documents that were not listed on the privilege log for the withheld documents, but likewise reflected internal, predecisional deliberations. The Appeals Officer concluded that this omission was an error. Moreover, the Appeals Officer concluded that 10 of the withheld documents were protected by the attorney-work product doctrine because her in camera review revealed that each document contained draft documents, such as affidavits or legal responses, written by an OAG attorney and circulated to other OAG attorneys. Id. at 6-7. Thus, the Appeals Officer found no error in the RTKL Officer's conclusion that each withheld document was exempt from disclosure.
With regard to the issue currently before the Court, the Appeals Officer noted Requester's contention that Document Nos. 2, 4, 6, 9, and 24-27 on the withheld log must be produced because they reflect ex parte communications between the Appeals Officer and members of the OAG. The privilege log stated that these documents contain correspondence between the Appeals Officer and either Karen Romano, the attorney who submitted the OAG's verification in the underlying appeal relating to Request No. 2020-051, or Sharon Maitland, the Open Records Officer in the instant case. None of those communications included Requester or his counsel.
The Appeals Officer repeated her conclusion that the referenced documents were properly withheld under the predecisional deliberation exception, and "contain communications between OAG staff regarding administrative logistics relating to the appeal of Request No. 2020-051." (OAG Appeals Officer Determination at 7.) The Appeals Officer further cited Kaplin v. Lower Merion Township , 19 A.3d 1209, 1215-16 (Pa. Cmwlth. 2011), for the proposition that a concern over ex parte communications does not negate the application of the predecisional deliberation exemption. Thus, the Appeals Officer concluded, the fact that certain documents contain ex parte communications does not necessitate their production.
Requester then sought review in this Court, specifically regarding the Appeals Officer's conclusion vis-à-vis the withholding of the ex parte communications contained within the responsive records.4
Requester contends that any ex parte communication between a RTKL appeals officer and one party's counsel is inappropriate and, therefore, forbidden. Requester cites Colosimo v. Pennsylvania Electric Company , 513 Pa. 155, 518 A.2d 1206, 1210-11 (1986), for the general proposition that ex parte communications are improper, but in the RTKL context, the only authority that he cites is Chester Community Charter School v. Hardy , 38 A.3d 1079, 1084 (Pa. Cmwlth. 2012), vacated on other grounds , 621 Pa. 115, 74 A.3d 118 (2013). (Requester's Br. at 16.) Hardy expressed disapproval of ex parte communications between an Office of Open Records (OOR) appeals officer and a requester, which concerned a deadline extension. However, the Hardy Court did not find that the ex parte communication deprived the opposing party of due process, and it did not reverse the OOR's final determination.
Requester takes issue with the Appeals Officer's reliance upon Kaplin . Although Kaplin concluded that communications between township board of commissioner members could be subject to the predecisional deliberation exemption, Requester notes that the communications at issue in Kaplin were between respondents , not between a party and a RTKL appeals officer. (Requester's Br. at 17.) Where ex parte communications are between a party and the appeals officer, Requester opines that the opposing party cannot be confident that the communications were for a proper purpose.
Further, Requester argues that ex parte communications between a RTKL appeals officer and agency members cannot constitute "internal" predecisional deliberations under section 708(b)(10)(i)(A) of the RTKL, because the appeals officer, according to Requester, is an "external" officer. The exception applies only to "internal, predecisional deliberations" that are between agency "members, employees, officials" or "between agency members, employees or officials and members, employees or officials of another agency." (Requester's Br. at 19 (quoting 65 P.S. § 67.708(b)(10)(i)(A) ).) The key element, Requester maintains, is that the communications be "internal." And according to Requester, the agency's RTKL appeals officer is "external" and "neutral," and, therefore, cannot engage in internal, predecisional deliberations with members of the agency. (Requester's Br. at 20.)
The OAG, for its part, first suggests that the communications at issue were merely "logistical in...
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