Office of the Dist. Attorney of Phila. v. Bagwell

• Decision Date: 16 February 2017
• Docket Number: 473 C.D. 2016,435 C.D. 2016,2641 C.D. 2015,2627 C.D. 2015
• Citation: 155 A.3d 1119
• Parties: OFFICE OF THE DISTRICT ATTORNEY OF PHILADELPHIA, Appellant v. Ryan BAGWELL Office of the District Attorney of Philadelphia, Appellant v. Ryan Bagwell City of Philadelphia, Appellant v. Ryan Bagwell City of Philadelphia v. Ryan Bagwell Appeal of: Office of District Attorney of Philadelphia
• Court: Pennsylvania Commonwealth Court

155 A.3d 1119

OFFICE OF THE DISTRICT ATTORNEY OF PHILADELPHIA, Appellant
v.
Ryan BAGWELL

Office of the District Attorney of Philadelphia, Appellant
v.
Ryan Bagwell

City of Philadelphia, Appellant
v.
Ryan Bagwell

City of Philadelphia
v.
Ryan Bagwell

Appeal of: Office of District Attorney of Philadelphia

2627 C.D. 2015
2641 C.D. 2015
435 C.D. 2016
473 C.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs: October 7, 2016
FILED: February 16, 2017
Reconsideration Denied April 12, 2017

Douglas M. Weck, Jr., Assistant District Attorney, Philadelphia, for appellant.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE JAMES GARDNER COLINS

On February 17, 2016 Judge Linda Carpenter of the Court of Common Pleas of Philadelphia County (Trial Court) issued an opinion and order affirming the March 23, 2015 final determination of the Office of Open Records (OOR) that ordered the production of certain documents responsive to a request made by Ryan Bagwell (Requester) on September 29, 2014 (Request I) pursuant to the Right to Know Law¹ (RTKL). The City of Philadelphia (City) and the Office of the District Attorney of Philadelphia (District Attorney) appealed the Trial Court's order to this Court and the appeals, docketed at Nos. 435 and 473 C.D. 2016, were consolidated for review.

Prior to the February 17, 2016 order, Judge Carpenter of the Trial Court also issued orders on October 23, 2015 and on December 2, 2015 affirming a separate but related request for records made by Requester on October 2, 2014 (Request II), and issued a civil penalty pursuant to Section 1305(a) of the RTKL. The District Attorney appealed the October 23, 2015 and December 2, 2015 orders issued by the Trial Court to this Court and the appeals, docketed at Nos. 2627 and 2641 C.D. 2015, have been consolidated for review.

On October 7, 2016, the two sets of consolidated appeals from the Trial Court were submitted on briefs² for disposition

155 A.3d 1123

by this Court and, due to the interrelated nature of the consolidated appeals, the following opinion will address this Court's reasons for affirming the Trial Court's orders in the two consolidated appeals.³

I. Background

Request I

On September 29, 2014, Requester submitted the following enumerated request for records to the City pursuant to the RTKL:

1. a document or documents that identify all backups of the [City's] Lotus Notes e-mail system that were created between January 1, 2013, and August 31, 2013 and currently exist;

2. all policies and procedures in effect from January 1, 2013 through August 31, 2013 that pertain to the backup and archiving of the [City's] Lotus Notes e-mail system;

3. all policies pertaining to [City] Internet and e-mail use that were in effect from January 1, 2013 through August 31, 2013;

4. all letters, e-mails and memos sent to the [District Attorney] in July and August 2013 regarding the [District Attorney's] conversion from using the Lotus Notes email system to the Microsoft Exchange e-mail system;

5. all records of network traffic emanating from the workstation of [District Attorney] employee Frank Fina between July 1, 2013 and September 31, 2013, including, but not limited to, website browsing history;

6. records of inquiries from the [District Attorney] about searching the [City's] Lotus Notes and Exchange e-mail systems between July 1, 2013 and September 31, 2014;

7. all records of technical support inquiries by [District Attorney] employee Frank Fina from January 1, 2013 through September 31, 2013, and;

8. all [City] record retention policies in effect from January 1, 2013, through September 31, 2014.

(Nos. 435/473 C.D. 2016: Certified Record (C.R.) Records Request I, Reproduced Record (R.R.) at 14a (emphasis added).) Following an extension, the City denied the request as a whole as "an improper attempt to circumvent the Court's jurisdiction over the discovery process," and as relating to a judicial order, and denied Item Nos. 1, 2, a portion of 5, 6 and 7 on the basis that no records existed which were within the City's possession, custody or control, and further denied Item No. 5 on the basis that the use of the term "network traffic" was insufficiently specific. (Nos. 435/473 C.D. 2016: C.R. November 19, 2014 City Response to Records Request, R.R. at 16a–23a.) On November 20, 2014, Requester appealed the City's denial to OOR.⁴

155 A.3d 1124

On December 10, 2014, the City alerted Requester and OOR that records responsive to Item Nos. 1, 2 and portions of 5 and 7 do not exist, but that records responsive to Item No. 6 had been located; however, the City stated that the records responsive to Item No. 6 were protected from disclosure by the attorney work product doctrine and attorney-client privilege, as well as the internal predecisional deliberations exception and due to the fact that the records were created in connection with litigation. (Nos. 435/473 C.D. 2016: C.R. December 10, 2014 City Letter Brief to OOR.) On December 11, 2014, OOR required the City to submit a privilege log no later than December 16, 2014 identifying the records responsive to Item No. 6 and the reason for withholding each record. (Nos. 435/473 C.D. 2016: C.R. OOR Email Request for Privilege Log and City Response.) On December 19, 2014, the City asserted in an email response to OOR that OOR was without authority to require the City to submit a privilege log, however, the City produced a privilege log nonetheless; the City also withdrew its assertion of attorney-client privilege.⁵ (Id .; C.R. Privilege Log.) On January 5, 2015, OOR required the City to produce the records responsive to Item No. 6 for in camera inspection by the close of business on January 16, 2015. (Nos. 435/473 C.D. 2016: C.R. OOR January 5, 2015 order.)

On March 23, 2015, OOR issued a decision granting Requester's appeal in part and denying it in part. (Nos. 435/473 C.D. 2016: C.R. OOR Decision, R.R. at 24a–37a.) In its decision, OOR rejected the City's assertion that litigation between Requester and the District Attorney served as a bar to production of documents responsive to Requester's RTKL request and that a judicial order denying access to documents sought through the discovery process was determinative of whether the same documents were publicly accessible under the RTKL. (Id . at 6–8, R.R. at 29a–31a.) OOR also concluded that Item No. 5 in Requester's request for responsive documents was sufficiently specific under the RTKL. (Id . at 9–11, R.R. at 32a–34a.) Furthermore, OOR concluded after in camera review of the records responsive to Item No. 6 that six of the documents were subject to redaction under the work product doctrine but that the remainder must be disclosed. (Id . at 11–14, R.R. at 34a–37a.) Finally, OOR concluded that the City had met its burden of demonstrating that records responsive to Item Nos. 1, 2 and portion of 5 and 7 do not exist. (Id . at 8, R.R. at 31a.) The City and the District

155 A.3d 1125

Attorney appealed OOR's decision to the Trial Court.⁶

The Trial Court affirmed OOR's decision in a February 17, 2016 decision and order holding that OOR did not err in concluding that Item Nos. 5 and 6 were not protected from disclosure, and ordering disclosure of all documents responsive to Items No. 5 and 6 of Requester's September 29, 2014 RTKL request to the City.⁷ (Nos. 435/473 C.D. 2016: Trial Court Decision and Order.) The City and the District Attorney appealed the Trial Court's order to this Court and have limited the issue for our review to whether emails responsive to Item No. 6 of Requester's September 29, 2014 RTKL request are attorney information related to pending or impending litigation. The Trial Court issued a 1925(a) opinion on March 31, 2016.

Request II

On October 2, 2014, Requester submitted the following enumerated request for records to the District Attorney pursuant to the RTKL:

1. All record retention policies followed by the [District Attorney] between January 1, 2013 and October 1, 2014;

2. All policies and procedures pertaining to the backup and archiving of [District Attorney] e-mail servers that were in effect between July 1, 2013 and October 1, 2014;

3. All policies governing employee use of [District Attorney] computers and e-mail systems between July 1, 2013 and October 1, 2014;

4. All e-mails BJ Graham Rubin and Frank Fina exchanged with each other between July 1, 2013 and November 30, 2013 pertaining to my RTKL request that was received by the [District Attorney's] Open Records Officer on July 22, 2013;

5. All e-mails BJ Graham Rubin and Seth Williams exchanged with each other between July 1, 2013 and November 30, 2013 pertaining to my RTKL request that was received by the [District Attorney's] Open Records Officer on July 22, 2013;

6. All e-mails sent between Seth Williams and Frank Fina between July 1, 2013 and October 1, 2014 regarding Mr. Fina's correspondence with Judge Barry Feudale;

7. All e-mails, memos and letters exchanged by the [District Attorney] and the [City's] Office of Innovation and Technology between July 1, 2013 and

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