Office of the Governor v. Davis

• Decision Date: 12 August 2015
• Docket Number: No. 1940 C.D. 2014,1940 C.D. 2014
• Parties: OFFICE OF the GOVERNOR, Petitioner v. Robert H. DAVIS, Jr., Respondent.
• Court: Pennsylvania Commonwealth Court

122 A.3d 1185

OFFICE OF the GOVERNOR, Petitioner

v.Robert H. DAVIS, Jr., Respondent.

No. 1940 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued June 18, 2015.

Decided Aug. 12, 2015.

Sean M. Concannon, Deputy General Counsel, Harrisburg, for petitioner.

Craig J. Staudenmaier, Harrisburg, for respondent.

BEFORE: DAN PELLEGRINI, President Judge, BERNARD L. McGINLEY, Judge, BONNIE BRIGANCE LEADBETTER, Judge, RENÉE COHN JUBELIRER, Judge, ROBERT SIMPSON, Judge, P. KEVIN BROBSON, Judge, PATRICIA A. McCULLOUGH, Judge.

Opinion

OPINION BY Judge SIMPSON.

The Office of the Governor (Governor's Office) petitions for review from a final determination of the Office of Open Records (OOR), granting in part and denying in part the request of Robert H. Davis, Jr., Esquire (Requester) under the Right–to–Know Law (RTKL).¹ Requester sought records underlying a letter drafted by counsel in the Office of General Counsel (OGC). The Governor's Office contends OOR erred in applying the attorney-client privilege and the predecisional deliberative exception in Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10). Specifically, it argues OOR misplaced the burden of proof when analyzing the privilege, and misconstrued the “internal” element of the predecisional deliberative exception. Upon review, we vacate and remand.

I. Background

On March 27, 2014, Requester filed a RTKL request generally seeking records pertaining to the Pennsylvania Game Commission's (Commission) consideration of William Capouillez (Capouillez) for the position of its Executive Director. Specifically, he sought:

A copy of all records and any form of communication, in whatever format or form they may exist, from the period June 1, 2013 to the present, created, sent, received or referred to others by Governor Tom Corbett, Deputy Chief of Staff and Energy Executive Patrick Henderson, Press Secretary Jay Pagni and Deputy Chief of Staff Luke Bernstein and any members of their staffs and any person employed by any energy company regarding any information relating to William Capouillez, to Carl Roe, to any member of the [Commission] and any Executive Director Candidates or the interview process for such Executive Director Position and more specifically, while not limiting the preceding request, the following:

[1] Copies of all records and any form of communication, in whatever format or form they may exist and of related information received, sent, or used by the [Governor's Office] to recommend the course of action as indicated in the March 11, 2014 letter of Jared W. Handelman, First Executive Deputy General Counsel directed to Bradley C. Bechtel, Chief Counsel, which is attached; and

[2] Copies of all records and any and all forms of communication, in whatever format or form they may exist, and related information, received, sent, or created by the Governor and members of his Cabinet and Executive Staff (to include, but not limited to the specified ‘published reports and other information’ mentioned in the March 11, 2014 letter of [Attorney Handelman], to [Attorney] Bechtel, attached) which were considered or used in making the statement of [Handelman] in that letter that: ‘In fact, I am confident ... [I] would not approve the appointment of [Capouillez] as the Executive Director of the [Commission];’ and

[3] With reference to a letter dated March 18, 2014 signed by Governor Corbett and others to any Commissioner of the [Commission], one of which letters is attached for your convenient reference:

[a] Provide a copy of all records and any and all forms of communication received, developed or used by the [Governor's Office] as a basis of the facts stated in such letter and to recommend the course of action with regard to [Commission] employee [Capouillez] stated in such letter; and

[b] Provide a copy of all records and any and all forms of communication, in whatever format or form they may exist and any related information from any source used or considered by the [Governor's Office] to cause the Governor or other signatories to make the statement of ‘request’ in the penultimate paragraph, page 2, of the March 18th letter, attached for your convenient reference, that any Commissioner who was ‘otherwise inclined to refuse the above recommendations, alternatively[,] we request that you immediately resign your appointment to the Board of Commissioners;’ and[c] Provide a copy of all records and any and all forms of communication, in whatever format or form they may exist and any related information from any source used or considered by each signatory of the March 18th letter, attached, known by the [Governor's Office] to reflect the opinions, views or positions of any signatory of such letter, to recommend the factual conclusions, the recommendations and the requests contained in such letter; including but not limited to the ‘request’ that any Commissioner who might be ‘otherwise inclined to refuse the above recommendations, [alternatively] we request that you immediately resign your appointment to the Board of Commissioners.’

Amended Reproduced Record (R.R.) at 22a–24a (Request). Requester attached the March 11th and March 18th letters referenced in the Request, in which various executive and legislative officials recommended that the Commission not consider Capouillez as a candidate for the Executive Director position. R.R. at 25a–28a.

After invoking a 30–day extension, the Governor's Office partially granted and partially denied the Request, withholding: personal e-mail addresses and phone numbers pursuant to Section 708(b)(6) of the RTKL, 65 P.S. § 67.708(b)(6) ; documents reflecting internal, predecisional deliberations pursuant to Section 708(b)(10) of the RTKL; and, documents containing communications exempt under the attorney-client privilege.

Requester appealed to OOR. OOR invited the parties to supplement the record. In response, the Governor's Office provided a position statement and requested that OOR conduct in camera review of the records at issue. Requester also provided a position statement. Thereafter, upon OOR's request, the Governor's Office submitted Bates-labeled records to OOR for in camera inspection, accompanied by an index setting forth an exemption as to each Bates-labeled record (Index). The Index identified each email by date and time, the names of participants, and, for some records, the subject of the email. See Supplemental Reproduced Record (S.R.R.) 1b–12b. The Index did not identify the employer or title of the participants, and it did not explain how each exemption applied to the records.

Based on its in camera review, OOR issued a final determination, Davis v. Pennsylvania Office of the Governor, OOR Dkt. No. AP 2014–0835, 2014 WL 6735740 (issued September 26, 2014) (Final Determination), denying the appeal in part, and granting the appeal in part. OOR concluded the Governor's Office properly redacted personal e-mail addresses and phone numbers, and properly withheld certain records under the predecisional deliberative exception. As to the records found exempt, OOR referenced records and parts of records Bates-labeled OG 001–069 identifying which portions were exempt with some specificity. However, OOR granted access to the records Bates-labeled OG 070–133 without explaining the reasons for finding them not exempt with reference to specific records.

With regard to the predecisional deliberative exception, OOR stated it found portions of the records Bates-labeled OG 001–069 protected because they “reflect the internal, predecisional deliberations of [Governor's] Office employees and employees or officials of an agency as defined by the RTKL.” Final Determination at 9. Significantly, OOR did not indicate which of the “remainder of the records ... are not internal and/or deliberative in nature” by Bates-label or any other descriptor.² Id.

In determining the “remainder” was not protected, OOR explained:

Records are not ‘internal’ under Section 708(b)(10) if they are sent to or from a party that is not an employee or official of an entity that is defined as an agency under the RTKL.... Here, certain responsive records are not ‘internal’ because they originate from individuals that are not employees or officials of an agency. Additionally, certain records claimed to be subject to this exemption were provided to the Requester....

Further, other records at issue are not deliberative in nature. The term ‘deliberation’ is generally defined as ‘[t]he act of carefully considering issues and options before making a decision or taking some action....’ Factual information and statements are not deliberative in nature. Additionally, although discussions among employees of an agency may be internal and predecisional, an agency also has to demonstrate that these discussions are deliberative. In the instant case, the [Governor's] Office has not demonstrated that certain records are deliberative in nature.

Final Determination at 9–10 (citations omitted) (emphasis added).

With regard to the attorney-client privilege, OOR concluded the Governor's Office did not meet its burden of proof. OOR determined “certain records” on their face met the first three prongs of the privilege, but were not entitled to exemption because the Governor's Office did not provide any evidence of non-waiver. Id. at 6. OOR also noted the Governor's Office did not submit an affidavit to support the elements of the privilege, concluding the unsworn position statement was not competent evidence. Regardless of the lack of evidence, OOR reasoned “certain records” would not be privileged “because they do not constitute communications that were made for the purpose of securing either an opinion of law, legal services or assistance in a legal matter.” Id. at 7. Again, OOR did not identify these records by Bates-label or other designation.

The Governor's Office then filed a petition for review to this Court. After briefing, the matter was scheduled for oral argument. A few days before argument, the Governor's Office...