Office of General Counsel v. B. Bumsted & LNP Media Group, Inc. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Office of General Counsel, :
Petitioner :
:
v. : No. 1764 C.D. 2019
: Argued: December 8, 2020
Brad Bumsted and LNP Media :
Group, Inc., :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE BROBSON FILED: February 23, 2021
Office of General Counsel (OGC) petitions for review of a final determination
(Final Determination) of the Pennsylvania Office of Open Records (OOR), dated
November 20, 2019, which granted, in part, and denied, in part, an appeal filed by
Paula Knudsen (Knudsen) and LNP Media Group, Inc. (LNP) under the
Right-to-Know Law (RTKL).2,3 OOR granted Requesters’ appeal because the
requested records were not from individuals seeking employment with an agency or
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
3
LNP and Knudsen initiated the subject RTKL request and the appeal to OOR. Thereafter,
they filed an application to substitute Brad Bumsted (Bumsted), a current employee of LNP, for
Knudsen as a respondent in this case due to Knudsen’s departure from her employment with LNP.
By order dated September 23, 2020, we granted the application and amended the caption of this
matter. The reference to “Requesters” herein collectively refers to LNP and either Knudsen or
Bumsted, depending on the time period.
predecisional deliberations that are exempt from public access under the RTKL.
For the reasons that follow we affirm, in part, vacate, in part, and remand the matter
for further proceedings.
I. BACKGROUND
On October 10, 2019, Requesters filed a RTKL request with OGC, seeking
any “[a]pplications submitted to OGC for one vacancy on the Commonwealth
Court,” noting that the applications were due on October 9, 2019, at 5:00 p.m.4
(Reproduced Record (R.R.) at 4a.) On October 17, 2019, OGC denied the request,
claiming the “applications and related information of applicants not hired by an
agency are exempt from access” pursuant to Section 708(b)(7)(iv) of the
RTKL, 65 P.S. § 67.708(b)(7)(iv). (R.R. at 5a.) OGC also stated that it “has not
provided records that would reveal the internal, predecisional deliberations of an
agency, its officials or employees, or records used in such deliberations,”
citing Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10). Finally, OGC
maintained that “records or portions of the requested records are protected by the
attorney-client or attorney-work product privileges,” citing Section 102 of the
RTKL, 65 P.S. § 67.102. Requesters appealed OGC’s refusal to OOR that same day.
(R.R. at 1a-3a.)
4
In Pennsylvania, when a judicial vacancy occurs on the Commonwealth Court in the
middle of a term, the Governor is empowered to appoint an individual as judge with the advice
and consent of two-thirds of the members elected to the Senate. Pa. Const. art. V, § 13(b).
After the Governor’s appointment and the Senate’s confirmation, the judge “serve[s] for a term
ending on the first Monday of January following the next municipal election more than ten months
after the vacancy occurs or for the remainder of the unexpired term whichever is less.” Id.
On November 19, 2019, Governor Tom Wolf nominated J. Andrew Crompton for the
Commonwealth Court seat made vacant by the retirement of the Honorable Robert Simpson, and
the Senate confirmed the appointment on December 18, 2019. OGC represents that on that same
day, it provided Requesters with a copy of the redacted application of the Honorable J. Andrew
Crompton. (OGC’s Brief at 6.)
2
OGC, in response to the appeal, provided a position statement supporting the
denial along with an affidavit from OGC’s Communications Coordinator,
Alexis Dinniman, dated October 29, 2019 (Dinniman Affidavit).5 (R.R. at 16a.)
Ms. Dinniman attested in her affidavit:
5. The responsive records consist of applications submitted by
individuals who seek appointment to a vacancy on Pennsylvania’s
Commonwealth Court. The applications are used by [OGC] and its
designees to make recommendations regarding the filling of such
vacancy[] and to assist the Office of Governor in [its] deliberations
regarding such appointment.
6. These applications remain internal to [OGC] and its designees[] and
are not provided to unrelated third parties.
(Id.)
On November 20, 2019, OOR granted Requesters’ appeal, in part, and denied
it, in part. (Final Determination at 1.) OOR concluded that, because OGC failed to
demonstrate the applications were records of individuals seeking employment with
an agency, the exemption provided by Section 708(b)(7)(iv) of the RTKL did not
apply. (Final Determination at 4-7.) OOR also concluded that, because OGC failed
to demonstrate that the applications reflected internal predecisional deliberations,
the exemption provided by Section 708(b)(10)(i)(A) of the RTKL also did not apply.
(Final Determination at 7-10.) OOR directed OGC to provide Requesters with the
responsive applications, but it authorized OGC to redact personal identification
information.6 (Final Determination at 10.) This appeal followed.
5
OGC raised the attorney-client and attorney-work product privileges in its response to the
RTKL request but did not address either privilege in the OOR appeal or the appeal before this
Court. Accordingly, we deem OGC’s claims that the requested records are protected by either or
both privileges waived, and the argument will not be considered in this opinion.
6
It appears that this authorization to allow OGC to redact personal identification
information is the extent to which OOR denied Requesters’ appeal. As background, OGC
3
II. ISSUES
On appeal,7 OGC argues that OOR erred when it concluded that the
applications were not records of individuals seeking employment with an agency
subject to the employment application exemption set forth in Section 708(b)(7)(iv)
of the RTKL. OGC also argues that OOR erred when it concluded that applications
were not protected by the deliberative process exemption provided by
Section 708(b)(10) of the RTKL.
III. DISCUSSION
“The enactment of the RTKL in 2008 was a dramatic expansion of the public’s
access to government documents” and the “objective of the RTKL ‘is to empower
citizens by affording them access to information concerning the activities of their
government.’” Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013) (quoting SWB
Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012)). “[C]ourts should
liberally construe the RTKL to effectuate its purpose of promoting ‘access to official
government information in order to prohibit secrets, scrutinize actions of public
requested in its position statement to OOR that if OOR reversed any portions of its response to the
RTKL request, thereby requiring the production of responsive documents, OOR should direct that
e-mail addresses, personal financial information, and telephone numbers or personal information
of individuals be redacted pursuant to Section 708(b)(6) of the RTKL, 65 P.S. § 67.708(b)(6).
(See Final Determination at 10.) Section 708(b)(6) of the RTKL exempts personal identification
information from disclosure, including “a person’s Social Security number, driver’s license
number, personal financial information, home, cellular or personal telephone numbers,
personal e-mail addresses, employee number or other confidential personal identification
number[,]” “[a] spouse’s name, marital status or beneficiary or dependent information.”
65 P.S. § 67.708(b)(6)(i)(A), (B). Requesters have informed the Court that they do not object to
the redaction of personal identification information in the applications should OGC be ordered to
produce them. (Requesters’ Brief at 24.)
7
On appeal from OOR in RTKL cases, this Court’s standard of review is de novo, and our
scope of review is plenary. Bowling v. Off. of Open Recs., 990 A.2d 813 (Pa. Cmwlth. 2010),
aff’d, 75 A.3d 453, 477 (Pa. 2013).
4
officials, and make public officials accountable for their actions.’” Id. (quoting
Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025,
1034 (Pa. Cmwlth. 2011)). Generally, the RTKL requires state and local agencies
to provide access to public records that are within their possession upon request. 8
Furthermore, Section 305 of the RTKL, 65 P.S. § 67.305, makes clear that the
presumption that a record within an agency’s possession is a public record does not
apply if it is proven that “(1) the record is exempt under Section 708 [of the
RTKL]; (2) the record is protected by a privilege; or (3) the record is exempt from
disclosure under any other Federal or State law or regulation or judicial order or
decree.” Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), requires the agency
that is receiving the RTKL request to bear the burden to prove, by a preponderance
of the evidence, that the requested record is exempt from public access.9
A. Exemption Under Section 708(b)(7)(iv) of the RTKL
We first address whether OOR erred in concluding that the requested records
were not exempt from disclosure under Section 708(b)(7)(iv) of the RTKL.
Section 708(b)(7) of the RTKL generally exempts from access by a requester certain
“records relating to an agency employee.” Subsection (iv) of Section 708(b)(7) of
the RTKL specifically exempts “[t]he employment application of an individual who
is not hired by the agency.” OGC argues that Section 708(b)(7)(iv) exempts the
requested records—i.e., applications of individuals who sought but did not receive
an appointment to fill the vacant elected office of a commissioned Commonwealth
8
See Sections 301 and 302 of the RTKL, 65 P.S. §§ 67.301 and .302.
9
“A preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.” Delaware Cnty. v. Schaefer ex rel. Phila.
Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012) (en banc) (citing Jaeger v. Bureau of Workers’
Comp. Fee Rev. Hearing Off. (Am. Cas. of Reading c/o CNA), 24 A.3d 1097, 1101 n.10 (Pa.
Cmwlth. 2011)).
5
Court judge—from access, because it exempts applications of individuals who are
“not hired by an agency.”
OGC, in support of its position, notes that Section 708(b)(7)(i) of the
RTKL, 65 P.S. § 67.708(b)(7)(i), exempts from disclosure a “letter of reference or
recommendation pertaining to the character or qualifications of an
identifiable individual, unless it was prepared in relation to the appointment of an
individual to fill a vacancy in an elected office or an appointed office requiring
Senate confirmation.” (Emphasis added.) OGC seems to suggest that
Section 708(b)(7)(i)’s express exception to the exemption for letters of reference or
recommendations related to appointments to fill a vacancy in an elected office
constitutes a tacit acknowledgment that materials relating to appointments generally
are protected under Section 708(b)(7) of the RTKL, 65 P.S. § 67.708(b)(7).
OGC reasons that, if vacancy appointment applications are not among the types of
material protected, then there would have been no need for the General Assembly to
except letters of reference or recommendation for vacancy appointments from the
general exemption.
Requesters counter that Section 708(b)(7)(iv) of the RTKL is not applicable
to the request at issue, because Commonwealth Court judges are not “agency
employees” within the limited meaning of the RTKL and, therefore, applications for
appointment to the Commonwealth Court are not exempt from disclosure under the
RTKL’s employment application exemption in Section 708(b)(7)(iv). Requesters
argue that the exception to the exemption is a reference to “public officials,” not
“agency employees,” and that OGC’s interpretation directly conflicts with the
threshold qualification of Section 708(b)(7) of the RTKL that expressly provides
that the record exemptions only apply to agency employees. Requesters’ argument
6
relies upon a distinction for RTKL purposes between prospective “agency
employees” and prospective “appointees for public office positions,” such as
Commonwealth Court judgeships.10
Requesters, in addition to their statutory construction argument, advance a
policy argument as to why the requested records should not be exempt from access,
emphasizing that the RTKL is “remedial legislation 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.”
See Bowling, 990 A.2d at 824. Accordingly, “exemptions from disclosure must be
narrowly construed.” Id. Requesters maintain that, “[j]ust as the public would have
access to the full list of candidates who appear on the ballot were the Commonwealth
Court position to be filled through the electoral process, the public is entitled to know
who sought consideration for the vacant seat that was filled by gubernatorial
appointment.” (Requesters’ Brief at 9.)
When interpreting a statute, this Court is guided by the Statutory Construction
Act of 1972 (Statutory Construction Act), 1 Pa. C.S. §§ 1501-1991, which provides
that “[t]he object of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa. C.S. § 1921(a).
“The clearest indication of legislative intent is generally the plain language of a
statute.” Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a
10
Section 708(b)(7) of the RTKL, in addition to the exemptions set forth in
Section 708(b)(7)(i) and (iv), also exempts the following records relating to an agency
employee: (1) a performance rating or review; (2) the result of a civil service or similar test
administered by a Commonwealth agency, legislative agency, or judicial agency; (3) workplace
support services program information; (4) written criticisms of an employee; (5) grievance
material, including documents related to discrimination or sexual harassment; (6) information
regarding discipline, demotion, or discharge contained in a personnel file (but not the final action
of an agency that results in demotion or discharge); and (7) an academic transcript.
7
statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). Only “[w]hen the
words of the statute are not explicit” may this Court resort to statutory construction.
1 Pa. C.S. § 1921(c). “A statute is ambiguous or unclear if its language is subject to
two or more reasonable interpretations.” Bethenergy Mines Inc. v. Dep’t of Env’t
Prot., 676 A.2d 711, 715 (Pa. Cmwlth.), appeal denied, 685 A.2d 547 (Pa. 1996).
Moreover, “[e]very statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa. C.S. § 1921(a). It is presumed “[t]hat the General Assembly
intends the entire statute to be effective and certain.” 1 Pa. C.S. § 1922(2).
Thus, no provision of a statute shall be “reduced to mere surplusage.”
Walker, 842 A.2d at 400 (citing 1 Pa. C.S. § 1921(a)). Finally, it is presumed
“[t]hat the General Assembly does not intend a result that is absurd, impossible of
execution or unreasonable.” 1 Pa. C.S. § 1922(1).
We begin by examining the plain language of the RTKL to determine whether
the General Assembly’s intent as to the exemption set forth in Section 708(b)(7)(iv)
is clear or whether the statute is ambiguous, the latter of which would require the
Court to apply the tools of statutory construction. Whether the exemption under
Section 708(b)(7)(iv) applies to the requested records is dependent upon whether an
individual appointed to fill a vacancy in an elected judicial office may be considered
an “agency employee” or to have been “hired by the agency,” such that individuals
who applied for the judicial appointment but did not receive it are “individuals not
hired by the agency,” thereby protecting their applications from access by the public.
Section 102 of the RTKL does not define the term “agency employee,” but it
provides multiple definitions involving the word “agency.” Section 102 defines an
“agency” as “[a] Commonwealth agency, a local agency, a judicial agency or a
8
legislative agency.” 65 P.S. § 67.102. It further defines a “Commonwealth agency”
as:
(1) Any office, department, authority, board, multistate agency or
commission of the executive branch, an independent agency and a
State-affiliated entity. The term includes:
(i) The Governor’s Office.
(ii) The Office of Attorney General, the Department of the
Auditor General and the Treasury Department.
(iii) An organization established by the Constitution of
Pennsylvania, a statute or an executive order which
performs or is intended to perform an essential
governmental function.
(2) The term does not include a judicial or legislative agency.
Id. It defines a “judicial agency” as “[a] court of the Commonwealth or any other
entity or office of the unified judicial system” and defines a “legislative agency,”
in pertinent part, as including the House of Representatives and the Senate. Id.
The General Assembly, however, did not define the terms “agency employee,”
“employee,” “appointee,” or “appointment” in the RTKL.11 See id.
Our review of the plain language of Section 708(b)(7)(iv) of the RTKL
leads us to conclude that the statute is ambiguous, because its language is subject to
two or more reasonable interpretations. Section 708(b)(7) generally addresses
exemptions for “agency employees,” and one could reasonably assert that a judicial
appointee is not an “agency employee” under the RTKL, such that the exemptions
in Section 708(b)(7), including that in subparagraph (iv) for employment
applications of individuals not hired by the agency, do not apply to the requested
records. Nevertheless, because subparagraph (i) of Section 708(b)(7) specifically
carves out an exception to the exemption for letters of reference or recommendations
11
These terms are also not defined in the Statutory Construction Act. See 1 Pa. C.S. § 1991.
9
prepared in relation to the appointment of an individual to fill a vacant elected office,
one could also reasonably conclude that appointed individuals necessarily are
encompassed within the term “agency employee.” Thus, application of statutory
construction principles is appropriate and necessary, given that more than one
reasonable interpretation of Section 708(b)(7)(iv) exists.
When the words and phrases of a statute are not defined by the statute,
Section 1903(a) of the Statutory Construction Act provides that we shall construe
the words and phrases “according to rules of grammar and according to their
common and approved usage; but technical words and phrases and such others as
have acquired a peculiar and appropriate meaning or are defined in this part, shall be
construed according to such peculiar and appropriate meaning or definition.” 1 Pa.
C.S. § 1903(a). We must consider, therefore, the common approved usage of
“employee,” “appointee,” and “appointment.”
An “employee” is defined as “[a] person in the service of another under any
contract for hire, express or implied, oral or written where the employer has the
power or right to control and direct the employee in material details of how the
work is performed.” Black’s Law Dictionary 471 (5th ed. 1979). Webster’s Third
New International Dictionary of the English Language (Webster’s Third New
International Dictionary) defines an “employee” as “one employed by another in a
position below the executive level and usually for wages.” Webster’s Third New
International Dictionary 743 (3d ed. 1993). An “appointee” is “[a] person who is
appointed or selected for a particular purpose, as the appointee under a power of
appointment is a person who receives the benefit of the power.” Black’s Law
Dictionary 91 (5th ed. 1979). Webster’s Third New International Dictionary defines
an “appointee” as “one that is appointed (as to an office).” Webster’s Third New
10
International Dictionary 105 (3d ed. 1993). An “appointment” is the “selection or
designation of a person, by the person or persons having authority therefor, to fill an
office or public function and discharge the duties of the same.” Black’s Law
Dictionary 91 (5th ed. 1979). Webster’s Third New International Dictionary defines
“appointment” as a “designation of a person to hold a non-elective office or perform
a function.” Webster’s Third New International Dictionary 105 (3d ed. 1993).
Applying the common usage definitions to this case, the Governor sought
applications from individuals interested in a gubernatorial appointment to a
judicial vacancy on the Commonwealth Court. Neither the Governor nor the
Commonwealth agencies he oversees entered into an employer/employee
relationship with any of the applicants. Further, while the Governor appoints
individuals to judicial vacancies, he does not hire them. Indeed, his appointment
alone is not enough to bestow the judicial office on the successful applicant,
as any appointee is subject to the Pennsylvania Senate’s advice and consent.
Pa. Const. art. V, § 13(b). Only if the Senate gives its consent does the appointee
become a public official of the Commonwealth. The appointee does not become an
employee of the Governor or the agencies under his jurisdiction.
Similarly, using the common usage definitions, individuals who applied for a
gubernatorial appointment to a judicial vacancy but whom the Governor passed over
cannot be considered employees who were not hired by OGC or the Governor’s
Office. These applicants never applied for employment with OGC or the Governor.
We conclude, based on the common approved usage of the words “employee,”
“appointee,” and “appointment,” that the individuals who submitted applications for
a gubernatorial appointment are neither agency employees nor are they individuals
who were not hired by an agency, and, consequently, the exemption provided by
11
Section 708(b)(7)(iv) of the RTKL does not apply to the applications of individuals
seeking a judicial appointment from the Governor to fill the vacancy. While it is not
necessary for us to utilize the other tools of statutory construction in reaching this
conclusion, we note that there are two other reasons to support our determination.
First, we are persuaded by Requesters’ argument that the language the
General Assembly used in Section 708(b)(7) of the RTKL differs from other
provisions in the Section 708(b) exemptions. For example, Section 708(b)(6)(ii) of
the RTKL, 65 P.S. § 67.708(b)(6)(ii), specifies that “[n]othing in this
paragraph shall preclude the release of the name, position, salary, actual
compensation or other payments or expenses, employment contract,
employment-related contract or agreement and length of service of a public official
or an agency employee.” (Emphasis added.) Further, in Section 708(b)(12) of
the RTKL, 65 P.S. § 67.708(b)(12), the General Assembly exempts from disclosure
“[n]otes and working papers prepared by or for a public official or agency employee
used solely for that official’s or employee’s own personal use.” (Emphasis added.)
Finally, the language the General Assembly uses in Section 708(b)(13) of
the RTKL, 65 P.S. § 67.708(b)(13), exempts from disclosure “[r]ecords that would
disclose the identity of an individual who lawfully makes a donation to an agency
unless the donation is intended for or restricted to providing remuneration or
personal tangible benefit to a named public official or employee of the agency.”
(Emphasis added.)
The foregoing clearly establishes that the General Assembly distinguishes
between public officials and employees of Commonwealth agencies in the RTKL.
It thus could have included the terms “public official” and “agency employee” in the
specific language of Section 708(b)(7)(iv) of the RTKL, so that the exemption
12
applied to both “agency employees” and individuals seeking an appointment to a
vacant elected office (i.e., a public official). The General Assembly, however, did
not do so when it adopted the express language of Section 708(b)(7), and we will
not construe the statute to include words that the General Assembly omitted.
Second, we are also persuaded by Requesters’ argument that the
Sunshine Act, 65 Pa. C.S. §§ 701-716, makes distinctions between “appointments”
and “employment” that are instructive to our interpretation of Section 708(b)(7) of
the RTKL. We have held:
The [RTKL] is one of a series of legislative enactments designed to
provide a comprehensive format governing public access to the
meetings and hearings of public agencies. The other statutes are now
embodied in the Sunshine Act. Because they relate to the same class of
things, information about actions by public agencies, the [RTKL] and
Sunshine Act are in pari materia. Indeed, this has been the practice
for Commonwealth agencies since 1974. Therefore, they shall be
construed together, if possible, as one statute.
Silver v. Borough of Wilkinsburg, 58 A.3d 125, 128 (Pa. Cmwlth. 2012) (citing
Schenck v. Twp. of Center, Butler Cnty., 893 A.2d 849, 853 (Pa. Cmwlth. 2006)),
appeal denied, 76 A.3d 540 (Pa. 2013). The Sunshine Act makes a distinction
between “employees” and “appointees,” in that “employees” are “employed” while
“appointees” or “public officers” are “appointed.” 65 Pa. C.S. § 708(a)(1).
Specifically, in providing the reasons an agency may hold an executive session,
the Sunshine Act provides:
To discuss any matter involving the employment, appointment,
termination of employment, terms and conditions of employment,
evaluation of performance, promotion or disciplining of any specific
prospective public officer or employee or current public officer or
employee employed or appointed by the agency, or former public
officer or employee, provided, however, that the individual employees
or appointees whose rights could be adversely affected may request, in
writing, that the matter or matters be discussed at an open meeting.
13
Id. Requesters argue that “[i]f public officers, also referred to as appointees in the
Sunshine Act, were subsumed within the class of ‘employees,’ then the repeated
mention of ‘appointees’ and ‘public officers’ throughout this provision would be
meaningless surplusage” and, consequently, applying the presumption against
redundancies provided by 1 Pa. C.S. § 1922, a public officer or appointee is
distinguishable from an employee under the Sunshine Act. (Requesters’ Brief at 13.)
Requesters submit that “[r]eading [Section] 708(a)(1) of the Sunshine Act in
conjunction with the RTKL, it follows that a public officer—such as a
Commonwealth Court judge appointed to fill a vacancy on the Court—is not an
‘agency employee.’” (Requesters’ Brief at 14.) We agree with Requesters that the
Sunshine Act further supports that OOR did not err when it determined that the
Section 708(b)(7)(iv) exemption does not apply to the applications at issue in this
case.
B. Section 708(b)(10) of the RTKL—Predecisional Deliberation Exemption
OGC’s second argument is that the judicial vacancy applications are protected
by the deliberative process exemption provided by Section 708(b)(10)(i) of the
RTKL. Section 708(b)(10)(i) of the RTKL, exempts 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.
(B) The strategy to be used to develop or achieve the successful
adoption of a budget, legislative proposal or regulation.
65 P.S. § 67.708(b)(10)(i). This Court has reasoned that “‘[t]he deliberative process
privilege benefits the public and not the officials who assert the privilege . . .
14
[because] if governmental agencies were forced to operate in a fishbowl, the frank
exchange of ideas and opinions would cease and the quality of administrative
decisions would consequently suffer.’”12 McGowan v. Pa. Dep’t of Env’t Prot.,
103 A.3d 374, 381 (Pa. Cmwlth. 2014) (quoting Joe v. Prison Health Servs., Inc.,
782 A.2d 24, 33 (Pa. Cmwlth. 2001)).
“To prove the predecisional deliberation exception, an agency is required to
show three things: ‘(1) the information is internal to the agency; (2) the information
is deliberative in character; and[] (3) the information is prior to a related decision,
and thus ‘predecisional.’” McGowan, 103 A.3d at 381 (quoting Carey, 61 A.3d
at 379). “[A]n agency must explain how the information withheld reflects or shows
the deliberative process in which an agency engages during its decision-making.”
Carey, 61 A.3d at 379.
OOR determined that OGC did not demonstrate that the responsive
applications reflect internal, predecisional deliberations. (Final Determination
at 7-10.) OGC argues that OOR took “an unduly restrictive view of the types of
documents that may be used in deliberations” when it determined that the
applications were not exempt as internal predecisional deliberations. (OGC’s Brief
at 13.) OGC maintains that the exemption applies to broad classifications of records,
including research, memos, or other documents used in the predecisional
deliberations, rather than specifically identified examples. (OGC’s Brief at 16, 17.)
Conversely, Requesters argue the requested applications: (1) are not internal to
OGC; (2) are not deliberative in character; and (3) do not constitute “research,
12
This Court has held that: (1) the predecisional deliberative exception at
Section 708(b)(10)(i) codifies the deliberative process privilege; (2) “the requisite elements of
proof are identical[;]” and (3) “case law interpreting the deliberative process privilege applies.”
Carey v. Dep’t of Corr., 61 A.3d 367, 378 n.6 (Pa. Cmwlth. 2013).
15
memos, or other documents” within the meaning of the deliberative process
exemption. (Requesters’ Brief at 18-23.) Our review of the arguments indicates that
neither party is contesting that the applications at issue were reviewed and used prior
to a related decision—i.e., the Governor’s decision on whom to appoint to fill the
judicial vacancy. Accordingly, we will instead focus on the first two factors OGC
must prove for the Section 708(b)(10)(i) exemption to apply to the applications.
We first consider whether the information is internal to the agency.
McGowan, 103 A.3d at 381. In determining whether the applications are internal to
OGC, we have held that “[r]ecords may satisfy the ‘internal’ element when they are
maintained internal to one agency or among governmental agencies.”
Off. of Governor v. Davis, 122 A.3d 1185, 1193 (Pa. Cmwlth. 2015).
Requesters seek to distinguish the applications at issue because they were submitted
to OGC by third-party applicants seeking a judicial vacancy appointment and,
therefore, are not communications within one agency or among multiple agencies.
Requesters rely on our recent decision in Finnerty v. Pennsylvania Department of
Community and Economic Development, 208 A.3d 178, 189 (Pa. Cmwlth.),
appeal granted, 222 A.3d 755 (Pa. 2019), to support this argument.
In Finnerty, the requester submitted a RTKL request for financial records to
the Department of Community and Economic Development (DCED), which had
entered into a contract with a financial consultant to act as a coordinator in
addressing a municipality’s financial problems. Finnerty, 208 A.3d at 180.
The records requested included documents exchanged between the contracted
financial consultant and DCED. Id. at 181. DCED withheld records from its
response, in relevant part, based on the predecisional deliberation exemption set
forth in Section 708(b)(10)(i) of the RTKL. Id. at 182. The requester appealed
16
DCED’s refusal to OOR, which, after conducting an in camera review, concluded
that some of the withheld records were exempt as they reflected internal,
predecisional deliberations. Id. at 184. The requester next appealed OOR’s decision
to this Court, arguing that exceptions to the RTKL should be interpreted narrowly
and that internal records should be limited to records shared within the agency or
among several agencies. Id. at 185.
This Court addressed the question of whether information shared between an
agency and an entity with which the agency contracts is still “internal to an agency,”
and, after determining that Section 708(b)(10)(i) of the RTKL does not explicitly
address this question, utilized the tools of the Statutory Construction Act (1 Pa. C.S.
§ 1921(c)) to ascertain the General Assembly’s intent. Id. at 186. We held that, due
to the contractual relationship between DCED and the consultant, the deliberative
information exchanged between them was exempt under Section 708(b)(10)(i) of
the RTKL. Id. at 187. We reasoned that the “General Assembly contemplated that
[DCED], in order to assist municipalities facing financial distress, would require the
assistance of a consultant.” Id. “In reaching this conclusion, we are guided by the
fact that state ‘agencies occasionally will encounter problems outside their ken, and
it clearly is preferable that they enlist the help of outside experts skilled at
unravelling . . . knotty complexities.’” Id. (citations omitted). We affirmed OOR’s
decision. Id. at 190.
Here, Requesters’ focus on the fact that there is no contractual relationship
between the applicants seeking to fill the judicial vacancy and any agency is
misplaced. Independent of any contract, we have previously held that
“[t]he origination of records from outside an agency does not preclude application
of the RTKL exceptions.” Davis, 122 A.3d at 1193 (citing Bagwell v. Dep’t of
17
Educ., 76 A.3d 81, 90 (Pa. Cmwlth. 2013)). “Private persons and entities may create
correspondence and send it to an agency, thereby potentially making it a record of
the agency.” Bagwell, 76 A.3d at 90. In this case, the fact that third parties sent the
applications to OGC does not preclude the application of this exemption.
Further, based on the Dinniman Affidavit, OGC maintained the applications within
OGC and its designees. (R.R. at 16a.) We, therefore, agree with OGC and OOR
that the applications meet the first factor in the applicability of the
Section 708(b)(10)(i) deliberate process exemption.
We next focus on the second factor: whether the information is deliberative
in character. Section 708(b)(10)(i)(A) of the RTKL specifies that predecisional
deliberations of an agency include topics such as “budget recommendation[s],
legislative proposal[s], legislative amendment[s], contemplated or proposed
polic[ies] or course[s] of action or any research, memos or other documents used in
the predecisional deliberations.” (Emphasis added.) “Only information that
constitutes confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice is protected as deliberative.” Carey, 61 A.3d at 378-79
(citing In re Interbranch Comm’n on Juv. Just., 988 A.2d 1269, 1277-78 (Pa. 2010)).
We agree with OGC that Section 708(b)(10)(i) of the RTKL applies to broad
classifications of records and is not limited to the specifically identified examples
listed therein; however, the focus should not be on what the document is titled as
much as the nature of the information contained within the document.
The Pennsylvania Supreme Court pronounced:
Information that is purely factual, even if decisionmakers used it in their
deliberations[,] is usually not protected. . . . [A]bsent a claim that
disclosure would jeopardize state secrets, memoranda consisting only
of compiled factual material or purely factual material contained in
deliberative memoranda and severable from its context would generally
be available [for disclosure].
18
McGowan, 103 A.3d at 385 (quoting Cmwlth. v. Vartan, 733 A.2d 1258, 1264
(Pa. 1999) (plurality) (citations omitted) (emphasis omitted)). “In Carey, this Court
adopted our Supreme Court’s discussion in Vartan that purely factual material is
severable and, in general, should be disclosed even when it is located within a
document containing exempted predecisional deliberations.” Id. at 386 (citing
Carey, 61 A.3d at 378-80). We reasoned:
Although it can be difficult in some instances to segregate purely
factual material from deliberative communications, most of the
disputes
may be able to be decided by application of the simple test
that factual material must be disclosed but advisory
material, containing opinions and recommendations, may
be withheld. The test offers a quick, clear, and predictable
rule of decision, but courts must be careful not to become
victims of their own semantics. [The exemption] is
intended to protect the deliberative process of government
and not just deliberative material. Perhaps in the great
majority of cases, that purpose is well served by focusing
on the nature of the information sought.
McGowan, 103 A.3d at 386 (quoting Mead Data Cent., Inc. v. Dep’t of Air Force,
566 F.2d 242, 256 (D.C. Cir. 1977)). Simply stated, “[f]actual information is not
deliberative in character.” Twp. of Worcester v. Off. of Open Recs., 129 A.3d 44, 61
(Pa. Cmwlth. 2016).
Requesters submit, based on a copy of the application of the individual
appointed to fill the judicial vacancy that OGC provided them on
December 18, 2019, that:
[t]he majority of the information contained within the requested records
at issue here—work experience, education, and other background
information about the applicants for the Commonwealth Court
vacancy—is factual in nature, not deliberative . . . . The requested
applications contain factual information about the applicants that they
themselves have submitted; the records are thus not deliberative in
19
character and for that reason . . . cannot be withheld under the
[d]eliberative [p]rocess [e]xemption.
(Requesters’ Brief at 21.) This supplements what Ms. Dinniman attested to in her
affidavit that “[t]he responsive records consist of applications submitted by
individuals who seek appointment to a vacancy on Pennsylvania’s Commonwealth
Court.” (R.R. at 16a.) Absent from Ms. Dinniman’s affidavit is any averment
claiming that the applications themselves contain any notes or opinions that could
be considered deliberative. Moreover, the scope of the request does not include any
memoranda that contains recommendations of one applicant being more qualified
than another. Rather, the request seeks the applications, which contain work
experience, education, and other background information about the applicants.
Accordingly, we conclude that OGC did not meet its burden of proof that the
applications at issue are in themselves “deliberative,” and, consequently, they are
not exempt predecisional deliberations pursuant to Section 708(b)(10)(i) of the
RTKL.
C. Constitutional Protections Afforded Third Parties
Citizens of the Commonwealth, pursuant to Article I, Section I of the
Pennsylvania Constitution, have a right to informational privacy—i.e., to control
access to and dissemination of their personal information.13 Pa. State Educ. Ass’n
v. Dep’t of Cmty. & Econ. Dev., 148 A.3d 142, 150 (Pa. 2016) (PSEA). Third parties
whose personal information is contained within a public record must be afforded
13
Article I, Section 1 provides:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursing their own happiness.
Pa. Const. art. I, § 1.
20
notice and an opportunity to be heard in a record request proceeding. City of
Harrisburg v. Prince, 219 A.3d 602, 619 (Pa. 2019). Before the government may
release personal information, it must conduct a balancing test to determine whether
the right of informational privacy outweighs the public’s interest in dissemination.
PSEA, 148 A.3d at 144. It is the obligation of the agency disseminating the requested
record to perform the balancing test, unless legislative pronouncements or prior
decisions of Pennsylvania courts have already done so. Prince, 219 A.3d at 619;
Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017).
Pursuant to a PSEA balancing test, constitutional considerations may necessitate
redaction of personal information not otherwise permissible under the RTKL.
Reese, 173 A.3d at 1159.
This Court has observed, “with some concern, that this arrangement relies on
agencies to protect third-party privacy interests.” West Chester Univ. of Pa. v.
Rodriguez, 216 A.3d 503, 511 (Pa. Cmwlth. 2019). We have explained:
Notably, the constitutional right to informational privacy inheres
not in agencies, but in individuals who are not usually parties to the
RTKL proceeding. The RTKL does not require that such third parties
receive notice that a determination affecting their constitutional rights
has been appealed. Even when interested third parties learn of an
appeal, they cannot participate as parties to the proceeding, and they
may supply additional information or argument only at . . . OOR’s
discretion. . . .
In an ideal situation we would rely on those who claim the right
to assert it timely. Because of the lack of meaningful procedural due
process protections afforded to those whose private information is
sought through the RTKL, that obligation must fall on the agencies that
hold this information and have the wherewithal, in the context of the
RTKL, to protect it from disclosure.
Id. at 510-11 (citations omitted) (footnote omitted). We have also cautioned that
“there may come a time when a requester seeks a public record that does not fall
21
under an exemption set forth in the RTKL, but where disclosure of the public record
would violate a third [] party’s rights under the Pennsylvania Constitution.” Id.
at 511 (quoting Governor’s Off. of Admin. v. Purcell, 35 A.3d 811, 821 (Pa.
Cmwlth. 2011) (Brobson, J., concurring)).
Here, it is likely that the responsive documents may contain information
potentially subject to a constitutional right to privacy. Although OOR has granted
OGC the authority to redact from the responsive records personal identification
information protected from access by Section 708(b)(6)(i)(A) and (B), 65 P.S.
§ 67.708(b)(6)(i)(A), (B), it is unclear from the record (1) whether OGC notified the
individuals whose applications OGC must produce,14 and (2) whether OGC
performed the balancing test required by PSEA and its progeny. Accordingly, the
Court will vacate the portion of the Final Determination that ordered OGC to provide
Requesters with the applications of the individuals who were not selected for the
judicial vacancy appointment and remand the matter to OOR to provide notice and
an opportunity to be heard to third parties and to perform the balancing test required
under PSEA.
IV. CONCLUSION
Based on the foregoing analysis, we will affirm the Final Determination to the
extent that it rejected OGC’s claim that the requested records were exempt under
Sections 708(b)(7)(iv) and 708(b)(10)(i) of the RTKL. We nonetheless will vacate
the portion of the Final Determination that ordered OGC to provide Requesters with
the applications of the individuals who were not selected for the judicial vacancy
appointment. We remand this matter to OOR for the sole purpose of reconsidering
14
OGC’s attorney represented at the December 8, 2020 oral argument that he was unsure
if the individuals whose applications OGC must produce were notified of their potential release.
22
the portion of its decision ordering disclosure of the requested records in light of the
Pennsylvania Supreme Court’s decision in PSEA.
P. KEVIN BROBSON, Judge
Judge Crompton did not participate in the decision of this case.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Office of General Counsel, :
Petitioner :
:
v. : No. 1764 C.D. 2019
:
Brad Bumsted and LNP Media :
Group, Inc., :
Respondents :
ORDER
AND NOW, this 23rd day of February, 2021, it is hereby ordered that the
November 20, 2019 Final Determination of the Pennsylvania Office of Open
Records (OOR) is AFFIRMED, in part, and VACATED, in part. This matter is
REMANDED to OOR for further proceedings consistent with the accompanying
opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge