Twp. of Worcester v. OOR and J. Mollick , 129 A.3d 44 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Worcester :
:
v. : No. 711 C.D. 2015
: Argued: December 7, 2015
Office of Open Records, :
and James Mollick :
:
Appeal of: Office of Open Records :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: January 8, 2016
This appeal involves procedural issues under the Right-to-Know Law
(RTKL).1 In particular, the Office of Open Records (OOR) asks whether the Court
of Common Pleas of Montgomery County (trial court) erred in reversing OOR’s
order that directed the Township of Worcester (Township) to produce, for in
camera inspection, copies of records the Township withheld in response to Dr.
James Mollick’s (Requester) RTKL request as well as an in camera inspection
index, where the Township claimed the records were exempt from disclosure under
the attorney-client and work-product privileges and the predecisional deliberative
exception. Further, as a threshold procedural matter, we are asked whether the trial
court properly determined that OOR’s interlocutory order was an appealable
collateral order over which the trial court had jurisdiction. Upon review, we affirm
the trial court’s determination that OOR’s interlocutory order was an appealable
collateral order. However, we reverse the trial court’s determination that OOR’s
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
appeals officer lacked authority to request in camera inspection of the records at
issue or an in camera inspection index or “privilege log” based on the facts
presented here.
I. Background
The parties agree on the following facts. In June 2014, Requester
submitted a request (Request) in accordance with the RTKL for eight sets of
records held by the Township. Reproduced Record (R.R.) at 12a-13a. Shortly
thereafter, the Township obtained a 30-day extension to respond to the Request.
R.R. 14a-15a. Ultimately, the Township granted all but Requester’s seventh
request, which sought emails “with Township Staff regarding meetings with
homeowners association and Brennan Marion regarding transfer of public
improvements of the Stoney Creek Farms development referenced on 2/25/14.”
R.R. at 13a, 16a-19a. In denying this request, the Township explained the records
sought contained internal, predecisional deliberations and were also protected
under the attorney-client and work-product privileges, or the “ethics-based rule of
confidentiality.” R.R. at 17a.
Requester filed an appeal to OOR, challenging the Township’s denial
of access to the requested records. R.R. at 3a-23a. OOR docketed the appeal as
Mollick v. Township of Worcester, OOR Dkt. AP 2014-1179. R.R. at 24a. The
Township submitted a response and memorandum in support of its response to
Requester’s RTKL request, which was supported by a verification signed by the
Township’s open records officer. During the course of the appeal, Requester
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repeatedly asked OOR to conduct an in camera review of records. R.R. at 11a,
R.R. at 209a.2
In September 2014, as part of its fact-finding function, OOR issued an
order directing the Township to produce copies of all records withheld by the
Township for the purpose of conducting an in camera inspection and,
subsequently, issuing a final order as to whether the records are subject to public
access. R.R. at 28a-29a; see Office of Open Records v. Center Twp., 95 A.3d 354,
363-64 (Pa. Cmwlth. 2014) (en banc); see also McGowan v. Pa. Dep’t of Envtl.
Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (ordering OOR to conduct an in camera
review of records). OOR also ordered the Township to provide OOR with three
copies of an in camera inspection index referencing each record at issue by number
and identifying each item within each record that was claimed to be exempt. R.R.
at 28a. In order to accommodate this additional fact-finding, OOR confirmed
Requester’s agreement to an extension of time for OOR to issue a final order. See
Section 1101(b)(1) of the RTKL, 65 P.S. §67.1101(b)(1).
The Township submitted an “Application for an Amendment of an
Interlocutory Order and Position Statement in Opposition of In Camera Review of
Records” to OOR to set forth the statement specified in 42 Pa. C.S. §702(b) so as
2
OOR is an independent, quasi-judicial tribunal charged with, among other duties,
adjudicating appeals of decisions concerning access to records in the possession of
Commonwealth and local agencies under the RTKL. See Sections 1101 and 1310(a) of the
RTKL, 65 P.S. §§67.1101, 67.1310(a); see also Office of Open Records v. Center Twp., 95 A.3d
354, 363-64 (Pa. Cmwlth. 2014) (en banc). OOR is a “Commonwealth agency” as defined by
the RTKL. See Section 102 of the RTKL, 65 P.S. §67.102.
3
to permit an interlocutory appeal by permission. R.R. at 30a-45a. OOR denied the
application through an email by OOR’s appeals officer. R.R. at 46a.
Shortly thereafter, the Township filed a document styled a “Petition
for Review of the September 26, 2014 Order of the Office of Open Records in the
Matter of Mollick v. Worcester Township, OOR Dkt. No. AP 2014-1179” with the
trial court. R.R. at 47a-100a. OOR filed a motion to quash the Township’s
petition. R.R. at 101a-09a.
OOR also filed a “Petition to Enforce Order Directing Production of
Documents for In Camera Review” with this Court. R.R. at 110a-298a. By
agreement of the parties, a single judge of this Court transferred that petition to the
trial court. R.R. at 299a. Thereafter, OOR filed an amended motion to quash the
Township’s petition for review in the trial court. R.R. at 300a-06a.
After oral argument, the trial court issued three orders. The first order
denied OOR’s motion to quash. R.R. at 343a. The second order reversed OOR’s
order for production of documents for in camera review and an in camera
inspection index. R.R. at 344a. The third order granted the Township’s motion to
quash an answer to the Township’s petition for review filed by Requester. R.R. at
345a.
OOR subsequently filed two notices of appeal to this Court related to
the trial court’s first two orders, which were docketed at 711 CD 2015 and 712 CD
2015. R.R. at 346a-357a. A single judge of this Court entered an order quashing
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the appeal at 712 CD 2015, stating that only a single notice of appeal was required.
R.R. at 358a-59a.
Thereafter, the trial court issued an opinion in support of its orders in
which it first determined OOR’s order was an appealable collateral order for
purposes of its jurisdiction. The trial court further determined OOR’s order
directing the Township to produce, for in camera inspection, copies of records the
Township withheld in response to Requester’s RTKL request, as well as an in
camera inspection index, was unwarranted under the facts presented here. In so
doing, the trial court distinguished this Court’s decision in Center Township, which
held that OOR has the implied power to conduct in camera inspections, explaining:
Though, [OOR] retains the power to conduct in camera
inspection, the instant case did not warrant the exercise of such
power. Contrary to the response in the Center Twp. case, which
provided nothing more than a bald allegation stating that
privileges prevented disclosure of the documents requested,
here the Township submitted a verified memorandum
supporting its denial of access to the records requested. The
memorandum was verified by F. Lee Mangan, the Open
Records Officer for [the] Township. The memorandum set forth
the legal and factual bases for denying access to the records in
question. This memorandum served the same purposes as
testimonial affidavits frequently used to support denials of
requests. Therefore, the Township presented a document in
support of its decision to deny access.
The verified memorandum maintained that the Township
denied access to records requested by [Requester] in one of his
eight RTKL requests received by [the] Township on June 2,
2014. In his seventh request, [Requester] asked for access to e-
mails with Township Staff regarding meetings with
homeowners association and Brennan Marion regarding the
transfer of public improvements of the Stoney Creek Farms
development referenced on February 25, 2014. [The Township]
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denied access to these records on the primary basis that they
were exempt under the predecisional deliberations exemption of
the RTKL. The Township further denied access to some of the
records under the attorney-client privilege and the work-product
doctrine, inter alia.
[The Township] explained its denial of access to the
records requested in its Verified Memorandum as follows:
Part No. 7 of the Request seeks ‘emails with Township
Staff’ which are ‘referenced in [the Township Solicitor’s]
March 10, 2014 invoice.’ The only emails referenced as
emails ‘with Township staff’ in the Township Solicitor’s
March 10, 2014 invoice are emails between Township
personnel and the Township’s Solicitor. Thus the
Township’s Response indicates, the Request is seeking
emails between a Township consultant (i.e. the Township
Solicitor) and Township Staff which are clearly, internal
to the Township.
As the Township’s Response also indicates, the
potentially responsive emails relate to one or more
proposed courses of action regarding the completion of
improvements, escrow releases and meetings (which had
not yet occurred) prior to any determination being made
on how to proceed. Therefore, the Township has
established all 3 elements necessary to exempt the
potentially responsive records from disclosure under the
internal, predecisional deliberation exemption.
Thus, the Township presented evidence which, if
believed, may be sufficient for [OOR] to sustain the
Township’s denial of [Requester’s] request. [OOR] could
likewise decide that the Township did not carry its burden and
enter an adverse ruling against the Township. [OOR] is
required to decide the case, not to make an unwarranted
demand for an in camera inspection and the creation of an
inspection index. Simply stated, the [OOR] Order compelling
an in camera inspection and the production of an in camera
inspection index was not warranted by the facts of this case.
Tr. Ct., Slip Op., 7/8/15, at 8-10.
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OOR has not issued a final order in the matter of Mollick v. Township
of Worcester, and the appeal remains pending before OOR. This matter is now
before us for disposition.
II. Issues
On appeal,3 OOR argues the trial court committed an error of law by
finding that OOR’s order requiring in camera review of records is a collateral
order. Alternatively, it contends the trial court committed an error of law or
abused its discretion by holding that the Township was not required to provide
records for OOR to conduct an in camera review.
III. Discussion
A. Collateral Order
1. Contentions
OOR first argues that, in erroneously concluding OOR will require
agencies to provide records for OOR’s in camera review in every appeal, the trial
court erred in finding OOR’s order requiring in camera review constituted an
appealable collateral order. As the order is not a collateral order, OOR contends,
the trial court erred as a matter of law in finding jurisdiction over the Township’s
petition for review.
OOR points out that Pa. R.A.P. 313(b) provides for the immediate
right to appeal an order that “is … [(1)] separable from and collateral to the main
3
Our review in a RTKL case where the trial court sits as a reviewing court is whether the
trial court committed an error of law and whether its findings of fact are supported by substantial
evidence. Paint Twp. v. Clark, 109 A.3d 796 (Pa. Cmwlth. 2015).
7
cause of action [(2)] where the right involved is too important to be denied review
and [(3)] the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.” Id. (clause numbers
added). All elements of this conjunctive, three-prong test must be met in order for
an order to be considered a collateral order. See Rae v. Pa. Funeral Dirs. Ass’n,
977 A.2d 1121 (Pa. 2009).
Applying the three-prong test here, OOR argues that, as to the first
prong, the order at issue must not “implicate the merits of the underlying dispute.”
Commonwealth v. Wright, 78 A.3d 1070, 1077 (Pa. 2013). “[A] claim is
sufficiently separate from the underlying issues for purposes of collateral order
review if it ‘is conceptually distinct from the merits of plaintiff’s claim,’ that is,
where, even if ‘practically intertwined with the merits, [it] nonetheless raises a
question that is significantly different from the questions underlying plaintiff’s
claim on the merits.’” Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa.
2006).
Here, OOR asserts, in the underlying appeal before it, OOR must
answer the question of whether the records sought by Requester are public records.
The order requiring in camera inspection and an inspection index is inherently
entwined with the underlying dispute, as the order requires delivery of the records
to OOR for in camera review and analysis as to whether those records are subject
to public access. Because the most probative and relevant evidence for
determining whether a record is a public record is the actual record at issue, the
order cannot be considered severable from the underlying dispute.
8
Next, as to the importance of the right at issue, OOR maintains, in
evaluating whether a right involved in a dispute is too important to be denied
review, our Supreme Court states, “it is not sufficient that the issue be important to
the particular parties[;] [r]ather[,] it must involve rights deeply rooted in public
policy going beyond the particular litigation at hand.” Geniviva v. Frisk, 725 A.2d
1209, 1214 (Pa. 1999).
Here, OOR contends, the Township’s petition for review is primarily
concerned with the Requester in the underlying appeal before the OOR, and that
the Township is being “singled-out” for in camera review. See, e.g., R.R. at 64a at
¶65 (“Singling-out and subjecting [the] Township to in camera review of its
records simply at the request of [Requester] [is] apparently based upon nothing
more than [Requester’s] unfounded allegations of wrongdoing … ”); R.R. at 56a-
58a, ¶¶25-38 (chronicling the history of the Township’s interactions with
Requester and complaints of excessive legal billing). Certainly, these allegations
are uniquely particular to the Township and cannot be considered of significant,
“deeply rooted” public policy concerns.
Based on unfounded fears, OOR argues, the Township grasps at the
wisps of public policy importance by generally claiming OOR will decide to
universally conduct in camera reviews of records in all future cases. OOR asserts
it has neither the desire nor the resources to do so. The overwhelming majority of
cases before OOR do not require in camera review, and it is clear that the General
Assembly, in devising the deadline for issuing final orders, did not anticipate such
review in the majority of cases. See 65 P.S. §67.1101(b)(1). OOR’s intentions are
9
evidenced by past practice where in camera review was employed as “a workable
compromise” between the conflicting interests of access to records and the
government’s interests that should only be used when warranted. See Dep’t of the
Air Force v. Rose, 425 U.S. 352, 381 (1976). Far from “singling-out” the
Township, OOR argues, it conducted in camera review approximately 100 times
out of more than 12,000 cases.
OOR maintains the Township does not challenge OOR’s ability to
conduct in camera review of records; rather, it only argues the particular
circumstances of this case do not warrant OOR’s in camera review. R.R. 54a at
¶18; R.R. at 205a. OOR contends that, following guidance from this Court, OOR
seeks only to fulfill its statutory mandate by developing the evidentiary record in
the appeal pending before it in light of legal and factual questions concerning the
records at issue based on the Township’s undeveloped response to OOR during the
appeal. See Office of Governor v. Bari, 20 A.3d 634, 648 (Pa. Cmwlth. 2011)
(“OOR’s reluctance … to perform in camera review of the subject records in this
type of proceeding is confounding” in light of an agency’s “undeveloped
preliminary responses to OOR’s general request for additional information ….”);
see also Harrisburg Area Cmty. Coll. v. Office of Open Records, (Pa. Cmwlth.,
No. 2110 C.D. 2009, filed May 17, 2011), slip op. at 17-18, 2011 WL 10858088 at
*8 (unreported) (“[OOR] has a responsibility to develop a fuller record using the
means granted to it in the RTKL, such as conducting a hearing or examining the
subject records in camera ….”). Because the Township’s concerns are tailored to
its own unique factual circumstances, OOR argues, the order at issue should not be
10
considered an appealable collateral order because this matter is not important
enough as to “involve rights deeply rooted in public policy.”
Finally, as to the third prong, OOR contends, the Township must also
show its claims will be irreparably lost if the order is not considered a collateral
order. OOR argues there can be no question that the Township’s allegation that the
records at issue are not subject to public access will be preserved for purposes of
OOR’s eventual final order in this case and potential further review by the trial
court if a party appeals OOR’s final order. To the extent the Township challenges
OOR’s authority to conduct an in camera review of records here, the Township’s
claims may still be raised and resolved in the context of opposing a petition to
enforce brought by OOR. Thus, the Township has not presented any claims that
will be irreparably lost if the order is not treated as a collateral order.
In sum, OOR contends, as the Township has not met any of the three
prongs under Pa. R.A.P. 313(b) for determining whether the order is a collateral
order, the trial court lacked jurisdiction over this matter and its order should be
reversed.
The Township responds that OOR’s order is an appealable collateral
order. It argues the trial court succinctly laid out the framework for determining
whether or not the order is a collateral order under Pennsylvania law. The
Township contends that, in its brief, OOR goes to great lengths to challenge the
trial court’s finding that OOR’s order, which demands that the Township produce
records for in camera review and create an in camera inspection index is a
11
collateral order. In short, the Township maintains, OOR argues: (1) the order is
not severable from the underlying dispute because it requires delivery of the
records at issue to OOR for in camera review to determine whether these records
are subject to public access”; (2) the order does not involve an important right
because “OOR has neither the desire nor the resources” to “universally conduct in
camera reviews of records in all future cases[,]” Br. of Appellant at 15; and, (3) the
Township’s claims will not be lost because, “to the extent that the Township
challenges … OOR’s authority to conduct an in camera review in this matter, the
Township’s claims may still be raised and resolved in the context of opposing a
Petition to Enforce brought by the OOR.” Br. of Appellee at 10. The Township
argues OOR’s reasoning is disjointed and untenable.
As to severability of the order from the underlying matter, the
Township points out that OOR argues, “the most probative and relevant evidence
for determining whether a record is a public record is the actual record at issue”
and, therefore, the order “cannot be considered severable from the underlying
dispute.” Br. of Appellant at 13-14. The Township contends the necessary
implication of OOR’s argument is that, in all appeals, review of the records
requested is required to determine whether those records are subject to public
access. On the other hand, when addressing (and downplaying) the importance of
the Township’s rights, OOR claims, contrary to its own earlier reasoning regarding
the importance of the records at issue as evidence, “the overwhelming majority of
cases before the OOR do not require in camera review [of records], and it is clear
that the General Assembly, in devising the deadline for issuing final orders, did not
anticipate such review in the majority of cases.” Br. of Appellant at 15. The
12
Township argues it appears that OOR is arguing against its own reasoning. The
inconsistency of those positions is obvious.
The Township further maintains the order at issue here is a collateral
order. As set forth in trial court’s opinion, our Supreme Court holds that
interrelationship between merits issues and the question sought to be raised in the
interlocutory appeal involving a collateral order is tolerable. See Pridgen. Further,
the trial court’s reasoning regarding severability of the order from the underlying
matter is simple and logical. Clearly, the Township contends, the issue of whether
records are subject to in camera review is severable and significantly different
from the underlying matter of whether records are subject to disclosure.
The Township asserts OOR completely misses the mark as to the
importance of the rights at issue here. The Township reiterates the trial court’s
reasoning regarding this prong.
The Township points out that OOR suggests it has neither the desire
nor the resources to “universally conduct in camera reviews of all records in future
cases.” Br. of Appellant at 15. However, if, in camera review is appropriate and
warranted in this case–where the record is sufficiently developed–then in camera
review is warranted, appropriate and required in all appeals before OOR whenever
requested by a party to the appeal. Not only will OOR (and requesters) have the
ability to burden agencies by requesting submission of documents and the creation
of indices where the record is ripe for disposition, agencies will have the ability,
and right, to burden OOR by not responding to any requests for records and, in
13
every appeal, demand OOR conduct in camera review of records in lieu of
responding to the appeal. Thus, the procedural framework of responding to
requests for records set forth in the RTKL will be rendered meaningless–agencies
will be incentivized to ignore requests for records and simply demand in camera
review on appeal–and, of course, regardless of how well the record is developed,
OOR will be forced to comply with all demands for in camera review to avoid
abusing its discretion and arbitrarily deciding when in camera review is
appropriate. Clearly, the Township asserts, the public policy implications at issue
in this matter are of great importance.
The Township further asserts OOR’s reasoning that the Township’s
claims will not be irreparably lost because the Township can challenge OOR’s
authority to conduct an in camera review of records in this matter in the context of
opposing a petition to enforce filed by OOR is a patently absurd non sequitur. The
analysis is whether the question presented is such that, if review is postponed until
final judgment in the case, the claim will be irreparably lost. Pa. R.A.P. 313(b).
Thus, whether or not the Township’s claims will be irreparably lost does not hinge
on the ability of another party–in this case OOR–to file another pleading and
litigate it to its conclusion. Rather, the question is whether the Township’s claims
will be irreparably lost by OOR issuing a final determination in this matter–to
which the answer is emphatically yes.
Moreover, the Township argues, its “claims” are not limited to
whether OOR has authority to conduct an in camera review in this particular case.
The Township’s claims are grounded in public policy concerns: when is the
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significant expense of complying with an in camera review and preparation of a
privilege log appropriate and warranted in any appeal before OOR?
2. Analysis
Pursuant to Rule 313(a) of the Pennsylvania Rules of Appellate
Procedure, “[a]n appeal may be taken as of right from a collateral order of an
administrative agency or lower court.” Rule 313(b) defines a “collateral order” as
one that is “[(1)] separable from and collateral to the main cause of action [(2)]
where the right involved is too important to be denied review and [(3)] the question
presented is such that if review is postponed until final judgment in the case, the
claim will be irreparably lost.” Pa. R.A.P. 313(b) (clause numbers added).
The collateral order doctrine must be narrowly construed, and all three
prongs must be met before collateral appellate review is allowed. Rae. “Narrow
application prevents the collateral order rule from subsuming the fundamental
general precept that only final orders are appealable and from causing litigation to
be interrupted and delayed by piecemeal review of trial court decisions.” Brophy
v. Phila. Gas Works & Phila. Facilities Mgmt. Corp., 921 A.2d 80, 87 (Pa.
Cmwlth. 2007). If “an order satisfies Rule 313’s three-pronged test,” we “may
exercise appellate jurisdiction where the order is not final.” Rae, 977 A.2d at
1125.
In determining whether an order is separable from and collateral to the
main cause of action, we must first decide whether review of the order implicates
the merits of the main cause of action. Wright. In other words, we examine
15
“whether the issues appealed can be addressed without analysis of the underlying
claims on the merits.” Brophy, 921 A.2d at 87. Where review of the order at issue
does not implicate or affect the merits of the underlying dispute, it is separable
from and collateral to the main cause of action. Wright. With regard to
separability, our Supreme Court “has adopted a practical analysis recognizing that
some potential interrelationship between merits issues and the question sought to
be raised in the interlocutory appeal is tolerable.” Pridgen, 905 A.2d at 433
(citations omitted). “This standard is more permissive than the previous standard
adopted by Pennsylvania courts, which required that, in order to meet the
separability test, the order could ‘not relate in any way’ to the merits of the
underlying action.” 20 Darlington et al., PENNSYLVANIA APPELLATE PRACTICE
§313:2 (2014-15 ed.).
As to the second prong, “[a]n issue is important if the interests that
would potentially go unprotected without immediate appellate review of that issue
are significant relative to the efficiency interests sought to be advanced by the final
judgment rule.” Geniviva, 725 A.2d at 1213 (citation omitted). “[I]t is not
sufficient that the issue be important to the particular parties. Rather[,] it must
involve rights deeply rooted in public policy going beyond the particular litigation
at hand.” Id. at 1214.
Finally, as to the third prong, we ask “whether a right is ‘adequately
vindicable’ or ‘effectively reviewable.’” Id. at 1213 (quoting Digital Equip. Corp.
v. Desktop Direct, Inc., 511 U.S. 863, 878-79 (1994)). This question “cannot be
answered without a judgment about the value interests that would be lost through
16
rigorous application of a final judgment requirement.” Id. For instance, the
substantial cost a party would incur in defending a claim may equate to an
irreparable loss of a right to avoid the burden entirely. See Pridgen.
Here, the trial court determined OOR’s interlocutory order requiring
the Township to produce for in camera inspection the records sought by Requester
and an in camera inspection index constituted an appealable collateral order under
Pa. R.A.P. 313(b). No error is apparent in the trial court’s determination.
Specifically, as to the first prong, whether the order is separable from
and collateral to the main cause of action, the trial court explained that a claim is
sufficiently separate from the underlying issues for purposes of collateral order
review if it is conceptually distinct from the merits of the plaintiff’s claim.
Pridgen. That is, where, even if practically intertwined with the merits, it
nonetheless raises a question that is significantly different from the questions
underlying a plaintiff’s claim on the merits. Id. In analyzing the separable nature
of a claim, our Supreme Court recognizes that some potential interrelationship
between merits issues and the question sought to be raised in the interlocutory
appeal is tolerable. Id.
Here, the underlying question in Requester’s case is whether the
records responsive to Requester’s seventh request are subject to disclosure under
the RTKL, or whether a privilege or exemption bars disclosure. The order directly
at issue in this appeal presents a question of whether OOR erred in requiring the
Township to provide an in camera inspection index and to submit all records
17
responsive to Requester’s seventh request to OOR’s appeals officer for in camera
review. As the trial court explained, the fact that the issues involved in the
underlying litigation and the instant appeal are conceptually distinct is illustrated
by the fact that an order reversing OOR’s order does not directly implicate the
merits of the underlying case. Thus, the practical effect of the trial court’s order
reversing OOR’s order was to conclude OOR had a sufficient factual record before
it to decide the underlying dispute. As a result, although this issue is, to some
extent, intertwined with the merits of the underlying case, the question presented in
this appeal is conceptually distinct from that presented by the underlying litigation.
As to the second prong, whether the right involved is too important to
be denied review, an issue is considered important if the interests that would
potentially go unprotected without immediate appellate review of the issue are
significant relative to the efficiency interests sought to be advanced by the final
judgment rule. Geniviva. It is not sufficient that the issue be important to the
particular parties; rather, the issue must involve rights deeply rooted in public
policy going beyond the particular litigation at hand. Id. The issue here concerns
OOR’s authority to request in camera inspection of records and an inspection
index or “privilege log.” Because a decision further delineating OOR’s authority
to require in camera inspection of records has the potential to extend well beyond
the confines of this particular case, the right involved is too important to be denied
review, satisfying the second prong.
Finally, as to the third prong, whether the question presented is such
that if review is postponed until final judgment, the claim will be irreparably lost,
18
if in camera review and creation of an in camera inspection index or “privilege
log” is required here, the issue of whether OOR can require in camera review
notwithstanding an affidavit supporting a claimed privilege or exemption is likely
to be irreparably lost if the Township prevails on the merits before OOR. In such a
circumstance, the Township will not be aggrieved, and it would not have standing
to appeal further. Additionally, the Township would be required to bear the
expense of creating an inspection index or “privilege log.”
For all these reasons, the trial court correctly determined OOR’s order
in this case is a collateral order under Pa. R.A.P. 313(b) and, as a result, the trial
court had jurisdiction over the Township’s appeal.
B. In Camera Review
1. Contentions
OOR also contends the trial court committed an error of law and
abused its discretion in holding the Township is not required to submit records to
OOR for in camera review. It argues that, even if the trial court had jurisdiction
here, its order should be reversed because it abused its discretion and misapplied
the law by: (1) ignoring the wide discretion afforded to OOR appeals officers; and,
(2) improperly assessing the evidence presented by the Township prior to issuance
of a final order by OOR.
Under the RTKL, OOR is charged with developing an evidentiary
record before its appeals officers to ensure meaningful appellate review. See Pa.
Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1121 (Pa. Cmwlth. 2015). In so doing,
“the RTKL grants appeals officers wide discretion with respect to procedure ….”
19
Bowling v. Office of Open Records, 75 A.3d 453, 467 (Pa. 2013). OOR asserts
this Court recognizes OOR is charged with the duty to determine whether a
privilege is applicable, and it is obligated to rule on all procedural issues related to
disposition of the matter.
OOR maintains that in Center Township, this Court reasoned that
appeals officers have the authority to conduct in camera review “to better enable
appeals officers to develop an adequate record for judicial review, and at the same
time, to render an informed and reasoned decision—one that is based upon a
sufficient factual predicate—especially with regard to matters concerning
privileged or sensitive material.” Bagwell, 114 A.3d at 1121 (quoting Center
Twp.).
OOR argues the facts here are indistinguishable from those in Center
Township, where this Court held OOR properly exercised its discretionary power
to order in camera review of records. In that case, as here, a township alleged
records were protected under the attorney-client privilege and made a submission
on appeal to OOR. OOR asked the township to produce a privilege log identifying
which records were withheld from public access based on attorney-client privilege.
On the application of the requester, OOR issued an order requiring the township to
provide the allegedly privileged records for OOR’s in camera review. The
township in that case, just like the Township here, refused to provide either a
privilege log or the records for OOR’s in camera review.
OOR argues that, because its appeals officers are vested with wide
discretion to determine whether in camera review of records is necessary and the
20
instant matter is indistinguishable from Center Township, the trial court erred in
failing to recognize OOR’s discretionary power to order in camera review.
Similarly, OOR asserts, the trial court erred by allowing the Township
to shortcut the appeals process here. To that end, under the RTKL, OOR
adjudicates appeals concerning denials of access to records. After OOR issues a
final order, parties are statutorily entitled to appeal to reviewing courts. On appeal,
courts may, in reviewing a final order, accept new evidence and conduct de novo
review. Here, because, as discussed above, OOR has yet to issue a final order, the
trial court erred in allowing the Township to “leapfrog” OOR’s fact-finding and
adjudicatory functions as mandated by the RTKL.
The Township acknowledges and agrees that, under this Court’s
holding in Center Township, OOR has authority to conduct in camera review of
records where appropriate and when warranted. The Township argues that in
Center Township, this Court did not, however, expressly provide a test for when in
camera review is “appropriate and warranted.” As set forth in the trial court’s
well-reasoned opinion:
[T]he Township presented evidence which, if believed, may be
sufficient for [OOR] to sustain the Township’s denial of
[Requester’s] request. [OOR] could likewise decide that the
Township did not carry its burden and enter an adverse ruling
against the Township. [OOR] is required to decide the case, not
to make an unwarranted demand for an in camera inspection
….
Tr. Ct., Slip Op., at 9. In short, the Township argues, OOR abused its discretion by
ordering the Township to produce records for in camera inspection and further
21
abused its discretion by ordering the Township to produce an in camera inspection
index. Thus, this Court should affirm the trial court’s order.
The Township contends there must be reasonable limits on what
“when appropriate and warranted” means, or OOR will be inundated with requests
for in camera reviews and privilege logs in every case where a public record is
deemed exempt or redacted.
The Township argues OOR’s position appears to be that, under Center
Township, OOR appeals officers are vested with the discretion and authority to
order in camera review of records in any appeal before OOR on request by any
party to the appeal. If OOR’s position is correct, then every step of the procedure
for responding to a request for records under the RTKL–including but not limited
to, the step of an agency rendering a substantive response to a request and the step
of an agency issuing a verified position statement or affidavit in support of its
substantive response to a requester which is on appeal to OOR–is rendered
meaningless. And, instead of spending time, effort and taxpayer money on careful
responses to RTKL requests and affidavits or verified position statements in
support of denials of access to records appealed to OOR, agencies should simply
ignore requests for records under the RTKL and demand OOR conduct in camera
review of records if a “deemed denial” is appealed by a requester. Then, if an
agency is unhappy with OOR’s decision, the agency can simply appeal to a court
with jurisdiction for de novo review. The Township maintains neither the General
Assembly, nor this Court, intended for OOR to be a records clearinghouse for
every agency in the Commonwealth.
22
The Township reiterates the trial court’s reasoning on this issue.
Moreover, it asserts, contrary to OOR’s allegation that the Township
“leapfrogged” OOR’s fact-finding and adjudicatory functions, the trial court
expressly left the question of whether or not the records at issue in the underlying
appeal before OOR are subject to disclosure for OOR to decide.
The Township further argues OOR fails to recognize the fundamental
distinguishing fact between Center Township and this case: in Center Township,
the agency baldly alleged a privilege applied whereas, here, the Township
expressly provided reasoning as to why the records are exempt from disclosure by
way of a verified, non-conclusory position statement. Nowhere in any pleading or
otherwise did OOR allege bad faith by the Township. Thus, the record before
OOR in the underlying appeal must be sufficiently developed for OOR to issue a
final determination.
In sum, the Township contends, OOR has not provided sufficient
evidence to show the trial court committed an error of law or abused its discretion.
OOR does not have unlimited authority to demand production of records or a
privilege log for in camera review of records. Rather, in camera review is only
appropriate and warranted when the record is undeveloped. The Township asserts
that OOR baldly argues the record before it in the underlying appeal here is
“undeveloped,” but it completely avoids any analysis of how or why the record
before it is “undeveloped.” Br. of Appellee at 20. Because, in part, the Township
provided a detailed, non-conclusory position statement, the trial court found the
23
record before OOR in the underlying appeal is sufficient for OOR to issue a final
determination. For the reasons set forth above, this Court should affirm the trial
court. Also, the Township contends, the trial court recognized the financial impact
on agencies if OOR is given unfettered discretion to require in camera review and
production of privilege logs where: (1) those rights have been implied (but not
expressly stated) under the RTKL; and (2) where the record is sufficiently
developed to permit a decision on the merits by OOR.
2. Analysis
As more fully explained below, the trial court erred in two ways. First
and foremost, the trial court abused its discretion in second-guessing the fact-
finder’s efforts to create a record appropriate for appellate review. Further, the
trial court erred legally by accepting the Township’s flawed analysis of the
predecisional deliberative exception.
One of an appeals officer’s duties under Chapter 11 of the RTKL is to
develop an adequate factual record on appeal. Bagwell (citing Levy v. Senate of
Pa., 94 A.3d 436, 442 (Pa. Cmwlth.), appeal denied, 106 A.3d 727 (Pa. 2014)
(“[i]n the ordinary course of RTKL proceedings [receipt of evidence] will occur at
the appeals officer stage and a reviewing court will defer to the findings of the
appeals officer.”) (citing Bowling)).
An appeals officer functions as the initial fact-finder, and acts in a
quasi-judicial capacity pursuant to Section 1102 of the RTKL. Center Twp.
(appeals officer may conduct in camera review to perform fact-finding functions);
Levy (appeals officer receives evidence to resolve factual disputes as reviewing
24
courts rarely act as fact-finder); see also Dep’t of Labor & Indus. v. Heltzel, 90
A.3d 823 (Pa. Cmwlth. 2014) (remanding to OOR as initial fact-finder to consider
application of exemption in the first instance). In these circumstances, it is
incumbent upon an appeals officer to create an adequate factual record in order to
issue a determination. 65 P.S. §67.1102(a); Bagwell.
Moreover, an appeals officer should consider procedural matters as
the fact-finder in the first instance. Center Twp.; Bagwell v. Dep’t of Educ, 76
A.3d 81 (Pa. Cmwlth. 2013) (en banc). In Center Township, we reasoned that
appeals officers had the authority to conduct in camera review “to better enable
appeals officers to develop an adequate record for judicial review, and at the same
time, to render an informed and reasoned decision ….” Center Twp., 95 A.3d at
370.
Thus, appeals officers are empowered to develop the record to ensure
Chapter 13 courts may perform appellate review without the necessity of
performing their own fact-finding. Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113,
1121 (Pa. Cmwlth. 2015); Center Twp.; Levy.
In Center Township, the township partially denied an RTKL request
seeking the township solicitor’s invoices. Specifically, the township redacted
portions of the invoices allegedly pertaining to litigation services on the grounds
the redacted portions concerned the progress and avenues explored in litigation and
litigation-related issues and, as such, were exempt from disclosure under the
attorney-client privilege or work-product doctrine. The requester appealed to OOR
25
and asked that OOR conduct in camera review of the documents. OOR directed
the township to provide a privilege log identifying each record withheld and
explaining why a privilege applied to each redacted entry. The township declined
to do so. OOR subsequently granted the requester’s request for in camera review
and directed the township to produce for in camera review unredacted copies of all
responsive records withheld. The township refused, asserting OOR lacked
statutory authority to compel and undertake in camera review.
Thereafter, OOR filed a petition to enforce its order in this Court,
seeking an order compelling the Township to produce the records in unredacted
form for in camera inspection. After undertaking a thorough examination of case
law concerning the availability and benefits of in camera review, a unanimous en
banc panel of this Court rejected the township’s argument that OOR lacked
authority to conduct in camera review.
Thus, in camera review is appropriate to assess claims of privilege
and predecisional deliberations. See, e.g., Bagwell v. Dep’t of Educ., 103 A.3d
409 (Pa. Cmwlth. 2014) (en banc). Additionally, review of an index or “privilege
log” of withheld records may be proper in determining whether records are exempt
from disclosure. Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth.
2013).
Moreover, while testimonial affidavits found to be relevant and
credible may provide sufficient evidence in support of a claimed exemption, id.,
conclusory affidavits, standing alone, are insufficient to prove records are exempt.
26
Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (en banc);
Carey v. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013).
In light of our decision in Center Township, OOR’s appeals officer
acted within his broad discretion here in requesting that the Township produce the
records at issue for in camera inspection as well as an in camera inspection index
referencing each record by number and identifying each item within each record
that is claimed to be exempt. This conclusion is directly supported by our decision
in Center Township. More particularly, in this case: (1) Requester made a request
for OOR to conduct in camera review of the records at issue, see R.R. at 11a, 209a;
(2) the Township submitted a verified memorandum to OOR in which it asserted
the records at issue were exempt under, among other things, the predecisional
deliberative exception, but, as set forth more fully below, did not fully or correctly
discuss or analyze this exception; and, (3) the Township refused to provide an
index or “privilege log.”
Based on these circumstances, OOR’s appeals officer was within his
authority to direct the Township to produce the records at issue for in camera
inspection and, at a minimum, an in camera inspection index or “privilege log.”
We defer to OOR’s appeals officer, the initial fact-finder, on this procedural issue
rather than second-guess his attempt to adequately develop a record beyond the
intertwined assertions of fact and law set forth in the Township’s verified
memorandum of law on issues such as the predecisional deliberative exception.4
4
See Section 1102(b)(3) of the RTKL (“In the absence of a regulation, policy or
procedure governing appeals under this chapter, the appeals officer shall rule on procedural
matters on the basis of justice, fairness and the expeditious resolution of the dispute.”); Levy
(Footnote continued on next page…)
27
Further, the predecisional deliberative exception set forth in Section
708(b)(10)(i) codifies the deliberative process privilege. Section 708(b)(10)(i)
exempts from disclosure:
(10)(i) A record that reflects:
(A) The internal, predecisional deliberations of an
agency, its members, employees or officials or
predecisional deliberations between agency members,
employees or officials and members, employees or
officials of another agency, including predecisional
deliberations relating to a budget recommendation,
legislative proposal, legislative amendment,
contemplated or proposed policy or course of action or
any research, memos or other documents used in the
predecisional deliberations.
65 P.S. §67.708(b)(10)(i)(A). “According to the language of Section 708(b)(10)(i)[A],
protected records must be predecisional and deliberative.” Kaplin v. Lower
Merion Twp., 19 A.3d 1209, 1214 (Pa. Cmwlth. 2011).
Thus, in order to establish the predecisional deliberative exception,
the Township was required to show that the information is: (1) internal; (2) prior to
agency decision or course of action; and, (3) deliberative in character. Scolforo.
“Only … confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice [are] protected as ‘deliberative.’” Carey, 61 A.3d at 378.
(continued…)
(citing Bowling) (describing success of administrative regime of RTKL; concluding most
disputes will end at appeals officer level); see also Bowling, 75 A.3d at 477 (concurring op. by
Saylor, J., favoring wide latitude in appeals officer discretion and deference to administrative-
level developments); id. at 478-79 (dissenting op. by Castille, C.J., expressing concern about
fact-finding in the Commonwealth Court in RTKL cases).
28
Factual information is not deliberative in character. McGowan (remanding to
OOR to assess factual content and direct disclosure of same in redacted form).
To qualify for exemption under the predecisional deliberative
exception, an agency must explain how the information withheld reflects or shows
the deliberative process in which an agency engages during its decision-making.
Carey. Agencies may meet this burden by submitting an affidavit that sets forth
sufficient facts enabling a fact-finder to draw its own conclusions. Id.
Here, in its verified memorandum, the Township misidentified the
required elements to establish the predecisional deliberative exception. See R.R. at
157a. Further, the Township cited no authority in support of the purported test it
set forth to establish this exception. Id. More importantly, the Township’s
discussion of the predecisional deliberative exception omitted reference to the third
element, that the information is deliberative in character. R.R. at 157a-58a.
Rather, the conclusory statements regarding the predecisional deliberative
exception in the memorandum are strikingly similar to statements this Court
previously held were insufficiently specific to establish records were exempt under
the predecisional deliberative exception. See Scolforo, 65 A.3d at 1104 (“It is not
enough to include in the [a]ffidavit a list of subjects to which internal deliberations
may have related. The [a]ffidavit must be specific enough to permit [OOR] or this
Court to ascertain how disclosure of the entries would reflect the internal
deliberations on those subjects.”)
29
Based on the Township’s failure to more completely address the key
element of the predecisional deliberative exception, that the information is
“deliberative in character,” it was entirely appropriate for OOR’s appeals officer to
request in camera review of the records at issue or an in camera inspection index
or “privilege log.” In short, it is simply unclear from the Township’s verified
memorandum whether the records at issue are exempt from disclosure under the
predecisional deliberative exception. Thus, OOR’s appeals officer acted well
within his authority in requesting more information under these circumstances.
For the foregoing reasons, we reject as entirely without merit the
Township’s strained arguments of OOR misusing its authority to direct in camera
review. If anything, we express concern about the potential for an agency to by-
pass OOR as the fact-finder in the first instance and seek a more receptive
audience in a Chapter 13 court. Thus, we reverse the trial court’s order to the
extent it reversed OOR’s order.
Having now confirmed the law in this area, it is hard to imagine any
significant public policy interest supporting judicial review of non-final OOR
orders which seek to create an adequate record. In other words, it would be a very
rare case which would support interlocutory review of an OOR order similar to the
one here.
ROBERT SIMPSON, Judge
Judge Cohn Jubelirer concurs in the result only.
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Worcester :
:
v. : No. 711 C.D. 2015
:
Office of Open Records, :
and James Mollick :
:
Appeal of: Office of Open Records :
ORDER
AND NOW, this 8th day of January, 2016, the order of the Court of
Common Pleas of Montgomery County at No. 2014-27790, dated March 27, 2015,
that denied the Office of Open Records’ Amended Motion to Quash Appeal is
AFFIRMED. The order of the Court of Common Pleas of Montgomery County at
No. 2014-27790, dated March 27, 2015, that reversed the September 26, 2014
Order of Office of Open Records Order in James Mollick v. Township of
Worcester, OOR Dkt. No. AP 2014-1179 is REVERSED. This matter is
remanded to the Court of Common Pleas of Montgomery County for further
remand to the Office of Open Records for proceedings consistent with the
foregoing opinion.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge