Schenck v. Township of Center

• Citation: 975 A.2d 591
• Decision Date: 22 July 2009
• Docket Number: No. 5 WAP 2007.,5 WAP 2007.
• Parties: Beverly J. SCHENCK, Appellant v. TOWNSHIP OF CENTER, BUTLER COUNTY, Pennsylvania, Appellee.
• Court: United States State Supreme Court of Pennsylvania

975 A.2d 591

Beverly J. SCHENCK, Appellant v. TOWNSHIP OF CENTER, BUTLER COUNTY, Pennsylvania, Appellee.

No. 5 WAP 2007.

Supreme Court of Pennsylvania.

Argued September 10, 2007.

Re-Submitted August 14, 2008.

Decided July 22, 2009.

Appeal No. 5 WAP 2007 from the Order of the Commonwealth Court entered February 28, 2006 at No. 594 CD 2005, affirming the Order of the Court of Common Pleas of Butler County, Civil Division, entered March 2, 2005 at No. AD 10992 of 2003, Martin J., O'Brien, J.

Robert F. Hawk, Esq., Butler, for Beverly J. Schenck.

Teri L. Henning, Esq., Harrisburg, for amicus curiae Pennsylvania Newspaper Association.

Michael D. Gallagher, Esq., for Butler County Solicitor.

Manning James O'Connor II, Esq., Leech Tishman Fuscaldo & Lampl, L.L.C., Douglas Carlson Hart, Esq., Pittsburgh, for Center Township.

Michael J. Witherel, Esq., Witherel & Associates, Pittsburgh, for Pennsylvania Municipal Authorities Association.

Thomas L. Wenger, Esq., Peter Grayson Howland, Esq., Wix, Wenger & Weidner, P.C., Harrisburg, for Pennsylvania State Association of Township Supervisors.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

Prior Report: Pa.Cmwlth., 893 A.2d 849.

ORDER

PER CURIAM.

AND NOW, this 22nd day of July, 2009, the appeal is dismissed as improvidently granted.

Justice SAYLOR files a dissenting statement in which Chief Justice CASTILLE joins.

Justice SAYLOR, dissenting.

At issue in this appeal is whether the public's right of access to invoices for attorney services paid for by the public may be defeated upon a mere blanket assertion of privilege. Given that the policy in the right-to-know landscape is rooted in promoting openness in government and the accessibility of information to the public, and because this Court is charged with the obligation of rendering reasoned decisions in light of such policy, I believe a more evaluative assessment of the claim of privilege is required.

In July 2003, Beverly Schenck ("Appellant") sent to the Board of Supervisors of Center Township a written request for copies of itemized invoices from its solicitor for the period of December 2002 to 2003, pursuant to the Pennsylvania Right to Know Act.¹ The request included bills associated with Appellant's litigation against four members of such board, on which Appellant had previously served. See Schenck v. Erie, slip op. MSD 02-40329 (C.P. Butler Nov. 20, 2002), aff'd, 862 A.2d 757 (Pa.Cmwlth.2004) (per curiam). The Township provided Appellant with the requested invoices but, with respect to those reflecting litigation-related work, it redacted all descriptions of the legal services rendered.² The solicitor explained that, pursuant to LaValle v. OGC, 564 Pa. 482, 769 A.2d 449 (2001), records reflecting attorney work product — embodying mental impressions, conclusions, opinions, memoranda, notes, legal research or legal theories, see Pa.R.C.P. No. 4003.3 — do not qualify as public records. See LaValle, 564 Pa. at 495, 769 A.2d at 457. More broadly, the solicitor explained that pre-decisional, internal, deliberative aspects of agency decision-making are outside the scope of mandatory disclosure. See id. at 497, 769 A.2d at 458.

According to the solicitor, the services-rendered entries within his firm's litigation-related invoices "clearly set forth attorney work product, indicating what was researched or reviewed, who was consulted and what activities took place in the furtherance of the litigation matters." Letter from Michael D. Gallagher, Township Solicitor, to the Center Township Board of Supervisors (August 20, 2003). Further, the solicitor opined as follows:

The purpose of the description of services on a municipal invoice is to inform the supervisors as to the progress and avenues explored in ongoing litigation and litigation related issues. This rather frank description of services permits the Supervisors to freely and openly discuss with counsel the exchange of ideas as to litigation and litigation issues. Otherwise, this firm's ability to adequately represent the Township would be diminished. Therefore, the disclosure of services rendered is also excluded from being a public record under the deliberative process privilege.

Id. Consistent with his conclusion that the services-rendered entries contained attorney-work-product and deliberative information, the solicitor determined that redaction was appropriate under Section 3.2 of the Act. See 65 P.S. § 66.3-2 (prescribing that, when "information which is not subject to access is an integral part of the public record and cannot be separated, the agency shall redact from the public record the information which is not subject to access, and the response shall grant access to the information which is subject to access").

Appellant filed exceptions to the partial denial of her request,³ which the Board of Supervisors denied. The Board's decision reiterated that the descriptive entries were exempt from mandatory disclosure because they included references subject to the work-product and/or the deliberative-process privileges. The attorney-client privilege was also invoked in the decision as an additional basis supporting the denial.

Appellant then pursued judicial review in the common pleas court as authorized by the Right to Know Act. See 65 P.S. § 66.4. The Township moved for summary judgment, and, at argument on the motion, Appellant contended that the Township could not establish privilege without producing the unredacted attorney invoices for review. Without examining the unredacted material, however, the common pleas court accepted the Township's position that the services-rendered portions of the invoices constituted attorney work product, and therefore, awarded summary judgment in the municipality's favor. See Schenck v. Township of Center, No. A.D. 10992 of 2003, slip op. at 4 (C.P. Butler March 2, 2005) ("The Court finds the Defendant's claim that the description of services portion of the invoice contains mental impressions, case strategy and/or tactics of the Solicitor to be credible, and believes that such information is worthy of protection."). The common pleas court made particular note that the Township forthrightly had provided all other requested information. Further, the court commented that the redacted information was "particularly sensitive and worthy of protection from [Appellant's] request," given that she had been involved in litigation with several of the Township supervisors. Id. at 5.⁴

On appeal, a divided panel of the Commonwealth Court affirmed on different grounds. See Schenck v. Township of Center, 893 A.2d 849 (Pa.Cmwlth.2006). Initially, the majority recognized that the solicitor invoices bore all of the characteristics of public records. See id. at 853. The majority, however, focused its attention on another public disclosure law, the Sunshine Act,⁵ which provides for broad public access to agency meetings. The majority took particular note that, under the Sunshine Act, an agency may conduct some of its business in closed executive sessions, where it may "consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or issues on which identifiable complaints are expected to be filed." Schenck, 893 A.2d at 853-54 (quoting 65 Pa.C.S. § 708(a)(4)). Further, the majority observed that this litigation-related exception to public disclosure was not limited to attorney work product, but extended to all "information in connection with pending or impending litigation." Schenck, 893 A.2d at 854. Finding that the Right to Know and Sunshine Acts should be read in pari materia, because they relate to the same class of things, see id. at 853 (citing 1 Pa.C.S. § 1932(a)), the majority extended the Sunshine Act's litigation exception into the right-to-know setting. In the majority's view, a contrary approach would be untenable. See id. at 854 ("[I]t would be absurd if litigation information from the solicitor was protected the evening of a municipal meeting, but it could be accessed the next morning through a description of litigation-related legal services in an invoice."). In light of its broad reading of the Sunshine Act's litigation-related exception, the majority also concluded that "it is not necessary for someone to cull through each service described in each invoice searching for attorney work product." Id.

Judge Friedman authored the dissent, in which she differed with the majority's in pari materia approach to the Right to Know and Sunshine Acts. The dissent reasoned that the two statutes should not be read as one, because they apply to different subject matter and their application yields different results. In this regard, the dissenting opinion developed that the Sunshine Act "applies to official action and deliberations by a quorum of agency members and requires that the same take place at a public meeting," whereas the Right to Know Act applies only to "public records," which the statute defines to mean certain documents like "any account, voucher or contract dealing with the receipt or disbursement of funds ... and any minute, order or decision by an agency[.]" Schenck, 893 A.2d at 856 (Friedman, J., dissenting) (quoting 65 P.S. § 66.1) (emphasis deleted). The dissent recognized that an agency can meet in a private session to discuss matters protected by a privilege; however, it stressed that once public funds are expended, "regardless of whether the expenditure flows from deliberations in an executive session, documents reflecting that expenditure are public documents subject to access under the [Right to Know Act]." Id.

For these reasons, Judge Friedman would have limited the inquiry to whether the redactions reflected protected attorney work product. See Schenck, 893 A.2d at 857 (Friedman, J., dissenting) (citing LaValle, 564 Pa. at 497, 769 A.2d at 458). The dissent then focused on the difficulty in arriving at...