Legrande v. Department of Corrections

• Decision Date: 30 March 2007
• Docket Number: No. 1637 C.D. 2006.,1637 C.D. 2006.
• Citation: 920 A.2d 943
• Parties: Robert Anthony LeGRANDE, Petitioner v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Pennsylvania Commonwealth Court

920 A.2d 943

Robert Anthony LeGRANDE, Petitioner v.DEPARTMENT OF CORRECTIONS, Respondent.

No. 1637 C.D. 2006.

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 8, 2006.

Decided March 30, 2007.

Robert Anthony LeGrande, petitioner, pro se.

Vincent R. Mazeski, Asst. Counsel and Suzanne N. Hueston, Acting Chief Counsel, Camp Hill, for respondent.

BEFORE: McGINLEY, Judge, COHNJUBELIRER, Judge, and KELLEY, Senior Judge.

OPINION BY Judge COHNJUBELIRER.

The Petitioner, Robert Anthony LeGrande, pro se, challenges the order of the Department of Corrections(DOC) denying his request, under what is commonly referred to as the Right to Know Law (Law),¹ to access DOC's Sentence Computation Procedures Manual (Manual).While LeGrande raises three issues before this Court, his first issue will ultimately be dispositive in this case: whether LeGrande's request to obtain the Manual falls within the ambit of a "public record" for purposes of Section 1 of the Law.

In April 2006, LeGrande sent a letter to Nelson Zullinger, DOC's Right-to-Know Officer, requesting copies of the Manual associated with DOC Policy 11.5.1, entitled "Records Office Operation."²(DOC Final Determination at 1, July 24, 2006, R. at 10.)Zullinger denied LeGrande's request in May 2006 and found the Manual, while arguably a public record, fell within the personal security exception under Section 1 of the Law, 65 P.S. § 66.1.LeGrande timely appealed Zullinger's decision to John Shaffer, DOC's Right-to-Know Exceptions Officer, arguing the Manual is subject to disclosure as a public record since it impacts both due process and liberty interests, and due to its public nature, the Manual does not implicate the personal security or reputation exceptions under the Law.

In response to LeGrande's appeal, Zullinger drafted a letter to Shaffer in June 2006, and admitted that Zullinger's office committed an error in its May 2006 decision by finding the Manual fell within the personal security exception.Zullinger now clarified that the Manual is not a public record, and "unlike virtually every other Procedures Manual, the reason that the [Manual] is not subject to the [Law] is that it is protected by the attorney work product doctrine and the attorney-client privilege."(Letter from Zullinger to Shaffer, June 5, 2006, at 1, R. at 4.)In his letter, Zullinger also described the creation and content of the Manual, which we quote at length:

The [Manual] in question was created by the Department's legal counsel to provide legal advice to the Department on an ongoing issue.The Department quite regularly makes determinations on sentencing, and the Manual was created by legal counsel to advise Department staff in understanding the laws in question.It simply contains the legal counsel's interpretation of sentencing law and legal advice as to how the law should be applied, as well as interpretations of relevant cases.Quite clearly, this Manual contains only the Department's legal counsel's mental impressions, legal research, conclusions and opinions respecting strategy and tactics, as well as their legal theories, for dealing with the calculation of inmate sentences.

(Letter from Zullinger to Shaffer, June 5, 2006, at 2, R. at 4.)Because of the initial error, Zullinger requested Shaffer to give LeGrande an additional opportunity to address the two new rationales of denial.

Subsequently, Shaffer issued an Interim Order outlining a timetable for LeGrande to respond to Zullinger's June 2006 letter before Shaffer issued a final determination.LeGrande agreed to the terms of the Interim Order and filed a timely response in July 2006.In his response, LeGrande argued that the Manual is not protected from disclosure by either the attorney-client privilege or the work product doctrine.

On July 24, 2006, Shaffer issued a final determination affirming the denial of LeGrande's access to the Manual.Citing this Court's decision in Arduino v. Borough of Dunmore,720 A.2d 827(Pa. Cmwlth.1998), Shaffer determined that because legal opinions from attorneys in an advisory capacity are exempted from the definition of a public record under the Law, the Manual similarly does not amount to a public record.Further, Shaffer found the Manual amounts to attorney work product, which does not qualify as a public record, and LeGrande's assertion of waiver fails to apply here since a prior disclosure of the Manual cannot convert the Manual from being outside the reach of the Law to a record subject to the Law.Additionally, Shaffer determined the Manual is also protected under the attorney-client privilege.He recognized that Zullinger had a sufficient basis to invoke the privilege, and the record fails to support any waiver of the privilege.Lastly, Shaffer determined the burden of proof falls on LeGrande to demonstrate that disclosure of the Manual would not violate the attorney-client privilege.This petition for review followed.³

Generally, the Law mandates that "a public record shall be accessible for inspection and duplication by a requester in accordance with this [Law]."65 P.S. § 66.2(a).Section 1 of the Law extensively defines the term "public record" and provides exceptions to the definition as well:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records" shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

65 P.S. § 66.1.

The burden of proof is placed on the requesting party to establish that the documents sought are public records under the Law.Rowland v. Public School Employees' Retirement System,885 A.2d 621, 627(Pa.Cmwlth.2005), petition for allowance of appeal denied,587 Pa. 703, 897 A.2d 462(2006).To establish a particular item as a public record under Section 1 of the Law, the requesting party must demonstrate that it is: (1) developed by an agency covered by the Law; (2) a minute, order, or decision of a covered agency, or an essential component to an agency decision; (3) a document that fixes the personal rights, property rights, or duties of an individual or individuals; and (4) not otherwise protected by statute, order, or decree of court.Id.To effectuate appellate review, the agency must "provide sufficiently detailed information concerning the contents of the requested document to enable a reviewing court to make an independent assessment of whether it meets the statutory requirements for mandatory disclosure."LaValle v. Office of General Counsel,564 Pa. 482, 499 n. 13, 769 A.2d 449, 459 n. 13(2001).Here, the dispute surrounds factors (2) and (4); more specifically, the parties contest whether the Manual amounts to an essential component of DOC's sentencing computation or, assuming that it is, whether the Manual is otherwise protected by the work product doctrine or attorney-client privilege.

Before this Court, LeGrande argues that the Manual clearly constitutes an essential component of DOC's decision making regarding the implementation of sentencing.Because the Manual impacts the rights to due process and liberty, LeGrande claims the Manual does not fall under the enumerated exceptions of the Law.Further, LeGrande asserts the Manual is, in effect, an established policy which governs the actions of DOC officials, and such a policy does not implicate either the work product doctrine or the attorney-client privilege since it is no longer a deliberative document.Assuming the work product doctrine and the attorney-client privilege apply, LeGrande contends that DOC waived both protections when DOC previously released the Manual to a third party.LeGrande also notes that DOC merely asserted the protections without properly establishing them.Lastly, LeGrande claims he is entitled to attorney fees and costs under Section 4.1 of the Law⁴ since DOC acted willfully and, with wanton disregard, deprived LeGrande access to the Manual.

The Pennsylvania Supreme Court has elaborated on the definition of a public record and articulated what a requester must demonstrate in order to establish a "minute, order or decision" under the Law.In North Hills News Record v. Town of McCandless,555 Pa. 51, 722 A.2d 1037(1999), the Court held a requester "must demonstrate a close relationship between [the] requested material and an actual agency minute, order or decision fixing some right or duty."Id. at 58, 722 A.2d at 1040.The requester in McCandless sought to access an audio tape recording of a telephone call to an emergency center reporting a shooting.The requester claimed the audio tape formed the basis for the municipality's decision to dispatch emergency personnel and prosecute the perpetrator.Id.The Court rejected the requester's argument, holding that the connection between the conversation on the audio tape and the decision to dispatch services was "speculative and...