Pa. Dep't of Educ. v. Bagwell, s. 1617 C.D. 2014

• Decision Date: 29 January 2016
• Docket Number: Nos. 1617 C.D. 2014,s. 1617 C.D. 2014
• Citation: 131 A.3d 638
• Parties: PENNSYLVANIA DEPARTMENT OF EDUCATION, Petitioner v. Ryan BAGWELL, Respondent. Pennsylvania Department of Education, Petitioner v. Ryan Bagwell, Respondent.
• Court: Pennsylvania Commonwealth Court

131 A.3d 638

PENNSYLVANIA DEPARTMENT OF EDUCATION, Petitioner

v.Ryan BAGWELL, Respondent.

Pennsylvania Department of Education, Petitioner

v.Ryan Bagwell, Respondent.

Nos. 1617 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued Dec. 7, 2015.

Decided Jan. 29, 2016.

Roberto T. Datorre, Assistant Counsel, Harrisburg, for petitioner Pennsylvania Department of Education.

Joshua D. Bonn, Harrisburg, for respondent.

Robert L. Byer, Pittsburgh, for intervenor Pennsylvania State University.

J. Chadwick Schnee, Assistant Chief Counsel, Harrisburg, for amicus curiae Office of Open Records.

BEFORE: ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge¹ , and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Judge SIMPSON

.

In these consolidated appeals, the Pennsylvania Department of Education (Department) and the Pennsylvania State University (PSU) petition for review of the Office of Open Records' (OOR) final determination that directed disclosure of records to Ryan Bagwell (Requester) under the Right–to–Know Law (RTKL).² Requester sought communications between former Secretary of Education Ronald Tomalis (Former Secretary) and PSU Board members and administrators implicating the Gerald Sandusky investigation. The Department did not fulfill the request; instead, it demanded prepayment before reviewing the records. Before OOR, the Department claimed the attorney-client and work-product privileges and certain exceptions in Section 708(b) of the RTKL, 65 P.S. § 67.708(b)

, protected the records. OOR directed disclosure because the Department did not establish any exemption. OOR also ruled the Department did not comply with Section 902(b) of the RTKL, 65 P.S. § 67.902(b), because it did not demand fees in its initial response.

These appeals present a matter of first impression regarding the timeframe within which an agency may demand prepayment under Section 1307(h) of the RTKL, 65 P.S. § 67.1307(h)

. The Department and PSU contend OOR erred in ordering disclosure when the Department did not process the request. They argue OOR also erred in not bifurcating the appeals process to address the prepayment issue first. Alternatively, they assert the Department proved the exempt status of the records. We are also asked to determine whether PSU has standing to protect the records under the attorney-client and work-product privileges as the privilege holder. Upon review, we affirm in part, and vacate and remand in part.

I. Background

Requester submitted a request to the Department seeking:

1. all letters, e-mails, memorandums and reports that were sent in July 2012, August 2012 or between October 1, 2011 and March 31, 2012 ... between [Former Secretary] and [29 individuals who were PSU administrators or Board members].

2. all letters, e-mails, memorandums, and reports that were sent in July 2012, August 2012 or between November 1, 2011 and March 31, 2012, pertain to [PSU], and were sent between [Former Secretary] and [former Governor Tom Corbett and five members of the former Governor's executive staff and cabinet].

Reproduced Record (R.R.) at 6a–7a.

The Department sent a response within five business days. It invoked a 30–day extension pursuant to Section 902(a) of the RTKL, 65 P.S. § 67.902(a)

(Extension Notice). An extension was necessary based on "[t]he extent or nature of the request" and to conduct a "legal review" regarding access. R.R. at 10a. The Extension Notice stated a date certain for a response in accordance with Section 902(b) of the RTKL; it did not contain an estimate of fees.

On the last day of the extension period, the Department advised Requester it "located approximately 644 pages of records that are responsive to your request. This is not a final response. We reserve the right, in our final response, to assert any exceptions to access to the records under the RTKL [.]" R.R. at 13a (emphasis added). Notably, the Department demanded prepayment of $338.88 ($320 for duplication plus $16.88 for postage) in order to "process" the request. Id. (Prepayment Demand). The Department explained the 644 pages corresponded to "the number of potentially responsive records," as it did not perform a legal review to assess exemptions. Id.

Relevant here, the Prepayment Demand stated Requester must pay the estimate "before [the Department] will provide access to the records since the estimate exceeds $100" pursuant to 65 P.S. § 67.1307(h)

(relating to prepayment). Id. Unless Requester made the required prepayment, the Department advised its "obligations under the RTKL are ended with regard to this request ... [as] [a]ll applicable fees must be paid in order to receive access to the records requested." Id. Once Requester paid the fee, the Department would assert any "available exceptions under the RTKL" at that time. Id.

Requester appealed to OOR, asserting his request was deemed denied because an agency may not issue interim responses and reserve denial grounds. As to the prepayment request, Requester argued an agency must include an estimate of fees in its initial five-day response under Section 902 of the RTKL if it elects to invoke an extension. Contending the Department's response was not "final," Requester asked OOR to order disclosure of the 644 potentially responsive records. R.R. at 4a.

OOR invited both parties to supplement the record and directed the Department to notify any interested third parties of their opportunity to participate in the appeal pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c)

. PSU requested to participate in the appeal, and OOR granted PSU's request.

Both parties and PSU, as a direct interest participant, supplemented the record. In its submission, the Department requested OOR to bifurcate the appeal to first address the prepayment issue.

Additionally, the Department argued certain responsive records were exempt from disclosure under the attorney-client and work-product privileges, as well as the predecisional deliberative exception and the noncriminal investigative exception. The Department submitted an affidavit of the Former Secretary (Tomalis Affidavit). In its position statement, PSU explained the Department did not identify the responsive records. As a result, PSU was unable to review the records and assess applicable exemptions. Based on the subject matter, PSU asserted the records would include communications between counsel and PSU Board members implicating the attorney-client and work-product privileges. R.R. at 49a. Both the Department and PSU asked OOR to bifurcate the appeals process to address prepayment prior to accepting evidence regarding the substantive exemptions.

Ultimately, OOR issued its final determination granting access to the records, with redactions, Bagwell v. Department of Educ., OOR Dkt. No. AP 2014–0935 (filed August 13, 2014) (Final Determination). Interpreting the RTKL, OOR found that the Department waived its ability to seek prepayment under Section 1307(h) of the RTKL because it did not include its fee estimate within the five-day notice. R.R. at 68a. OOR explained "the RTKL does not create or mention any extension mechanism or ‘interim response’ process outside of the thirty day time period, without written authorization from the requester." R.R. at 68a–69a. As a result, OOR deemed the Prepayment Demand the "response"³ because it was issued after invoking a 30–day extension. Id.

As to the merits, OOR determined the Department did not establish any exemption protected information other than telephone numbers and email addresses, and home addresses of minors. Specifically, OOR found the Tomalis Affidavit insufficient because it merely parroted the elements of the privileges, and it contained only conclusory statements without factual support that the records constituted deliberations or investigations. Accordingly, OOR ordered the Department to disclose the records with minimal redaction.⁴

The Department filed a petition for review of the Final Determination to this Court, which was docketed at No. 1617 C.D. 2014. PSU filed a notice of intervention in this appeal, which Requester challenges in his brief. PSU then appealed the Final Determination in a separately docketed proceeding No. 1729 C.D. 2014, which Requester asks this Court to quash for lack of standing. This Court then consolidated the petitions for review. OOR filed an amicus curiae brief. After hearing argument by all parties and OOR, we address these appeals in our appellate capacity.

II. Discussion

The RTKL is remedial in nature and "is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." Pa. State Police v. McGill, 83 A.3d 476, 479 (Pa.Cmwlth.2014)

. Consistent with the RTKL's goal of promoting government transparency and its remedial nature, the exceptions to disclosure of public records must be narrowly construed. Id.

These appeals present several issues for this Court's review,⁵ involving procedural questions, statutory construction, and disclosure disputes. First, we address Requester's challenge to this Court's jurisdiction over PSU's direct appeal, and whether this Court should quash PSU's intervention notice. Second, we consider whether the RTKL requires an agency invoking an extension to demand prepayment within five days where fees are expected to exceed $100. Third, we address whether OOR erred in directing disclosure of responsive records when the Department did not review the records before seeking prepayment, and when the Department submitted the Tomalis Affidavit as evidence to establish privileges and RTKL exceptions. Fourth, we consider whether OOR erred by not bifurcating the appeal to first decide the propriety of the Prepayment Demand. Finally, we assess whether attorney fees are warranted.

A. PSU's Standing and Party Status

Initially, we address Requester's contention that this Court lacks jurisdiction over PSU's appeal and that it should quash PSU's intervention...