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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sam Janesch and Angela :
Couloumbis, :
Petitioners : No. 142 C.D. 2022
:
v. : Argued: December 12, 2022
:
Pennsylvania House of :
Representatives, :
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
In this Right-to-Know Law (RTKL)1 appeal, Petitioners Sam Janesch and
Angela Couloumbis (Requesters) petition for review of the January 19, 2022 final
determination of Anthony C. Aliano, Esq., the Appeals Officer of Respondent
Pennsylvania House of Representatives (House) (House AO). The House AO’s final
determination affirmed the House’s partial denial of Requesters’ RTKL request
seeking disclosure of documents related to the retention of outside legal counsel by the
House, its members, and its employees. The House produced responsive documents
but made redactions that Requesters challenged before the House AO. The House AO
affirmed, and Requesters now petition this Court for review. Upon review, we affirm.2
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
This is one of two related appeals filed by Requesters regarding RTKL requests they
submitted separately to each of the two houses of the Pennsylvania General Assembly. The other
(Footnote continued on next page…)
I. FACTS AND PROCEDURAL HISTORY
The material facts are not disputed. On October 15, 2021, Requesters
submitted an e-mail RTKL request to the House seeking documents in the following
four categories: (1) invoices, bills, and other financial documents reflecting payment
for legal work performed by outside law firms or individual lawyers for the House or
its employees; (2) engagement or retainer letters regarding this legal work; (3) expense
reports showing payments to law firms or individual lawyers for this legal work; and
(4) any other documents that identify the House’s legal engagements with outside law
firms or lawyers (Request). The Request sought documents for the period between
January 1, 2021, and October 15, 2021. (Reproduced Record (R.R.) 002a.) On
October 22, 2021, pursuant to subsections 902(a)(1), (4), and 73 of the RTKL, the
House invoked a 30-day extension to respond to the Request. (R.R. 004a.)
On November 22, 2021, Brooke I. Wheeler, the House’s Chief Clerk and
Open Records Officer (ORO), granted the Request, in part, and produced in electronic
format over 600 pages of responsive documents. The ORO denied the Request, in part,
by redacting4 from the production personal financial information and information
allegedly protected by the attorney-client and work product privileges. (R.R. 004a-
005a.) The production included engagement letters, invoices, and expense reports from
appeal is Couloumbis v. Senate of Pennsylvania (Pa. Cmwlth., No. 160 C.D. 2022, filed July 18,
2023). The two cases have not been consolidated, but they were argued seriately and are being
decided together.
3
65 P.S. § 67.902(a)(1), (4), (7). These subsections permit a 30-day extension of the response
deadline where redaction or legal review is required or where the extent or nature of the request
precludes a response within the required period. See also Section 902(b)(2) of the RTKL, 65 P.S. §
67.902(b)(2).
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
the House Chief Clerk’s office, the House Republican Caucus, and the House
Democratic Caucus.5 The House did not provide a privilege log or index of its
redactions, but instead offered the following rationale:
All privileged redactions were performed in accordance with
the guidance provided by the Commonwealth Court of
Pennsylvania in [Levy v. Senate of Pennsylvania], 94 A.3d
436 (Pa. Cmwlth. 2014) [Levy III]. General descriptions of
work and references to publicly-available information have
been left unredacted. However, information which would
reveal attorney mental impressions, theories, notes, strategies,
research and the like created in the course of the attorney’s
duty has been redacted, as well as descriptions of legal
services that address the [House’s] motive for seeking
counsel, legal advice, strategy, or other confidential
communications. Likewise, personal financial information
had been redacted from sections of the records relating to
billing and/or payment in accordance with section[ ]
708(b)(6) and [ ](c) of the [RTKL, 65 P.S. § 67.708(b)(6),
(c)].
(R.R. 005a.) (internal quotations and footnotes omitted).6
On December 14, 2021, Requesters appealed the ORO’s decision to the
House AO. (R.R. 008a.) In their appeal, Requesters challenged only those redactions
made pursuant to the attorney-client and work product privileges, arguing that the
redactions of subject matters from engagement letters and invoices was not justified
5
The House produced most of the responsive documents on November 22, 2021. A
supplemental production containing 13 pages of additional documents was sent by e-mail on
December 7, 2021. (Petition for Review (PFR), Ex. A, p. 2 n.5; R.R. 245a.)
6
Requesters did not include the House’s document production in the Reproduced Record.
They included only samples of redacted documents that were appended to their appeal to the House
AO. The Court reviewed the remainder of the production contained in the Original Record (O.R.)
received from the House.
3
under either of those privileges and contravened companion provisions of the Sunshine
Act.7 Requesters also argued that the House’s failure to provide an index or privilege
log made it impossible to determine whether either of the asserted privileges
legitimately was invoked for any of the redactions. Requesters pointed out that the
nature and scope of the redactions were not consistent with prior productions made by
the House in response to RTKL requests for similar documents from 2019 and 2020.8
Id. Requesters thus requested that the House AO direct that all of the redactions be
removed or, in the alternative, that the House AO conduct in camera review and a
hearing to determine the applicability of the asserted privileges to each of the House’s
redactions.
Before the House AO, the House relied on this Court’s decisions in Levy
v. Senate of Pennsylvania, 34 A.3d 243 (Pa. Cmwlth. 2011) (Levy I), reversed, in part,
65 A.3d 361 (Pa. 2013) (Levy II) and Levy III, and the Pennsylvania Supreme Court’s
decision in Levy II, to argue that its redactions were supported by both the attorney-
client and work product privileges. In support, the House submitted the affidavits of
(1) Daniel W. Coleman, “CORE”9 Legal Counsel for the House, on behalf of the
House’s Chief Clerk/ORO (Coleman Affidavit) (R.R. 249a-54a); (2) Charlene A.
Bashore, the Open Records Officer of the House Republican Caucus (Bashore
7
65 Pa. C.S. §§ 701-716.
8
Requesters attached to their appeal a sample redacted engagement letter and approximately
60 additional pages of documents, mostly invoices, produced by the House. They also attached
approximately 140 pages of redacted documents produced in response to Requesters’ prior RTKL
request for the same categories of documents from prior years. The House made similar redactions
in that production, and Requesters challenged the redactions before the House AO. In a decision
nearly identical to its decision in this matter, the House AO affirmed. See R.R. 271a-84a. Requesters
did not appeal to this Court.
9
“CORE” is an alternative term for the House’s Chief Clerk.
4
Affidavit) (R.R. 256a-61a); and (3) Matthew S. Salkowski, Senior Legal Counsel to
the House Democratic Caucus (Salkowski Affidavit) (R.R. 264a-68a) (together,
Affidavits).10
The Affidavits each include, among other items, the following:
1) The affiants’ names, positions, and relevant job
responsibilities;
2) The affiants’ 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) Each affiant’s familiarity with the Levy decisions;
6) The specific categories, subjects, and topics of
information that were redacted from the responsive
documents, including in the narrative entries of
invoices;
7) The specific rationale for why narrative entries were
redacted under both the attorney-client and work
product privileges; and
8) The reasons why in camera review and the production
of a privilege log would be unnecessary and unduly
burdensome.
(R.R. 249a-69a.) The House contended that both in camera review and the production
of a privilege log were unnecessary and overly burdensome because the Affidavits
sufficiently explained the bases for all of the redactions. Regarding the Sunshine Act,
10
Although the House AO’s decision references four affidavits, the Salkowski Affidavit is
mentioned twice. We assume this was a typographical error. (PFR, Ex. A., at 7.)
5
the House argued that it was inapplicable to a RTKL request and that, in any event,
nothing in the redactions offended the Sunshine Act in principle. The House
acknowledged a degree of variation between the redactions made in this matter and
those made in prior productions responding to very similar RTKL requests.
Nevertheless, the House argued that some variation in redactions is expected because
of slightly different interpretations of the Levy decisions by individual redactors.
By decision issued on January 19, 2022, the House AO affirmed the
ORO’s partial denial of the Request. (PFR, Ex. A.) The House AO rejected each of
Requesters’ challenges to the redactions, concluding that (1) the Affidavits provided
sufficient and detailed information to justify the redactions, (2) in camera review and
the production of a privilege log were unnecessary and would be unduly burdensome
given the sufficiency of the Affidavits, and (3) the redactions in prior RTKL
productions were never challenged and therefore are immaterial to this matter.11 Id. at
10-14. Requesters then petitioned for review in this Court.
II. ISSUES PRESENTED
Requesters present two issues in their PFR: (1) whether the House
produced sufficient evidence establishing that the attorney-client and work product
privileges justify its redactions, and (2) whether the RTKL requires a legislative agency
like the House to redact subject matters from attorney engagement letters and invoices.
The House contends, as it did before the House AO, that its redactions are justified
under both the attorney-client and work product privileges and adequately are
supported by the Affidavits submitted to the House AO. The House also contends that
it properly redacted the subject matters from a few of the produced documents to
preserve the attorney-client privilege.
11
The AO did not address Requesters’ argument under the Sunshine Act.
6
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 or work product
privileges, our scope of review is plenary and our standard of review is de novo. Levy
I, 34 A.3d at 246. In reviewing matters under section 1301 of the RTKL, 65 P.S. §
67.1301 (pertaining to Commonwealth, legislative,12 and judicial agencies), “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
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. §
67.701(a). Similarly, legislative records13 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, or 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. Pertinent here, “privilege”
is defined in the RTKL to include the attorney-client and work product privileges. Id.
Although an agency has some discretion under the RTKL to release otherwise exempt
12
The House is a “legislative agency.” Section 102 of the RTKL, 65 P.S. § 67.102.
13
Legislative records include financial records. 65 P.S. § 67.102.
7
records, it lacks discretion to release a privileged record. Section 506(c)(2) of the
RTKL, 65 P.S. § 67.506(c)(2).
Where an agency asserts a privilege, the agency bears the burden of proof
to demonstrate by sufficient facts that the privilege applies. Levy I, 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 708 (a)(1) of the RTKL, 65 P.S. §
67.708(a)(1) (“The burden of proving that a record of a Commonwealth agency or local
agency is exempt from public access shall be on the Commonwealth agency or local
agency receiving a request by a preponderance of the evidence.”); 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”). A preponderance of the evidence is such
evidence as would lead a factfinder to find that the existence of a contested fact is more
probable than the nonexistence of the contested fact. Pennsylvania Office of Attorney
General v. Bumsted, 134 A.3d 1204, 1210 n.12 (Pa. Cmwlth. 2016). Further, given
the overarching purposes of the RTKL to provide access to government information
and increase official accountability, “in determining whether a record is exempt from
disclosure under the RTKL, exemptions from disclosure must be narrowly construed
so as to not frustrate the remedial purpose of the RTKL.” Office of the District Attorney
of Philadelphia v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth. 2017) (citation omitted)
(Bagwell 2017).
2. The Levy Decisions
Because the parties rely heavily on the several Levy decisions of this Court
and the Pennsylvania Supreme Court, we first review them generally. All three
decisions involve the same set of facts and the same two RTKL requests. In Levy I, we
8
considered the appeal of Marc Levy, an Associated Press Member, from the decision
of the Pennsylvania Senate’s (Senate) 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 identified senator
and any other current or former members of the Senate Democratic Caucus. The Senate
produced 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 (Special Master). After receiving the
Special Master’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
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.
9
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 grounds for withholding records that were
not asserted in its 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 Court reversed, however, our determination that the Senate had waived its
alternative grounds for non-disclosure. It therefore remanded the case to this Court for
our consideration of whether the attorney work product privilege and grand jury
secrecy and criminal investigation exemptions applied to justify the Senate’s
redactions. Id. at 383. On remand, in pertinent part, we concluded that the attorney
work product privilege did not protect general descriptions of legal services from
disclosure. Levy III, 94 A.3d at 444. Specific descriptions of legal services, however,
as we concluded in Levy I and the Supreme Court affirmed in Levy II, remained
protected by the attorney-client privilege. Id. at 444 n.9; Levy II, 65 A.3d at 373.
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 purposes of criminal and civil law . . . .[14] We
14
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
(Footnote continued on next page…)
10
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 (internal citations and quotations omitted). See also Levy
I, 34 A.3d at 248. 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.
the client be compelled to disclose the same, unless in either case this privilege is waived upon the
trial by the client.”).
11
Levy II, 65 A.3d at 373 (internal citation omitted).15 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, 114 A.3d 1113, 1123-24 (Pa.
Cmwlth. 2015) (citing, in part, Nationwide Mutual Insurance Company v. Fleming,
15
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
924 A.2d 1259 (Pa. Super. 2007), aff’d by an equally divided court, 992 A.2d 65(2010)).
4. Work Product Privilege
This Court, in Levy III, described the attorney work product privilege16
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 [privilege] 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
[privilege] protects any material prepared by the attorney in
anticipation of litigation, regardless of whether it is
confidential. The underlying purpose of the work product
[privilege] 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 Heavens v. Pennsylvania Department of Environmental Protection, 65 A.3d 1069,
1077 (Pa. Cmwlth. 2013). In considering the distinction between unprotected general
16
This privilege often is referred to as the attorney work product “doctrine.” We have referred
to it herein as a “privilege” to be consistent with many of the references in the briefing and record.
13
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, 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 [privilege].
Levy III, 94 A.3d at 444 (internal citations and footnote omitted).
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 House has made redactions
of client identities or general descriptions of legal services in direct violation of the
Levy decisions. Rather, Requesters contend that the House has not adequately
supported its redactions with evidence that either or both privileges apply to each
redaction and that the RTKL does not categorically preclude the disclosure of the
subject matters identified in outside attorney engagement letters and invoices. We
address Requesters’ issues in reverse order for convenience of analysis.
1. Subject Matters
Requesters argue that the House and the House AO interpreted the Levy
decisions too broadly to protect general descriptions of the subject matters of legal
14
work performed for the House by outside law firms. 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 argue that “[t]he public
needs to know the general subject matter of the House’s legal engagements” and that
public scrutiny will be hamstrung if the House conceals “even the most basic, general
information about its reasons for engaging outside attorneys.” (Petitioners’ Br. at 26.)
First, our review of the House’s document production reveals that the vast
majority of the subject matters contained in the House’s invoices, comptroller expense
reports, and engagement letters is unredacted.17 For example, of the engagement letters
produced, only one redacts the subject matter of the representation. (R.R. 14a.) All of
the other engagement letters and hundreds of pages of invoices include the subject
matters of the House’s various retentions of outside legal counsel. Thus, and
preliminarily, it is not altogether clear that Requesters have been deprived of “basic,
general information” about the House’s legal engagements. (Petitioners’ Br. at 26.)
Requesters have not identified specific redacted subject matters that they challenge,
and we will not guess as to which ones Requesters argue are problematic.
Second, we read the Levy decisions to be quite clear about what may and
may not be redacted from attorney invoices and engagement letters. General
descriptions of legal services, e.g., that a lawyer made a telephone call, sent an e-mail,
drafted a pleading, or sat in conference with other lawyers or the client are not
17
As noted above, Requesters neither included in the Reproduced Record nor referenced or
analyzed in their brief the bulk of the House’s document production. Accordingly, so that we could
conduct meaningful appellate review, this Court independently retrieved the Certified Record and
reviewed and catalogued the entirety of the House’s production.
15
protected. 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 that the Levy decisions identify. Their application and the propriety of any
redactions made 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 House redacted a small number of subject matters from a single
engagement letter and attorney invoices. They otherwise did not redact subject matters,
and it therefore cannot be argued that the House is suggesting a broad, categorical rule
that would protect all subject matters from disclosure. Of the few subject matters that
were redacted, the House’s Affidavits make clear that the redactions were made
because those specific subject matters would reveal client motives for seeking counsel
or some other category of protected information. Although we address the sufficiency
of the Affidavits below, we conclude here that the House does not assert, nor do the
Levy decisions provide for, a prophylactic rule either protecting or requiring the
production of the subject matters of legal representation, whether contained in the
subject line of an engagement letter, the body of an invoice, or elsewhere.18
Requesters’ suggestions to the contrary are without merit.
18
Requesters’ lengthy argument under the Sunshine Act therefore is inapposite. Although the
Sunshine Act and RTKL are born of common objectives, the specific Sunshine Act provision relied
upon by Requesters, namely, 65 Pa. C.S. § 708(b), has no application here. Under the Sunshine Act,
(Footnote continued on next page…)
16
2. The Affidavits
We stated in Bagwell 2017:
A local agency may provide affidavits to detail the search its
RTKL officer conducted for documents responsive to a
RTKL request and the justification, if applicable, for any
exemption from public disclosure or privilege relied upon for
denying a requester access to responsive documents.
Relevant and credible testimonial affidavits may provide
sufficient evidence in support of a claimed exemption;
however, conclusory affidavits, standing alone, will not
satisfy the burden of proof an agency must sustain to show
that a requester may be denied access to records under the
RTKL.
Bagwell 2017, 155 A.3d 1119 (citations omitted); see also Heavens, 65 A.3d at 1073.
In Pennsylvania Department of Education v. Bagwell, 131 A.3d 638 (Pa. Cmwlth.
2016) (Bagwell 2016), we considered the validity and sufficiency of an affidavit
submitted by the Department of Education (Department) to establish the applicability
of the attorney-client and work product privileges to documents requested under the
RTKL regarding the Gerald Sandusky investigation. 131 A.3d at 644. The Department
did not review or produce any responsive documents, but, instead, submitted the
affidavit of its former secretary, Ronald Tomalis (Tomalis Affidavit), in support of its
an agency generally may enter executive session for various purposes, including to “consult with its
attorney or other professional advisor regarding information or strategy in connection with litigation
or with issues on which identifiable complaints are expected to be filed.” 65 Pa. C.S. § 708(a)(4).
Section 708(b) requires an agency to announce the reason for its entry into executive session. 65 Pa.
C.S. § 708(b); Reading Eagle Co. v. Council of the City of Reading, 627 A.2d 305, 306-07 (Pa.
Cmwlth. 1993) (when entering executive session to discuss litigation, the agency must announce the
parties, docket number, and court for existing lawsuits and the nature of the complaint for impending
lawsuits prior to entering executive session; litigation strategy, settlement discussions, or potential
claims need not be disclosed). The Sunshine Act, therefore, like the RTKL, protects privileged
information and requires publication of basic information about an agency’s legal involvements. Our
decisions in Levy make similar distinctions that were applied by the House in making its redactions.
Thus, even assuming that the Sunshine Act applied in this matter—and it does not—its provisions do
not require a result contrary to that reached above.
17
privilege claims. Id. at 657. The Tomalis Affidavit generally tracked the elements of
the privileges and stated that the responsive documents contained privileged
communications and the mental impressions and opinions of attorneys in the Office of
General Counsel. Id. at 657-58. We concluded that the Tomalis Affidavit was
“conclusory and vague” and did not sufficiently establish that the unreviewed and
unproduced documents were protected by the attorney-client or work product
privileges. Id. at 658. Specifically, we concluded:
Notably, the Department did not submit a privilege log to [the
Office of Open Records (OOR)] or to this Court identifying
the relevant documents. As a result, neither OOR nor this
Court had sufficient information to evaluate the exemptions.
This may be because the Department had not yet reviewed the
records for applicability of exemptions and redaction as
appropriate. We find it perplexing that the Department claims
unspecified records are privileged while simultaneously
admitting it did not review the records. The Tomalis Affidavit
is conclusory and vague. It does not describe the records with
any particularity as to how the privilege supports non-
disclosure or redaction of the 644 pages of allegedly
responsive records. For these reasons, we conclude the
Department failed to establish the responsive records fall
within the attorney-client privilege or the work product
[privilege].
Bagwell 2016, 131 A.3d at 658 (citations omitted).
Here, the Affidavits are not analogous to those at issue in Bagwell 2016.
All three of the House’s affiants included specific factual material detailing their search
for responsive documents, their knowledge of the Levy decisions, their (days-long)
personal review of responsive documents, and the specific categories of items they
redacted. This is not a situation where, as in Bagwell 2016, the responding agency
guessed as to the responsive documents’ contents and submitted an affidavit that
merely tracked the elements of the relied-upon privileges. Although the House did not
18
submit a privilege log, no document was withheld in its entirety on the basis of
privilege. The documents all have been produced and contain more than sufficient
unredacted information to give ample context clues identifying the nature of the
redacted information and the ground(s) upon which the redactions were made. Thus,
we conclude that the Affidavits, coupled with the responsive documents themselves,
adequately establish the applicability of the attorney-client and work product privileges
to the House’s redactions. See Heavens, 65 A.3d at 1076-77.
For the same reasons, we conclude that in camera review and the
production of a privilege log are unnecessary. Although, as in Levy I, in camera review
in certain circumstances is both available and helpful to this Court in deciding RTKL
matters, we find that the documents produced by the House, together with the
Affidavits, provide enough proof to establish the asserted privileges. The general
purpose of in camera review and the production of a privilege log is to provide the
requester and/or the Court with enough information to determine whether withholding
or redacting was appropriate. We have the bulk of that information available to us in
this case. Again, no single document was withheld in its entirety, and Requesters have
not identified a specific subject matter that they challenge. Moreover, there is very
little additional information to discover from the content of the redacted invoices.
Accordingly, we decline Requesters’ requests that we vacate the House AO’s decision
and remand for the production of a privilege log and in camera review.19
19
In the companion Senate case, unlike here, the Senate categorically redacted all subject
matters from its document production and produced affidavits and a privilege log to support its
redactions. Although the supporting affidavits suggested that the Senate did not make blanket
redactions of subject matters, the documents produced indicated to the contrary. We accordingly
concluded that remand for in camera review of certain redactions specifically challenged by
Requesters was necessary to determine if they were supported by any of the privileges asserted by the
Senate. See Couloumbis v. Senate of Pennsylvania (Pa. Cmwlth., No. 160 C.D. 2022, filed July 18,
2023).
19
IV. CONCLUSION
For the foregoing reasons, we conclude that the House has established that
the attorney-client and work product privileges support its redactions and partial denial
of the Request. We accordingly affirm the final determination of the House AO.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sam Janesch and Angela :
Couloumbis, :
Petitioners : No. 142 C.D. 2022
:
v. :
:
Pennsylvania House of :
Representatives, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2023, the January 19, 2022 final
determination of the Appeals Officer of the Pennsylvania House of Representatives
hereby is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge