Levy v. Senate of Pa.

• Decision Date: 24 April 2013
• Citation: 65 A.3d 361
• Parties: Marc LEVY, Appellee v. SENATE OF PENNSYLVANIA, Appellant.
• Court: Pennsylvania Supreme Court

65 A.3d 361

Marc LEVY, Appellee

v.SENATE OF PENNSYLVANIA, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 16, 2012.

Decided April 24, 2013.

Emily J. Leader, PA School Boards Association, Inc., for PA School Board Association, Amicus Curiae.

Matthew Hernan Haverstick, James J. Rohn, Mark Edward Seiberling, Joshua Jon Voss, Conrad O'Brien PC, Philadelphia, for Appellant.

Rodney A. Corey, Harrisburg, James Guthrie Mann, PA House of Representatives, Tara Lynn Smith, Pittsburgh, for Republican and Democratic Caucuses of PA House of Representatives, Appellant Amicus Curiae.

Dennis A. Whitaker, Harrisburg, for Governor's Office of General Counsel, Appellant Amicus Curiae.

Paul Joseph Safier, Levine Sullivan Koch & Schultz, L.L.P., Philadelphia, Chad R. Bowman, Gayle Chatilo Sproul, Philadelphia, for Appellee.

Trent A. Echard, David Alan Strassburger, Strassburger, McKenna Gutnick & Gefsky, Pittsburgh, for Trib Total Media Inc., Appellee Amicus Curiae.

Melissa Bevan Melewsky, PA Newspaper Association, Pennsylvania Newspaper Association, Appellee Amicus Curiae.

Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice BAER.

In this appeal, we consider the interaction of the attorney-client privilege and the Right–to–Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104 (“RTKL”), in a case involving a journalist's request for documents relating to the legal representation of Senate Democratic Caucus employees. After review, we reaffirm the general rule that client identities are not protected by the attorney-client privilege but adopt specified exceptions to this general rule. Similarly, we affirm the Commonwealth Court's determination that general descriptions of legal services included in attorney invoices are not covered by the umbrella of the attorney-client privilege but that specific descriptions that would reveal attorney-client communicationsare protected. Additionally, we reverse the Commonwealth Court and overturn its decision in Signature Information Solutions, LLC. v. Aston Township, 995 A.2d 510 (Pa.Cmwlth.2010), to the extent it determined that any reasons for denial not raised in the initial written denial of a RTKL request are waived and cannot be raised at a later stage of the RTKL process.¹

I. Background

On June 22, 2010, Associated Press member Marc Levy sent two written requests to the Senate's Right to Know Officer seeking “all bills, contracts and payment records related to the hiring of any outside lawyer or law firm to represent Sen. Robert J. Mellow beginning Jan. 1, 2009” and the same documents related to “any current or former employee of the Senate Democratic caucus beginning Jan. 1, 2009.” Letters of Marc Levy, June 22, 2010 (“Request”). The requests came a few days after the media reported that federal authorities executed search warrants on Senator Mellow's home and office as part of a grand jury investigation.

The Senate Open Records Officer responded on August 3, 2010, providing documents “relating to legal services provided to Senator Mellow or any employee of Senator Mellow beginning 1/1/2009.” ² Letter of W. Russell Faber, Aug. 3, 2010 (“Written Denial”). The cover letter, however, stated that the documents had been redacted to protect portions of the documents which the Open Records Officer contended were covered by the attorney-client privilege in accordance with Section 305(b) of the RTKL, which provides that records shall not be presumed to be public records subject to disclosure if “the record is protected by a privilege.” 65 P.S. § 67.305(b)(2). The Senate supplied documents relating to five clients, totaling nearly one hundred pages, many of which were invoices from various law firms reflecting the attorney or paralegal's initials, dates and hours worked, and fees charged. However, large blocks of the documents were redacted, presumably involving itemized descriptions of the work and the clients' names.

On August 11, 2010, Levy appealed the redactions to the Senate Appeals Officer, who hears RTKL appeals relating to the Senate and serves the role that the Office of Open Records (“OOR”) provides for most other Commonwealth agencies. Levy asserted that the “redactions seem to apply to [the] identity of the client and, possibly, the reason for which the attorney is being hired. That information is not considered under the umbrella of a ‘work product’ or a ‘privilege.’ ” Appeal Letter of Marc Levy, Aug. 11, 2010 (“Appeal Letter”). He contended that the RTKL's “intent of transparency in government is to help ensure [that] citizens can determine whether their tax money is spent lawfully.” Id. He argued that redacting the client identity and the reason for the legal services“renders such a determination impossible.” Id.

On August 12, 2010, the Senate Appeals Officer, who is also the Secretary of the Senate, set a timeframe for the parties to file a memorandum of law or other documentation. While the previous filings in the case were brief letters, on August 19, 2010, the Senate filed a lengthy “Senate Response to the RTK Appeal.” In this filing, the Senate observed that the RTKL provides for redaction of documents under Section 706, 65 P.S. § 67.706 (“the agency shall redact from the record the information which is not subject to access”). While the Senate reasserted its claim that the redactions were necessary to protect the attorney-client privilege, it also asserted, for the first time, that some of the redacted portions were protected from disclosure due to the work product privilege, grand jury secrecy, and the criminal investigation exception of Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16).

Levy likewise responded with a lengthy letter brief. Levy emphasized that the RTKL places the burden on the Senate to prove the application of any exception. Moreover, he observed that there is a presumption of disclosure for public records, including financial documents, in the RTKL. In response to the Senate's attorney-client privilege argument, Levy contended that the rule in Pennsylvania and elsewhere provides that a client's identity and billing records are not protected unless disclosure would reveal confidential communications between the client and attorney. Levy further addressed and rejected the merits of the Senate's claims that the documents were not subject to disclosure due to the work product privilege, grand jury secrecy, and the criminal investigation exception, the merits of which are not relevant to this appeal.

On September 16, 2010, the Senate Appeals Officer made his final determination. The Officer observed that under Pennsylvania law, the party asserting the attorney-client privilege has the burden to prove that the privilege has been properly invoked. In accord with that prerequisite, the Officer concluded that the Senate had demonstrated that each of the asserted holders of the privilege sought to become a client of an attorney, communicated that to an attorney, and that all of the clients were asserting rather than waiving the privilege. The Officer, however, could not determine whether the Senate had demonstrated the other necessary criteria for attorney-client privilege: whether the communication of the client seeking the attorney's representation was made “without the presence of strangers” and “not for the purpose of committing a crime or tort.” ³ Final Determination of Sept. 16, 2010, at 8. As a result, the Senate Appeals Officer provided the Senate with the opportunity to provide sworn affidavits or other probative evidence to address those issues but did not set a date by which the Senate had to file the ordered documents. The Officer also noted that the Senate raised additional reasons for the redactions based on the work product privilege, grand jury secrecy, and criminal investigation exceptions. He concluded, however, that the Senate failed to demonstrate the necessary factual predicate for assertion of those exceptions.

On October 15, 2010, when the Senate had not filed any additional documents, Levy filed a Petition for Review in the Commonwealth Court asking the court to reverse that portion of the Senate Appeals Officer's Final Determination in which he concluded that “portions of billing records containing the names of Senate clients and descriptions of legal services performed on their behalf are protected by the attorney-client privilege.” Levy's Petition for Review at 4. Following a volley of filings seeking to strike portions of briefs and alert the Commonwealth Court to this Court's recent decision in Gillard v. AIG Insurance Co., 609 Pa. 65, 15 A.3d 44 (2011) (holding that the attorney-client privilege applied to communications from attorney to client as well as from client to attorney), the Commonwealth Court entered an order instructing the Senate to file the affidavits and documents ordered in the Senate Appeals Officer's Final Determination. Additionally, the court ordered the Senate to “bring to the Court for in camera review unredacted copies of all records at issue.” Commonwealth Court Order of May 31, 2011. The Commonwealth Court appointed Senior Judge Kelley as a special master to review the documents.

The Senate filed an application for clarification of the May 31st order to determine if it could satisfy the order by filing one affidavit from “a person with knowledge” or if it must file one affidavit per client.⁴ Following the court's order approving the filing of a single affidavit, the chief counsel for the Senate Democratic Caucus filed an affidavit asserting that the redacted communications in the records of each of the five clients were made in the absence of strangers and were not made for the purpose of committing a crime or tort. He further asserted that the redactions were limited to “client identity and the purpose or reasons why various attorneys were engaged in order to protect information subject to the attorney-client privilege, the...