Levy v. Senate of Pennsylvania

• Decision Date: 06 October 2011
• Citation: 34 A.3d 243
• Parties: Marc LEVY, Petitioner v. SENATE of Pennsylvania, Respondent.
• Court: Pennsylvania Commonwealth Court

34 A.3d 243

Marc LEVY, Petitioner

v.SENATE of Pennsylvania, Respondent.

Commonwealth Court of Pennsylvania.

Argued May 11, 2011.Decided Oct. 6, 2011.

Gayle Chatilo Sproul, Philadelphia, for petitioner.

Matthew Hermann Haverstick and Mark Edward Seiberling, Philadelphia, for respondent.

BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and PELLEGRINI, Judge, and SIMPSON, Judge, and BUTLER, Judge.¹OPINION BY Judge SIMPSON.

In this Right–to–Know Law (Law) ² appeal from a partial denial (redaction) of legislative records ³ of the Senate of Pennsylvania, we are asked whether the attorney-client privilege shields the names of clients and descriptions of legal services in bills presented to the Senate for reimbursement. In particular, Marc Levy appeals the decision of the Senate Appeals Officer which directed the Senate either to provide affidavits supporting the assertion of the attorney-client privilege or to provide the requested records “revealing the identity of the clients and any purpose for which the various attorneys are engaged.” Pet'r's Br., App. A at 14 (Senate Appeals Officer, Final Determination Order, 9/16/10).

I. Background

At issue are two requests. The first sought “all bills, contracts and payment records relating to the hiring of any outside lawyer or law firm to represent Sen. Robert J. Mellow beginning Jan. 1, 2009.” Reproduced Record (R.R.) at 2a. The second request sought the same records regarding “any current or former employee of the Senate Democratic caucus.” R.R. at 1a.

The Senate Open Records Officer responded to the requests and provided about 100 pages with redactions. Specifically, the Senate produced five sets of financial records relating to five clients employed by the Senate who, pursuant to the Senate Committee on Management Operations (COMO) Policy for the Payment of Legal Services, were provided with outside counsel.

The reason for the redactions was stated to be “the attorney-client privilege.” R.R. at 3a. Primarily, the names of the five clients and the description of legal services provided to them were redacted. Other information in the financial records was available.

Levy appealed the partial denial to the Senate Appeals Officer, taking the position that the redacted information was not privileged. The parties submitted memoranda. In its memorandum, the Senate addressed the attorney-client privilege, and it also discussed the work product privilege, grand jury secrecy, and an exemption relating to a criminal investigation. See Section 708(b)(16) of the Law, 65 P.S. § 67.708(b)(16).

In an opinion accompanying his final determination, the Senate Appeals Officer discussed the attorney-client privilege at length.⁴ He reviewed copies of the redacted records to determine whether the criteria necessary for the attorney-client privilege were present. He concluded that most of the criteria were present, but it was impossible to determine whether or not the communications of identity and the purpose for which the attorney was being engaged were made “without the presence of strangers” and “not for the purpose of committing a crime or tort.” Final Determination, September 16, 2010 at 8. Because the attorney-client privilege deserves the utmost deference, he ordered that the Senate could remedy the lack of objective indicia by providing supplemental affidavits.

The Senate Appeals Officer also addressed Levy's argument that any privilege was waived because the bills for legal services were submitted to the Chief Clerk of the Senate for the purpose of paying the legal fees. He concluded that such intra-Senate type communications may retain a privileged status and be shared with employees on a “need-to-know” basis. The Chief Clerk is an elected officer of the Senate, and it is well within his duties to receive copies of the records and make payment of the legal fees incurred by the Senate on behalf of its members and employees. In the absence of some indication of waiver on the face of the records, they retain their privileged status.

Unfortunately, the Senate Appeals Officer did not specify a time within which to produce supplemental affidavits or unredacted records. On Friday, October 15, 2010, which was the twenty-ninth day after the final determination was mailed, Levy appealed to this Court. At that point, neither supplemental affidavits nor unredacted records had been produced by the Senate. Pursuant to Section 1301(b) of the Law, 65 P.S. § 67.1301(b), the appeal stayed release of documents.

II. Appeal

A. Generally

While the appeal was pending in this Court, the Pennsylvania Supreme Court rendered an important decision on the attorney-client privilege, Gillard v. AIG Insurance Company, 609 Pa. 65, 15 A.3d 44 (2011). The holding in that case essentially broadened the attorney-client privilege to cover not only confidential client-to-attorney communications but also confidential attorney-to-client communications made for the purpose of obtaining or providing professional legal advice. Id. at 85, 15 A.3d at 59. Although the case did not deal with bills for legal services or the identities of clients, the Supreme Court's analysis is useful here and will be discussed below.

After appellate argument, and in an effort to untie the procedural knot arising from the timing of the appeal and the application of an automatic stay, we entered a case management order which allowed the Senate to file a supplemental affidavit as ordered by the Senate Appeals Officer within 10 days. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) ( en banc ), appeal granted, 609 Pa. 265, 15 A.3d 427 (2011) (reviewing court may supplement record to ensure adequate review; court should consider manner of proceeding most consistent with justice, fairness and expeditious resolution). The affidavit was timely filed, and it is appended to this decision as Attachment A.

In addition, we ordered production of unredacted records for in camera judicial review. See Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa.Cmwlth.2010) (court conducted in camera review of incident reports to determine whether exception under the Law applied); Bowling (Law does not expressly prohibit in camera review); see also Gillard (trial court conducted in camera review of documents subject to asserted privilege on the record and in presence of counsel; in camera judicial review provides essential check against possibility for abuse of privilege). In camera judicial review was undertaken by Senior Judge James R. Kelley, acting as special master for the en banc panel. His report was filed under seal on July 25, 2011. Although the unredacted records shall remain under seal, the report is UNSEALED, and it is appended to this decision as Attachment B. His recommendations are accepted and entered as supplemental findings and conclusions by the en banc panel. His recommendations are discussed below.

In an appeal to this Court under Section 1301 of the Law, 65 P.S. § 67.1301 (pertaining to Commonwealth, legislative and judicial agencies), we act in our appellate jurisdiction, but we independently review the appeals officer's orders, and we may substitute our own findings of fact. Bowling. Further, we exercise the broadest scope of review. Id. The issue of whether the attorney-client privilege protects a particular communication from disclosure is a question of law. Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa.Super.2007), aff'd on other grounds by an equally divided court, 605 Pa. 468, 992 A.2d 65 (2010). For any question of law, this Court's standard of review is de novo and our scope is plenary. Id.

B. Contentions

Generally, Levy contends the Law establishes a presumption of public access to government records, especially, as here, to records relating to the expenditure of public funds. The Senate bears the burden of rebutting that presumption and establishing a lawful basis for redaction, but it failed to carry its burden.

More specifically, Levy argues that the attorney-client privilege does not shield from disclosure the identities of public employees who receive publicly funded legal representation or the nature of the services provided at public expense. Citing pre- Gillard cases, Levy argues the Senate's blanket redaction conflicts with established Pennsylvania privilege law, which protects attorney-to-client communications only when those communications reflect the confidential client-to-attorney communications. Levy also seeks to distinguish two Commonwealth Court cases addressing redactions of the description of legal services in bills, Board of Supervisors of Milford Township v. McGogney, 13 A.3d 569 (Pa.Cmwlth.2011), appeal denied, ––– Pa. ––––, 24 A.3d 364 (2011), and Schenck v. Township of Center, Butler County, 893 A.2d 849 (Pa.Cmwlth.2006).

Further, Levy contends that the Senate misstates the narrow circumstances where client identities may be privileged. The Senate did not establish those narrow circumstances here.

In addition, Levy argues that the unidentified clients waived any privilege by seeking reimbursement from the third-party Senate.

In addition to his primary arguments, Levy makes other points. He generally contends that the Senate's alternate arguments (work product, grand jury secrecy and investigative exemption) are unpersuasive. Also, he decries the tenor of the Senate's written argument.⁵

In its spirited written arguments on the merits, the Senate contends that this Court should conclude as a matter of law that the attorney-client privilege applies to protect client identities and the purpose or reasons why various attorneys were engaged. Relying on McGogney, Schenck and two advisory opinions from the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, the Senate argues that Pennsylvania law protects the information redacted here.

Also, the Senate acknowledges the general rule that attorney billing records are...