A. Couloumbis & S. Janesch v. Senate of PA ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela Couloumbis and :
Sam Janesch, :
Petitioners : No. 160 C.D. 2022
:
v. : Argued: December 12, 2022
:
Senate of Pennsylvania, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: July 18, 2023
Angela Couloumbis and Sam Janesch (collectively, Requesters) petition
for review of the January 28, 2022 Final Determination of the Legislative Reference
Bureau (LRB) Appeals Officer (LRB Appeals Officer), who affirmed the Senate of
Pennsylvania (Senate) Open Records Officer’s (Senate ORO) partial denial of the
request for records sought from the Senate of Pennsylvania (Senate) by Requesters
under the Right-to-Know Law (RTKL).1 Upon review, we vacate and remand.2
I. FACTS AND PROCEDURAL HISTORY
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
A separate but similar appeal by Requesters regarding the RTKL and the Pennsylvania
House of Representatives (House) is being decided contemporaneously with this appeal. See Janesch
v. Pennsylvania House of Representatives (Pa. Cmwlth., No. 142 C.D. 2022, filed July 18, 2023). By
Order dated May 9, 2022, this Court denied the joint application of Requesters, the House, and Senate
to consolidate the two appeals because the two cases have separate certified records as they are
appeals from separate entities. However, because the two appeals are related, the cases were argued
seriately.
The relevant facts of this appeal are not in dispute. On October 15, 2021,
Requesters submitted a RTKL request to the Senate ORO, seeking the following: 1)
invoices, bills, vouchers, or other financial statements reflecting payment for legal
work performed by outside law firms or individual lawyers for the Senate or its
employees; 2) engagement or retainer letters signed by any Senate employee or Senate
member to provide legal services; 3) expense reports detailing all payments for legal
services to outside law firms or individual lawyers hired by the Senate; and 4) any other
documents that identify the Senate’s legal engagements with outside law firms or
lawyers (Request). (Reproduced Record (R.R.) 2a.) The Request covered the period
between January 1, 2021, and October 15, 2021. Id. On October 19, 2021, the Senate
notified Requesters that a 30-day extension was necessary to respond to the request as
the response required redacting the records. See Section 902(a)(1), (4), and (7) of the
RTKL, 65 P.S. §§ 67.902(a)(1), (4), (7); R.R. 8a.
On November 19, 2021, the Senate’s ORO granted, in part, and denied, in
part, the Request, and in total, provided 1,039 pages electronically to Requesters. 3
(R.R. 4a-8a.) The Senate provided a report of each caucus and the institutional offices,
which was followed by copies of engagement letters and financial records covered
within that report. The Senate denied the Request, in part, by redacting portions from
the produced records.4 The Senate’s ORO explained that three sets of redactions were
required under Section 706 of the RTKL, 65 P.S. § 67.706, including: (1) redaction of
the Federal Tax identification number found within financial records as it is protected
information under 26 U.S.C. § 6103(a); (2) redaction of the bank account numbers and
3
The Senate used a digital sharing platform to share the documents on November 19, 2021.
(R.R. 4a.)
4
Redactions of records otherwise subject to disclosure are deemed denials of a RTKL request.
See Section 706 of the RTKL, 65 P.S. § 67.706.
2
routing information as a “confidential personal identification number”; and (3)
redaction of information protected under the privileges of “attorney[ ]work product
doctrine” and/or “attorney-client privilege” found within the lines of engagement
letters and invoices outlining billable hours. (R.R. 4a-7a.) Moreover, the Senate stated:
In providing access to the legal engagement letters and invoices,
redactions were made in consideration of Levy v. Senate of
[Pennsylvania], 65 A.3d 361, 373 (Pa. 2013) (approving
redactions to legal invoices on attorney[-]client privilege
grounds, holding descriptions of legal services that address the
client’s motive for seeking counsel, legal advice, strategy, or
other confidential communications are undeniably protected
under the attorney[-]client privilege) and the attorney[ ]work
product doctrine which allows the protection of the mental
impressions and processes of an attorney acting on behalf of a
client, regardless of whether the work product was prepared in
anticipation of litigation. Bousamra v. Excela Health, 210 A.3d
967, 976 (Pa. 2019).
(R.R. 6a.) (internal quotations omitted).
On December 8, 2021, Requesters appealed the Senate ORO’s redactions
to the Senate Appeals Officer, who recused, and the appeal was transferred to the LRB.
(R.R. 10a-14a.) In their appeal, Requesters specifically challenged the redactions
based on the attorney-client privilege and work product doctrine, and asserted the
redactions were inappropriate under the Sunshine Act.5 Requesters also argued the
Senate had not provided any evidence showing that the privileges claimed applied.
(R.R. 13a.) Requesters requested that the LRB order all redactions be unveiled or, in
the alternative, the LRB conduct in camera review of the records at issue.
5
65 Pa. C.S. §§ 701-716.
3
The Senate submitted a memorandum of law to the LRB reiterating it had
properly redacted the records pursuant to the attorney-client and work product
privileges, and further added that “many of the records produced to [Requesters] were
also redacted on [the] basis of the speech and debate privilege.” (R.R. 224a.) In
support, the Senate submitted a privilege log (Privilege Log) and four attestations of
(1) Crystal H. Clark, Esq., General Counsel to the Senate Republican Caucus; (2)
Megan Martin, Secretary of the Senate; (3) C.J. Hafner, II, Esq., Chief Counsel to the
Senate Democratic Leader; and (4) Michael A. Sarfert, Esq., Counsel to the Senate
Chief Clerk (Attestations). (R.R. 311a-61a.)
The Privilege Log includes:
1) The record type;
2) The record dates;
3) The authors;
4) The recipients;
5) A description of the legal work; and
6) The legal basis for the redaction.
(R.R. 348a-61a.) The Attestations each include, among other items, the following:
1) The attestant’s name, position, and job responsibilities;
2) The attestant’s familiarity with the Request;
3) The details of the searches each performed for responsive documents;
4) The individual attorneys and law firms who generated responsive
documents;
5) The specific categories, subjects, and topics of information that were
redacted from the Request; and
4
6) The rationale why information was redacted under attorney-client,
work product, and speech and debate privileges.
(R.R. 311a-61a.) Additionally, one of the Attestations includes a specific example
showing how the redactions were performed in a scenario where the subject matter was
repeated in the engagement letter and the invoice. (R.R. 314a.) The Senate asserted
that its comprehensive Privilege Log and four Attestations established that the
redactions made to the 1,039 pages of records produced to Requesters were appropriate
and justified. Furthermore, the Senate argued the Senate ORO’s “limited and focused”
redactions of certain aspects of the records were necessary to preserve privilege. (R.R.
215a.)
By a decision dated January 28, 2022, the LRB Appeals Officer affirmed
the partial denial of the Request. (Requesters’ Br., Ex. A.) The LRB Appeals Officer
concluded that the redactions found in the produced engagement letters and invoice
captions “were based on attorney-client ‘privilege’ or attorney[ ]work product
doctrine.” (Requesters’ Br., Ex. A at 16-117.) The LRB Appeals Officer further
concluded that Requesters failed to “provide[] any factual basis for objecting” to the
Senate’s “characterization” that redactions based on the speech and debate privilege
were “limited to those portions of the records containing descriptions of specific legal
work performed within the sphere of legislative activity and confidential
communications with legal counsel concerning legislative matters.” (Requesters’ Br.,
Ex. A at 11.) The LRB Appeals Officer determined that Requesters’ reliance on the
Sunshine Act was misplaced as the appeal does not involve a public meeting.
(Requesters’ Br., Ex. A at 12.) The LRB Appeals Officers expressly rejected
Requesters’ demand for in[ ]camera review holding that “in-camera inspection would
be inappropriate and unnecessarily intrude upon privilege.” (Requesters’ Br., Ex. A at
5
8.) The LRB Appeals Officer conducted a line-by-line review of the produced
documents and determined that “[a] focus on the redacted portion of each document
verified that the likely content of the shaded sections is subject to redaction as a
description of ‘the client’s motive for seeking counsel, legal advice, strategy, or other
confidential communications[.]’” Id.
Thereafter, Requesters petitioned for review to this Court.
II. ISSUES PRESENTED6
On appeal, Requesters assert the LRB erred in concluding that the
Senate’s redactions of subject matter of outside attorneys’ services from engagement
letters and invoice captions was proper under the RTKL. Requesters have narrowed
the scope of their appeal and challenge only the redactions made to 24 of the 1,039
pages produced, arguing that the redacted information is not subject to attorney-client
privilege, the work product privilege, or the speech and debate privilege. (Requesters’
Br. at 9, 15-16.)
Ultimately, Requesters are asking this Court to order either that the
Request be released immediately or that the LRB hold a hearing and review the Request
in camera. Requesters rely on the Pennsylvania Supreme Court’s interpretation of the
RTKL in Levy, 65 A.3d 361, and argue an in camera review of the records is warranted
because the engagement letters and invoice captions are unlikely to reveal privileged
information. Additionally, Requesters argue that, like the information at issue in
Reading Eagle Co. v. Council of City of Reading, 627 A.2d 305 (Pa. Cmwlth. 1993),
6
Initially, Requesters objected to Kleinbard LLC’s representation of the Senate in this matter
as the firm was among those whose records were subject to the Request and Requesters’ redaction
challenges. The LRB Appeals Officer concluded that Kleinbard LLC was not required to withdraw
its representation. (Requesters’ Br., Ex. A at 6-7). Requesters no longer seek review of that portion
of the LRB Appeals Officer’s Final Determination.
6
which was necessary to fulfilling the purposes of the Sunshine Act, the information at
issue in this case is necessary to fulfilling the purposes of the RTKL.
III. DISCUSSION
A. Standard and Scope of Review
When deciding questions of law under the RTKL, such as whether certain
information is exempt from disclosure by the attorney-client, attorney work product,
or speech and debate privileges, our scope of review is plenary, and our standard of
review is de novo. Levy v. Senate of Pennsylvania, 34 A.3d 243 (Pa. Cmwlth. 2011)
(Levy II). In reviewing matters under Section 1301 of the RTKL, 65 P.S. § 67.1301
(pertaining to Commonwealth, legislative,7 and judicial agencies or a judicial agency),
“we act in our appellate jurisdiction, but we independently review the appeals officer’s
orders, and we may substitute our own findings of fact.” Id. (citing Bowling v. Office
of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) (en banc)). See also Padgett
v. Pennsylvania State Police, 73 A.3d 644, 646 n.3 (Pa. Cmwlth. 2013).
B. Applicable Law
1. Privilege Generally
The RTKL is “designed to promote access to official government
information in order to prohibit secrets, scrutinize the actions of public officials, and
make public officials accountable for their actions.” Pennsylvania State Police v.
McGill, 83 A.2d 476, 479 (Pa. Cmwlth. 2014). The exceptions to disclosure of public
records must narrowly be construed. Id.Pursuant to Section 701(a) of the RTKL, legislative or financial records
generally are accessible to the public unless otherwise provided by law. 65 P.S. §
7
The Senate is a “legislative agency.” Section 102 of the RTKL, 65 P.S. § 67.102.
7
67.701(a). Similarly, legislative records8 in the possession of a legislative agency are
presumed to be available to the public unless exempted under Section 708 of the RTKL,
65 P.S. § 67.708, exempted under any other Federal or State law, regulation, or judicial
order or decree, or are protected by a privilege. Section 305(b) of the RTKL, 65 P.S.
§ 67.305(b). Privileged documents also are excluded from the definition of “public
record” under Section 102 of the RTKL, 65 P.S. § 67.102. The RTKL defines privilege
to include “[t]he attorney[ ]work product doctrine, the attorney-client privilege, the
doctor-patient privilege, the speech and debate privilege or other privilege recognized
by a court interpreting the laws of this Commonwealth.” Id. Although an agency has
some discretion under the RTKL to release otherwise exempt records, it lacks
discretion to release a privileged record. Section 506(c)(2) of the RTKL, 65 P.S. §
67.506(c)(2). The RTKL permits the redaction of the “information which is not subject
to access” should the legislative record contain information that is protected by
privilege. Section 706 of the RTKL, 65 P.S. § 67.706.
Where an agency is asserting a privilege, the agency bears the burden of
proof to demonstrate by sufficient facts that the privilege applies. Levy, 34 A.3d at 249
(citing, in part, Department of Transportation v. Office of Open Records, 7 A.3d 329,
335 (Pa. Cmwlth. 2010)). See also Section 903(2) of the RTKL, 65 P.S. § 67.903(2)
(where an agency denies a RTKL request, in whole or in part, the agency must state in
writing the “specific reasons for the denial, including a citation of supporting legal
authority”).
2. The Levy Decisions
Because the Levy decisions decided by this Court and the Pennsylvania
Supreme Court are germane to this appeal, we begin by reviewing them here at length.
8
Legislative records include financial records. Section 102 of the RTKL, 65 P.S. § 67.102.
8
All three decisions involve the same set of facts and the same two RTKL requests. In
Levy II, we considered the appeal of Marc Levy, an Associated Press Member, from
the decision of the Pennsylvania Senate’s Open Records Appeals Officer. Levy
requested documents in categories very similar to those involved in this case: bills,
contracts, and payment records relating to the retention of outside counsel by one
individual senator and any current or former member of the Senate Democratic Caucus.
The Senate produced many responsive records with substantial redactions of both client
identities and descriptions of the legal work provided, relying on the attorney-client
privilege to justify the redactions. Levy appealed. Before the Senate Appeals Officer,
the Senate asserted additional reasons for the redactions, including the attorney work
product privilege and the grand jury and criminal investigation exemptions. The Senate
Appeals Officer ultimately concluded that the Senate had not provided sufficient
information to satisfy all of the elements of the attorney-client privilege and
accordingly permitted the Senate to supplement the record with affidavits or other
additional evidence. Levy appealed to this Court before the Senate provided any
further evidence. Levy I, 34 A.3d at 244-45.
This Court ordered in camera review of the Senate’s redactions by Senior
Judge James R. Kelley, acting as Special Master. After receiving Special Master Judge
Kelley’s report and recommendations, an en banc panel of this Court concluded that
client identities and most general descriptions of legal services were not protected by
the attorney-client privilege. We further concluded, however, that specific legal
descriptions that would reveal confidential communications between attorney and
client appropriately were redacted. We finally concluded that the Senate had waived
all alternative legal grounds supporting the redactions because it raised them for the
9
first time before the Senate Appeals Officer. We accordingly affirmed, in part, and
reversed, in part, the Senate Appeals Officer’s final determination. Id. at 250-52, 255.
The Pennsylvania Supreme Court granted the Senate’s allocatur petition
to consider three issues: (1) whether client identities are protected by the attorney-client
privilege, (2) whether descriptions of legal services are protected by the attorney-client
privilege, and (3) whether an agency waives any reasons for non-disclosure that were
not asserted in the initial written denial. Levy II, 65 A.3d at 367. The Pennsylvania
Supreme Court ultimately affirmed this Court’s decision that client identities and
general descriptions of legal services are not protected by the attorney-client privilege.
The Pennsylvania Supreme Court reversed, however, our determination that the Senate
had waived its alternative grounds for non-disclosure. The Court, therefore, remanded
to this Court for our consideration of whether the attorney work product privilege,
grand jury secrecy, and criminal investigation exemptions applied to support the
Senate’s redactions. Id. at 383. On remand, in pertinent part, we concluded that the
attorney work product privilege did not protect from disclosure general descriptions of
legal services. Levy v. Senate of Pennsylvania, 94 A.3d 436, 444 (Pa. Cmwlth. 2014)
(Levy III). Specific descriptions of legal services, however, as we concluded in Levy I,
remain protected by the attorney-client privilege. Id. at 444 n.9.
3. Attorney-Client Privilege
The Pennsylvania Supreme Court in Levy II summarized as follows the
attorney-client privilege, particularly as it relates to the purposes of the RTKL:
[The Pennsylvania Supreme Court] has repeatedly noted that the
attorney-client privilege is deeply rooted in our common law and
is the most revered of our common law privileges. The General
Assembly has defined attorney-client privilege identically for
10
purposes of criminal and civil law . . . .[9] We recently observed
that the purpose of the attorney-client privilege is to encourage
full and frank communication between attorneys and their clients
and thereby promote broader public interests in the observance
of law and administration of justice. We acknowledged,
however, that the attorney-client privilege is often in tension with
the truth-determining process of the justice system, and, in this
case, with the RTKL’s goal of government transparency. In
balancing these competing purposes, we note that not all
information passed between client and attorney is privileged, but
rather the privilege is limited to communications related to the
legal advice sought by the client.
Levy II, 65 A.3d at 368-69. See also Levy I, 34 A.3d at 248 (internal citations and
quotations omitted). Further,
the determination of the applicability of the attorney-client
privilege does not turn on the category of the information, such
as a client’s identity or address, or the category of a document,
such as whether it is an invoice or fee agreement. Instead, the
relevant question is whether the content of the writing will result
in disclosure of information otherwise protected by the attorney-
client privilege. For example, descriptions of legal services that
address the client’s motive for seeking counsel, legal advice,
strategy, or other confidential communications are undeniably
protected under the attorney client privilege. In contrast, an entry
that generically states that counsel made a telephone call for a
specific amount of time to the client is not information protected
by the attorney-client privilege but, instead, is subject to
disclosure under the specific provisions of the RTKL.
9
See 42 Pa. C.S. §§ 5916, 5928 (“[In a criminal or civil matter,] counsel shall not be competent
or permitted to testify to confidential communications made to him by his client, nor shall the client
be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the
client.”).
11
Id. at 606 (internal citation omitted).10 To establish the application of the attorney-
client privilege, an agency must demonstrate the following:
(1) The asserted holder of the privilege is or sought to become
a client;
(2) The person to whom the communication was made is a
member of the bar of a court, or his subordinate;
(3) The communication relates to a fact of which the attorney
was informed by his client, without the presence of
strangers, for the purpose of securing either an opinion of
law, legal services or assistance in a legal matter, and not
for the purpose of committing a crime or tort; and
(4) The privilege has been claimed and is not waived by
the client.
Pennsylvania Department of Education v. Bagwell (Bagwell 2015), 114 A.3d 1113,
1123-24 (Pa. Cmwlth. 2015) (citing, in part, Nationwide Mutual Insurance Company
v. Fleming, 924 A.2d 1259 (Pa. Super. 2007), aff’d by an equally divided court, 992
A.2d 65 (Pa. 2010)).
10
Senior Judge Kelley, Special Master in Levy I, concluded as follows regarding whether
and to what extent descriptions of legal services may be redacted under the attorney-client privilege:
To the extent that the documents specify the issues or laws researched by
the attorneys, specific services provided and the names of individuals with
whom the attorneys communicated, the Special Master agrees that such
information has the potential to reveal the confidential communications
shared by attorney and client, the motive of the client in seeking
representation and litigation strategy, and is privileged. However, to the
extent that the redacted information relates to the general nature of the
services performed, e.g., memo, telephone call, research, such general
descriptions of the work performed are not subject to the attorney-client
privilege and are not entitled to redaction.
Levy I, 34 A.3d at 257. See also Levy II, 65 A.3d at 373 (“[W]e approve . . . Special Master Judge
Kelley’s careful line-by-line analysis . . . .”).
12
4. Work Product Privilege
This Court, in Levy III, described as follows the attorney work product
privilege and its interplay with the RTKL as follows:
Application of the attorney work[ ]product [privilege] is
described in [Pennsylvania Rule of Civil Procedure (Pa.
R.Civ.P.)] 4003.3, which precludes “disclosure of the mental
impressions of a party’s attorney or his or her conclusions,
opinions, memoranda, notes or summaries, legal research or
legal theories.” In the RTKL context, the doctrine protects the
mental impressions, theories, notes, strategies, research and the
like created by an attorney in the course of his or her professional
duties, particularly in anticipation or prevention of litigation
from disclosure.
The work[ ]product [privilege], while closely related to the
attorney-client privilege, provides broader protection. The
doctrine protects any material prepared by the attorney in
anticipation of litigation, regardless of whether it is confidential.
The underlying purpose of the work product doctrine is to guard
the mental processes of an attorney, providing a privileged area
within which he can analyze and prepare his client’s case. The
purpose is not to shield mundane and uninforming entries in
billing records, such as the bare fact that a telephone conference
occurred.
Levy III, 94 A.3d at 446 (internal citations and most internal quotations omitted). See
also BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019); Heavens v. Pennsylvania
Department of Environmental Protection, 65 A.3d 1069, 1077 (Pa. Cmwlth. 2013). In
considering the distinction between unprotected general descriptions of legal services
and non-disclosable descriptions that would reveal protected information, we reasoned:
Although the general descriptions such as drafting a memo,
making telephone call, performing research, observing a trial,
reflect work performed, without further detail[ ] they do not reveal
an attorney’s mental impressions, theories, notes, strategies,
13
research and the like. Disclosure of the general tasks performed
in connection with the fee charged reveals nothing about
litigation strategy. They simply explain the generic nature of the
service performed and justify the charges for legal services
rendered. Where, as here, the taxpayers are footing the bill for
the legal services, they are entitled to know the general nature of
the services provided for the fees charged. Thus, we conclude
such rote entries regarding the general nature of legal services
performed are not entitled to protection under the work[ ]product
doctrine.
Levy III, 94 A.3d at 444 (internal citations and footnote omitted).
5. Speech and Debate Privilege
In addition to the attorney-client privilege and work product privilege, the
RTKL also defines the speech and debate privilege. Section 102 of the RTKL, 65 P.S.
§ 67.102. Importantly, not all activities of state legislators are protected by the speech
and debate privilege. League of Women Voters of Pennsylvania v. Commonwealth,
177 A.3d 1000, 1005 (Pa. Cmwlth. 2017) (League of Women Voters I). To assert the
speech and debate privilege, the agency asserting the privilege must establish that the
information concerns activity “within the sphere of legitimate legislative activity.” Id.“Legitimate legislative activities” include “fact-finding, information gathering, and
investigative activities, which are essential prerequisites to the drafting of bills and the
enlightened debate over proposed legislation.” Id. at 1003 (quoting Government of the
Virgin Islands v. Lee, 755 F.2d 514, 521 (3d Cir. 1985)).
C. Analysis
Requesters do not dispute that the attorney-client and work product
privileges apply to RTKL requests for legislative records and may support redactions
of privileged information. They also do not argue that the Senate has made redactions
of client identities or general descriptions of legal services in direct violation of the
14
Levy decisions. Rather, Requesters contend that the Senate’s proffered evidence is
“vague and conclusory.” (Requesters’ Br. at 18.) Requesters further assert the Senate
has not met its burden of establishing the speech and debate privilege as the evidence
is “boilerplate recitations” of the privilege parameters. (Requesters’ Br. at 22.) We
address Requesters’ issues in turn.
1. Subject Matters
Requesters argue that the Senate and the LRB interpreted the Levy
decisions too broadly to protect general description of the subject matters of the
Senate’s legal representation by outside firms. Requesters argue that the Senate
redacted general information that is “highly unlikely to convey client confidences or
otherwise fall within the ambit of one of the Senate’s asserted privileges.” (Requesters’
Br. at 11.) Requesters contend that subject matters in engagement letters and invoices
may be protected by the attorney-client and work product privileges, but only, under
Levy II, where the revelation of those subject matters would reveal the client’s motive
for seeking legal counsel, legal advice, strategy, or other confidential communications.
(Requesters’ Br. at 21.) Requesters argue that “[t]he public needs to know the general
subject matter of the Senate’s legal engagements in order to ‘scrutinize the actions of
public officials’ and to ‘make public officials accountable for their actions’ – the
RTKL’s central aims.” (Requesters’ Br. at 21-22.) Requesters further argue that
“[p]ublic scrutiny can have only a limited effect if the Senate is permitted to conceal
from the public even the most basic, general information about its reasons for engaging
outside attorneys.” (Requesters’ Br. at 22.)
Pursuant to the Levy decisions, general descriptions of legal services, i.e.,
that a lawyer made a telephone call, had a meeting, or sat in conference with other
lawyers or the client, are not protected and may not be redacted from attorney invoices
15
or engagement letters. Specific descriptions of legal services that would divulge
confidential client communications or an attorney’s mental impressions, legal theories
or analysis, notes, strategies, and the like are protected. Levy II, 65 A.3d at 373; Levy
I, 34 A.3d at 254; Levy III, 94 A.3d at 444. These are the only general categories of
privileged information of which the Levy decisions speak. Their application and the
propriety of any redactions made by an agency to a RTKL document production on the
grounds of privilege must be addressed on a case-by-case basis. Thus, whether subject
matters in engagement letters and invoices may be redacted depends on whether their
disclosure would compromise the protection of the confidential information identified
above. If not, then the privileges do not apply and the subject matters must be
disclosed.
Here, the Senate redacted subject matters from the 24 engagement letters
and invoices in dispute. The information remaining on the engagement letters and
invoices is general information revealing that outside legal counsel was retained,
hourly rate, and billable hours, among other information. The Senate’s Privilege Log
and Attestations explain that the redactions were made because the 24 subject matters
would reveal client motives for seeking counsel or some other category of protected
information. Moreover, the Attestations provide a general description of the legal
services provided, i.e., phone calls with clients and drafting of legal documents, and
the Privilege Log provides more specific information, i.e., legal advice regarding labor
and employment matters. (R.R. 348a-61a.) We conclude that although the Senate
asserts the categorical protection of production of subject matters of legal
representations, whether contained in engagement letters or invoices, the Levy
decisions do not provide for such categorical protection. Rather, each subject matter
is to be analyzed independently to determine whether its disclosure would compromise
16
confidential information. Thus, to determine whether the Senate appropriately redacted
the subject matters, we must determine whether the Attestations and the Privilege Log
were sufficient.
2. Attestations and Privilege Log
One method an agency may use in meeting the burden of proof that a
record is exempt from disclosure is through relevant and credible testimonial affidavits
or attestations. Payne v. Pennsylvania Department of Health, 240 A.3d 221, 226 (Pa.
Cmwlth. 2020); Sherry v. Radnor Township School District, 20 A.3d 515, 520-21 (Pa.
Cmwlth. 2011). In addition, a privilege log can serve as sufficient evidence to establish
that a record is exempt from disclosure, particularly where the information in the log
is bolstered with averments in an attestation. Smith on behalf of Smith Butz, LLC v.
Pennsylvania Department of Environmental Protection, 161 A.3d 1049, 1059 n.5 (Pa.
Cmwlth. 2017). Privilege logs typically list the date, record type, author, recipients,
and description of the withheld record. Id.Here, the Senate provided three relevant Attestations addressing the
redactions and the Senate’s asserted privileges.11 These Attestations include
conflicting statements of what was redacted from the documents. Specifically, the
Attestation of Michael A. Sarfert, Esq., states: “With regard to the redactions for
attorney-client privileged information, I was careful to not make any blanket
redactions.” (R.R. 340a) (emphasis added). However, two Attestations state that the
subject matter of an engagement is redacted from engagement letters and the file name
assigned by outside counsel in most circumstances or situations “where the
11
The Senate submitted four Attestations in support of all redactions made to the 1,039 pages
of records produced in response to the Request. (R.R. 312a-46a.) This appeal is limited to 24 pages
of the original 1,039 pages produced, and therefore, because the Attestation of Secretary Megan
Martin does not reference the 24 pages in dispute, this Attestation can be disregarded for the purposes
of this appeal. (R.R. 335a-37a.)
17
representation is not otherwise a matter of public record in a court of law.” (R.R.
314a, 330a., 341a-42a) (emphasis added). Thus, the Attestations contradict themselves
by stating no blanket redactions were done, but then stating the Senate categorically
redacted information if the litigation is not filed in a court of law. The Levy decisions
do not support such blanket redactions because subject matter redactions must be done
on a case-by-case basis. Moreover, the example provided in Crystal H. Clark, Esq.’s
Attestation describing an engagement letter, invoice, and file name to all include
“medical marijuana” is inapposite. Although the example provided for consistent
redactions across all applicable documents, “medical marijuana” does not reveal
privileged information such as mental impressions of an attorney or motive for the legal
engagement. Therefore, we conclude that based on the Attestations, we do not have
enough information to determine whether the Senate met its burden to establish the
applicability of any of the privileges it asserts.
Next, we turn to the Senate’s Privilege Log. The Senate’s Privilege Log
notes the following reason for the redactions at issue: “Engagement letter and legal
invoices reflecting confidential communications with client for purposes of securing
legal advice regarding legislative matter and describing legal services performed
regarding same[.]” (R.R. 350a-61a.) (emphasis added). We note the Privilege Log
asserts for these same documents a combination of attorney-client, work product, and
speech and debate privileges. This blurs the line between these privileges. Moreover,
the type of information contained in engagement letters and captions of invoices is
unlikely to reveal “a fact of which the attorney was informed by the client, without the
presence of strangers, for the purpose of securing an opinion of law, legal services or
assistance in a legal matter.” Pennsylvania Department of Education v. Bagwell, 131
A.3d 638, 656 (Pa. Cmwlth. 2016) (Bagwell 2016) (citation omitted). This information
18
in engagement letters and captions of invoices also is unlikely to reveal “the mental
impressions” of any attorney involved. Id. at 657 (citation omitted). Neither attorney-
client nor work product privilege protects “mere facts.” Id. at 657 (citation omitted).
The Privilege Log states only generally that the engagement letters and invoices
contained “confidential communications with client for purposes of securing legal
advice.” (R.R. 350a-61a.) We, therefore, conclude that based upon the information
provided in the Privilege Log, we cannot determine whether the redactions were
appropriately made pursuant to both the attorney-client and work product privileges.12
3. In Camera Review
It is well established that where an agency sufficiently explains the basis
for non-disclosure through attestation, privilege log, or both, in camera review is not
necessary. UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of
Human Services, 187 A.3d 1046, 1060 (Pa. Cmwlth. 2018). As in Levy I, in camera
review in certain circumstances is both available and helpful to this Court in deciding
RTKL matters. Because, without more information we cannot determine if the Senate
has met its burden to establish the applicability of either the attorney-client or work
product privileges to its redactions, we conclude that in camera review is necessary.
D. CONCLUSION
12
Although we conclude that the Attestations and Privilege Log are inadequate to enable us
to determine whether the Senate’s redactions are appropriate on any of the asserted grounds, we
nevertheless conclude that, in any event, the speech and debate privilege was not created for the types
of records subject to this Request. The Pennsylvania Supreme Court has disapproved that such a
testimonial privilege exists and stated, in dicta: “[t]his Court has never interpreted our Speech and
Debate Clause as providing anything more than immunity from suit, in certain circumstances, for
individual members of the General Assembly.” League of Women Voters of Pennsylvania v.
Commonwealth, 178 A.3d 737, 767 n.38 (Pa. 2018). Therefore, we conclude that the speech and
debate privilege categorically cannot protect subject matters in engagement letters and invoices and
therefore may not be relied upon by the Senate to support its redactions.
19
For the foregoing reasons, we remand for in camera review by the LRB
Appeals Officer of only the subject matters contained in the engagement letters and
invoice captions identified by Requesters in the Reproduced Record from pages 364a
to 387a.13 Accordingly, we vacate the LRB Appeals Officer’s Final Determination and
remand with further instructions.
_______________________________
PATRICIA A. McCULLOUGH, Judge
13
The challenged redactions correspond with entries in the Senate’s Privilege Log that can be
found in the Reproduced Record at pages 349a, 350a, 355a, 357a, 359a, and 361a.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angela Couloumbis and :
Sam Janesch, :
Petitioners : No. 160 C.D. 2022
:
v. :
:
Senate of Pennsylvania, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2023, the Final Determination of the
Legislative Reference Bureau (LRB) Appeals Officer dated January 28, 2022 is
hereby VACATED. This matter is REMANDED to the LRB to hold an in camera
review to determine whether only the subject matters contained in the engagement
letters and invoice captions identified the Reproduced Record from pages 364a to
387a are exempt from disclosure under either the attorney-client or work product
privileges. The LRB need not consider whether any redactions are supported by the
speech and debate privilege.
The Senate shall produce to the LRB for in camera inspection
unredacted copies of the responsive documents challenged in this appeal. The LRB
shall issue a determination regarding the validity of the Senate’s redactions within
180 days of the date of this Order. Those documents which the LRB determines are
protected by those privileges shall not be unredacted by the Senate of Pennsylvania
to Angela Couloumbis and Sam Janesch. The Senate may appeal any directed
disclosure in accordance with the Right-to-Know Law, Act of February 14, 2008,
P.L. 6, 65 P.S. §§ 67.101-67.3104.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge