B. Dinmore v. PA DCED (Office of Open Records)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brianna Dinmore, :
:
Petitioner :
:
v. : No. 350 C.D. 2021
: Argued: December 13, 2021
Pennsylvania Department of :
Community and Economic :
Development (Office of Open :
Records), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 6, 2022
This matter is the latest chapter in an ongoing saga in which the Chester
Water Authority (Authority) is seeking to obtain records under the Right-to-Know
Law (RTKL)1 from the Pennsylvania Department of Community and Economic
Development (DCED) that relate to the City of Chester’s (City) efforts to sell
Authority assets to ease the City’s financial distress.2 In this case, Brianna Dinmore
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2
As the Pennsylvania Supreme Court has observed:
(Footnote continued on next page…)
(Requester), a paralegal working for a law firm representing the Authority, petitions
for review of the Final Determination of the Office of Open Records (OOR) granting
in part, and denying in part, her appeal of the DCED’s decision that partially denied
For almost twenty-five years, the [City] has been designated
as a distressed municipality under the [Municipalities Financial
Recovery] Act or “Act 47,” [Act of July 10, 1987, P.L. 246, as
amended, 53 P.S. §§11701.101-11701.7121,] which is administered
by the [DCED]. See [Section 121 of Act 47,] 53 P.S. §11701.121.
Per this enactment, among the [DCED’s] other responsibilities, the
agency is tasked with appointing coordinators, which may be DCED
employees or a private consultant, to formulate plans to address the
financial problems of distressed municipalities. See [Section 221(a),
(b) of Act 47,] 53 P.S. §11701.221(a), (b).
In 2016, [the] DCED entered into a professional services
contract with Econsult Solutions, Inc. [(Econsult)], a private
consulting firm, to act – in the capacity of an independent contractor
– as the recovery coordinator for the [City]. Econsult, in turn,
subcontracted with Fairmount Capital Advisors, Inc. [(Fairmount)]
and McNees, Wallace & Nurick, LLC [(McNees)] to serve as
subcontractors, respectively providing professional financial and
legal services.
Significantly, Act 47 recovery plans must address numerous
factors potentially useful in mitigating financial distress, including
“[a]n analysis of whether . . . privatization of existing municipal
services is appropriate and feasible[.]” [Section 241(8) of Act 47,]
53 P.S. §11701.241(8). Accordingly, Econsult was obliged to assess
the potential privatization of local municipal authorities – including
[the Authority] – and estimate the impact on the City’s financial
health. It was (and is) the Authority’s position, however, that a cash
infusion from the sale of the water authority is not in the best
interests of the public, but rather, would benefit only those with an
interest in an appearance of a successful financial turnaround for the
City in the short term. The Authority therefore sought to remain
abreast of the recovery planning.
Chester Water Authority v. Pennsylvania Department of Community and Economic Development,
249 A.3d 1106, 1108 (Pa. 2021) (footnotes omitted).
2
her request for records pursuant to the RTKL. We vacate and remand to OOR to
conduct an in camera review.
On April 14, 2020, Requester submitted a Standard Right-to-Know
Law Request Form (Request) to the DCED seeking copies of records,3 including
3
Specifically, Requester asked for the following:
1. Copies of all communications, including letters and emails,
between the [DCED] and any [City] Officials, including but not
limited to Thaddeus Kirkland, Ronald Starr, Nafis Nichols, Portia
West, William Morgan, Elizabeth Williams, William Jacobs, Edith
Blackwell, Latifah Griffin, Michael Galante, Nicole Cogdell,
Candace Thompson, Kenneth Schuster, and/or Edith Blackwell
from November 1, 2017, to the present.
2. Copies of all communications, including letters, reports,
memoranda, and emails, between [McNees] and any [City]
Officials, including but not limited to Thaddeus Kirkland, Ronald
Starr, Nafis Nichols, Portia West, William Morgan, Elizabeth
Williams, William Jacobs, Edith Blackwell, Latifah Griffin,
Michael Galante, Nicole Cogdell, Candace Thompson, Kenneth
Schuster, and/or Edith Blackwell from November 1, 2017, to the
present.
3. Copies of all communications, including letters, reports,
memoranda, and emails, between [Econsult] and/or [Fairmount] and
any [City] Officials, including but not limited to Thaddeus Kirkland,
Ronald Starr, Nafis Nichols, Portia West, William Morgan,
Elizabeth Williams, William Jacobs, Edith Blackwell, Latifah
Griffin, Michael Galante, Nicole Cogdell, Candace Thompson,
Kenneth Schuster, and/or Edith Blackwell from November 1, 2017,
to the present.
4. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Buchanan
Ingersoll and Rooney PC [(BI)] discussing the [City] and/or the
[Authority] from November 1, 2017, to the present.
(Footnote continued on next page…)
3
5. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Greenberg Traurig
LLP [(Greenberg)] discussing the [City] and/or the [Authority] from
November 1, 2017, to the present.
6. Copies of all communications, including letters, reports,
memoranda, and emails, directly or indirectly exchanged between
the DCED and Steven W. Smith, Esquire [(Smith)] discussing the
[City] and/or the [Authority] from November 1, 2017, to the present.
7. Copies of all contracts between the Commonwealth of
Pennsylvania [(Commonwealth)] or the DCED and [BI] from
November 1, 2017, to the present.
8. Copies of all itemized bills from [BI] for services related to
the [City] from November 1, 2017, to the present.
9. Copies of all contracts between the [Commonwealth] or the
DCED and [Greenberg] from November 1, 2017, to the present.
10. Copies of all itemized bills from [Greenberg] for services
related to the [City] from November 1, 2017, to the present.
11. Copies of all itemized bills from [Smith] for services related
to the [City] from November 1, 2017, to the present.
12. Copies of all communications, including letters and emails,
between the DCED and [McNees] (including but not limited to
David Unkovic, Esquire [(Unkovic)] or Adam Santucci, Esquire
[(Santucci)]) discussing the [City] and/or the [Authority] from
November 1, 2017, to the present.
13. Copies of all communications, including letters, reports,
memoranda, and emails, between Marita Kelly and/or Jamar Kelly
and [McNees] (including but not limited to [Unkovic] or [Santucci])
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
14. Copies of all communications, including letters, reports,
memoranda, and emails, between Kenneth Schuster and [McNees]
(Footnote continued on next page…)
4
(including but not limited to [Unkovic] or [Santucci]) discussing the
[City] and/or the [Authority] from November 1, 2017, to the present.
15. Copies of all communications, including letters, reports,
memoranda, and emails, between [Greenberg] and [McNees]
(including but not limited to [Unkovic] or [Santucci]) discussing the
[City] and/or the [Authority] from November 1, 2017, to the present.
16. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Brooke Queenan
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
17. Copies of all communications, including letters, reports,
memoranda, and emails, between Marita Kelly and/or Jamar Kelly
and Brooke Queenan discussing the [City] and/or the [Authority]
from November 1, 2017, to the present.
18. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Stephen Mullin
[(Mullin)] discussing the [City] and/or the [Authority] from
November 1, 2017, to the present.
19. Copies of all communications, including letters, reports,
memoranda, and emails, between Marita Kelly and/or Jamar Kelly
and Stephen Mullin discussing the [City] and/or the [Authority]
from November 1, 2017, to the present.
20. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Andrea Mannino
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
21. Copies of all communications, including letters, reports,
memoranda, and emails, between Marita Kelly and/or Jamar Kelly
and Andrea Mannino discussing the [City] and/or the [Authority]
from November 1, 2017, to the present.
22. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Daniel Connelly
(Footnote continued on next page…)
5
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
23. Copies of all communications, including letters, reports,
memoranda, and emails, between Marita Kelly and/or Jamar Kelly
and Daniel Connelly discussing the [City] and/or the [Authority]
from November 1, 2017, to the present.
24. A copy of any report or analysis related to any potential
monetization of the [Authority].
25. Copies of minutes from any meetings related to the [City]
since November 1, 2017.
2[6]. Copies of notes taken, memoranda prepared, or agendas in
connection with any meetings related to the [City] since November
1, 2017.
2[7]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, related to the [City’s] Act 47
Recovery Coordinator’s report [setting forth the financial condition
of the City] and the Recovery Coordinator’s recommendation since
November 1, 2017.
2[8]. Copies of all communications, including letters, reports,
memoranda, notes, and emails between the DCED, [Econsult],
[McNees], [BI] and/or [Fairmount] and the auditor general
regarding the [City] and or the Authority since November 1, 2017.
2[9]. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Aqua
Pennsylvania, Inc., its corporate affiliates, its parent company Aqua
America (which recently changed its name to Essential Utilities)
[(collectively, Aqua)], its agents, and/or its lobbyists discussing the
[City] and/or the [Authority] from November 1, 2017, to the present.
[30]. Copies of all communications, including letters, reports,
memoranda, and emails, between the DCED and Pennsylvania
American Water, its corporate affiliates, parent company, agents,
and/or lobbyists discussing the [City] and/or the [Authority] from
November 1, 2017, to the present.
(Footnote continued on next page…)
6
3[1]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, related to the [City’s] issuance or
attempted issuance of requests for proposals [(RFPs)] for the sale of
the [Authority] (including but not limited to RFPs dated June 12,
2019, and February 12, 2020) since November 1, 2017.
3[2]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, related to the March 5, 2020
meeting at Widener University between the [City] and [Aqua] since
November 1, 2019.
3[3]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and the
Chester Economic Development Authority discussing the
[Coronavirus Aid, Relief, and Economic Security (CARES)] Act[,
15 U.S.C. §§9001-9141] (or other federal legislation related to
COVID-19), Harrah’s Philadelphia Casino and Racetrack, the
[City] and/or the [Authority] from November 1, 2017, to the present.
3[4]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and the U.S.
Small Business Administration discussing the [City] and/or the
[Authority] from November 1, 2017, to the present.
3[5]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and PFM
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
3[6]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, related to the [2020 Declaration
of Fiscal Emergency] and/or potential appointment of a receiver for
the [City] since November 1, 2019.
3[7]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and any
member of the Pennsylvania House of Representatives or Senate
discussing the [City] and/or the [Authority] (including but not
limited to discussions related to the [2020 Declaration of Fiscal
Emergency] and/or potential appointment of a receiver for the
[City]) from November 1, 2017, to the present.
(Footnote continued on next page…)
7
documents exchanged between Econsult, Fairmount, McNees, and other outside
counsel, relating to the potential privatization and monetization of the Authority’s
assets under the City’s Act 47 recovery plan.4 See C.R. Exhibit 1 at 11-15.
3[8]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and Steven
Goldfield discussing the [City] and/or the [Authority] from
November 1, 2017, to the present.
3[9]. Copies of all communications, including letters, reports,
memoranda, agendas, and emails, between the DCED and the
Delaware County Council (including but not limited to Brian Zidek)
discussing the [City] and/or the [Authority] from November 1,
2017, to the present.
Certified Record (C.R.) Exhibit 1 at 11-15.
4
In this regard, this Court has noted:
[T]he Secretary of the [DCED] filed an application in our original
jurisdiction for the appointment of a receiver for the City in pursuant
to [Act 47]. See generally Davin v. City of Chester (Pa. Cmwlth.,
No. 336 M.D. 2020, filed June 22, 2020) [] (Davin I). In Davin I, a
judge from this Court noted that the City had been designated as a
distressed municipality under Act 47 since 1995; the City adopted a
recovery plan in 1996; and, due to difficult and changing economic
conditions, the City filed amendments to the recovery plan in 2006,
2013, and 2016. Id., slip op. at 1-2, 9. This Court further explained
that, as a result of the City’s continuing financial crisis, Governor
Tom Wolf issued a Declaration of Fiscal Emergency as to the City
on April 13, 2020 [(2020 Declaration of Fiscal Emergency)]. Id.Ultimately, this Court concluded that the “City [was] projected to be
insolvent within 180 days[] and [was] unable to ensure the continued
provision of vital and necessary services,” and, on June 22, 2020,
we granted [the D]CED’s petition, appointed a Receiver for the City,
and ordered the Receiver to file a recovery plan within 30 days of
our order. Id., slip op. at 6, 9. Then, on June 7, 2021, this Court
entered an order confirming the 2021 Revised Recovery Plan filed
by the Receiver, concluding that the plan, inter alia, “contains a
(Footnote continued on next page…)
8
Following an initial delay due to the COVID-19 pandemic, and an
agreed upon extension of time to produce the records, on August 5, 2020, and August
18, 2020, the DCED made an initial production of wholly or partially redacted
documents in response to the Request and sought rolling production of the remaining
records. On August 26, 2020, Requester filed an appeal of the DCED’s response,
asserting that the disclosed “records are heavily redacted, without explanation for
the redactions,” and that “[n]o redaction log was provided and there is no basis to
understand why such redactions were made.” C.R. Exhibit 1 at 9. On September 9,
2020, the parties agreed to stay the appeal pending the DCED’s final production of
documents in October 2020. See id. Exhibit 3.
On October 22, 2020, the DCED released its final response to the
Requester, partially denying the Request on the bases that certain records: (1)
contain personal identification information that is exempt from disclosure under
Section 708(b)(6)(i)(A) of the RTKL;5 (2) reflect the DCED’s internal, predecisional
deliberations (IPD) that are exempt from disclosure under Section 708(b)(10)(i)(A)
number of initiatives that set forth short- and long-term strategies to
address structural issues” and “proposes certain initiatives . . . to
address the fiscal emergency and continue to provide necessary and
vital services in the City.” Davin v. City of Chester (Pa. Cmwlth.,
No. 336 M.D. 2020, filed June 7, 2021) [] (Davin II), slip op. at 6-
7.
In re: Chester Water Authority Trust, 263 A.3d 689, 694 n.6 (Pa. Cmwlth. 2021).
5
65 P.S. §67.708(b)(6)(i)(A). Section 708(b)(6)(i)(A) exempts from disclosure “[a] record
containing all or part of 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.”
9
of the RTKL;6 (3) are the DCED’s working papers that are exempt from disclosure
under Section 708(b)(12) of the RTKL;7 and (4) are protected by the Pennsylvania
Constitutional right to privacy,8 the attorney-client privilege, and the work-product
doctrine9; and released records and information not subject to the foregoing
exemptions and/or exclusions. See C.R. Exhibit 4 at 5-7.
6
65 P.S. §67.708(b)(10)(i)(A). Section 708(b)(10)(i)(A) exempts from disclosure “[t]he
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, . . . contemplated or proposed policy or course of action
or any research, memos or other documents used in the predecisional deliberations.”
7
65 P.S. §67.708(b)(12). Section 708(b)(12) 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, including telephone message slips, routing slips and
other materials that do not have an official purpose.”
8
As the Pennsylvania Supreme Court has explained:
In [Pennsylvania State Education Association v. Department of
Community and Economic Development, 148 A.3d 142 (Pa. 2016)],
the Pennsylvania State Education Association [] sought an
injunction to prevent the release of the home addresses of public
school employees under the RTKL. After exploring the right to
privacy under the Pennsylvania Constitution, this Court concluded
that our organic charter protects a person’s address and other
personal information from disclosure by the government unless the
public interest in dissemination outweighs the privacy interest.
After weighing what we deemed to be the strong privacy interests in
protecting home addresses from disclosure against the negligible
public benefit in disclosure, the Court found the balancing of these
interests precluded disclosure of the employees’ home address.
Markham v. Wolf, 190 A.3d 1175, 1190 (Pa. 2018).
9
Section 102 of the RTKL defines “privilege,” in relevant part, as “[t]he attorney work-
product doctrine, the attorney-client privilege, . . . or other privilege recognized by a court
interpreting the laws of this Commonwealth.” 65 P.S. §67.102. In turn, Section 305(a)(2) states:
(Footnote continued on next page…)
10
In an October 29, 2020 email, Requester notified the OOR that she “will
continue the appeal of [the] DCED’s redactions on the remaining stated bases –
namely 65 P.S. §67.708(b)(10) ([IPDs]); attorney-client privilege and work-product
doctrine,” because “[the] DCED has not established that the redacted information
qualifies for the stated exemptions under Section 708 of the RTKL and/or the
claimed privileges and protections.” C.R. Exhibit 6 at 59. On November 13, 2020,
Requester submitted a Position Statement in support of her appeal in which she again
asserted the foregoing as the bases of her appeal before the OOR. See id. Exhibit 6
at 11-13.
On November 16, 2020, the DCED submitted a Position Statement
again asserting that it redacted emails pursuant to the attorney-client privilege and
the work-product doctrine, and that it redacted emails and portions of a
memorandum that reflect exempt IPDs. See C.R. Exhibit 8. In support, the DCED
also submitted the affidavits of Santucci, an attorney with McNees, see id. Exhibit 8
at 36-39; Mullin, the Principal and President of Econsult, see id. Exhibit 8 at 40-43;
“A record in the possession of a Commonwealth agency or local agency shall be presumed to be a
public record. The presumption shall not apply if: . . . the record is protected by a privilege[.]” 65
P.S. §67.305(a)(2). In this regard, Pa.R.Civ.P. 3003.3 states, in relevant part:
[A] party may obtain discovery of any matter discoverable under
[Pa.R.Civ.P.] 4003.1 even though prepared in anticipation of
litigation or trial by or for another party or by or for that other party’s
representative, including his or her attorney . . . . The discovery
shall not include 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.
Additionally, Section 5928 of the Judicial Code states: “In a 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.” 42 Pa. C.S. §5928.
11
and the Agency Attestation of Danica Hoppes (Hoppes), the Agency Open Records
Officer (ORO) for the DCED, see id. Exhibit 8 at 90-93.
By November 23, 2020 and November 24, 2020 emails, the OOR’s
Appeals Officer obtained Requester’s consent for an extension to file the Final
Determination and directed the DCED to submit updated affidavits and an
exemption log. See C.R. Exhibit 9 at 2-3. Accordingly, on January 4, 2021, the
DCED submitted a new Agency Attestation executed by ORO Hoppes, new
affidavits executed by Santucci and Mullin, and an Exemption Index. See id. Exhibit
10 at 7-11, 13-37, 39-43, and 45-48.
On January 11, 2021, Requester submitted a Supplemental Position
Statement asserting that: (1) the DCED’s Exemption Index “reflects an absolute
abuse of the [IPD] exception” based on the disclosure of the information to its
contractors, the information does not relate “to a particular decision,” and the
undisclosed information is purely factual; (2) the DCED “utilizes the attorney-client
privilege and/or work[-]product exemption where it is clear that any privilege has
been waived” because the records were produced by counsel for the City, “the
[DCED] does not claim[,] nor could it[,] any common interest with the City,” so that
“the material was never privileged in the first place” or that “any privilege that may
have otherwise attached had this information remained with the City and its counsel
has undoubtedly been waived” based on its disclosure to a third party, i.e., the
DCED; and (3) the DCED’s Exemption Index shows that it improperly failed to
disclose a memo of talking points prepared for its Secretary by his staff to prepare
him for a telephone call with the City’s mayor under Section 708(b)(12) because this
“personal use” exemption has no application to such information used in the
Secretary’s “occupational capacity.” C.R. Exhibit 12 at 3-6 (emphasis in original
12
and footnote omitted). “On February 5, 2021, in response to the OOR’s request for
a copy of the redacted records, the [DCED] submitted an updated log, supplemental
position statement and the redacted records.” C.R. Exhibit 15 at 8.
On March 1, 2021, the OOR’s Appeals Officer issued the Final
Determination. See C.R. Exhibit 15 at 2-19. With respect to the DCED’s invocation
of the attorney-client privilege and the work-product doctrine, the Appeals Officer
found that, based on ORO Hoppes’ November 13, 2020 Agency Attestation, 10 the
10
In relevant part, ORO Hoppes’ Agency Attestation states:
4. The administration of the Act 47 Program in the context of
the City requires decision making by the DCED staff, [Econsult],
[Fairmount], and [McNees] (“Act 47 Team”), the [City], and the
Governor’s office. Deliberations occurred amongst all these parties
leading up to making final decisions regarding various issues related
to the financial condition of the City and proposed adjustments to
the City’s Act 47 economic recovery plan (“Recovery Plan”),
including whether to declare a fiscal emergency under Act 47 and
whether to appoint a receiver.
5. [The] DCED redacted portions of emails and withheld
certain attachments from [Santucci], an Attorney with McNees, to
[the] DCED staff and the Act 47 Team which consist of legal
conclusions and mental impressions and deliberating proposed
courses of action related to various litigation and settlement
discussions and recommendations in connection with the City’s
Recovery Plan. [] Santucci is a member of the Pennsylvania [B]ar
and is counsel to [the] DCED under the Act 47 Contract. The
withheld communications were not shared beyond [the] DCED and
the Act 47 Team. These communications also constitute [IPDs] by
and between [the] DCED and its Act 47 contractors. [The] DCED
also withheld litigation work descriptions from McNees billing
records which would reveal case strategy. [] Santucci is a licensed
attorney with the law firm of [McNees]. Under the Act 47 contract,
McNees provides legal advice to [the] DCED and serves as legal
adviser of the Act 47 Team. The emails composed by [] Santucci
contain his analysis of various legal issues involving the City. The
(Footnote continued on next page…)
13
attachments relate to communications of fact amongst [] Santucci,
[the] DCED staff and the Act 47 Team necessary for [] Santucci to
provide the legal analysis. [] Santucci’s emails constitutes attorney-
product because [they were] created in connection with McNees’
duties under the Act 47 contract to provide the necessary legal
advice to [the] DCED and the Act 47 Team and because [their]
disclosure would reveal his mental impressions and conclusions
regarding litigation the [City] was actively involved in and how it
impacts the Act 47 Team’s goal of improving the financial condition
of the City. These withheld records are exempt pursuant to the
attorney client privilege and [the] DCED has established all
elements of that privilege.
***
7. [The] DCED withheld emails and attachments, and
memorandums prepared by in-house counsel (members of the
DCED’s Office of Chief Counsel which serves as in-house counsel
to [the] DCED for all legal matters including the administration of
the Act 47 Program) including Assistant Counsel Sean Campbell,
Chief Counsel Michael Adams, former Chief Counsel Chris
Houston, Deputy Chief Counsel Jill Busch, and Special Counsel
Rob Teplitz communicated amongst in-house counsel to [the]
DCED staff which is legal advice (legal conclusions and mental
impressions) regarding certain legal requirements of Act 47 which
also constitute [IPDs]. All DCED in-house counsel are members of
the Pennsylvania Bar and serve their DCED client. The redacted
communications were not shared with outside parties. These
records concern in-house counsels’ advice, created in connection
with their duty to provide legal services to [the] DCED, regarding
the legal requirements of Act 47 in connection with the City’s status
as a distressed municipality which would disclose the legal
conclusions and mental impressions of in-house counsel about these
legal requirements of Act 47. Imparting this advice required [the]
DCED staff to communicate facts to in-house counsel to base its
opinions on. Emails communicated amongst [the] DCED staff
originating from Assistant Counsel Justin Zimmerman, who also
serves as in-house counsel to [the] DCED, concerning the
fulfillment of the RTKL request at issue here were also withheld
because they concerned [the] DCED’s compliance with the RTKL
in responding to the Requester’s RTKL request.
(Footnote continued on next page…)
14
DCED “demonstrated that records identified as redacted pursuant to the attorney-
client privilege and/or the attorney work-product doctrine are protected by those
privileges” because “[t]hey are between the [DCED], [the] City, and various in-
house and outside counsel.” Id. at 14. The OOR’s Appeals Officer reached this
conclusion because Hoppes “affirm[ed] that the records include, among other things,
‘legal conclusions and mental impressions and deliberating proposed courses of
action related to various litigation and settlement discussions and recommendations
in connection with the City’s Recovery Plan,’” the records “contain [Santucci’s]
analysis of various legal issues involving the City,” and they contain “emails to and
from in-house counsel concern[ing] ‘in-house counsel’s advice, created in
connection with their duty to provide legal services to [the DCED] . . . [an]d would
***
10. [The] DCED withheld emails and attachments amongst the
City’s Solicitor, outside counsel for the City (attorneys of
[Greenberg]), consultants for the City from Transportation Funding
Consultants, officials of the City, [the] DCED staff, the Act 47
Team, and counsel [] Santucci deliberating and discussing various
agreements related to litigation, which also includes drafts of
settlement agreements. Ken Shuster [(Shuster)] is the City’s
solicitor and a licensed attorney. [Greenberg] is a law firm which
represents the City in various litigation. Some of these records were
created by these attorneys external to [the] DCED in connection
with litigation and settlement negotiations which reveal the mental
impressions and legal conclusions of these attorneys’ external to
[the] DCED. These records were created as a result of [] Shuster’s
representation of the City as well as [Greenberg’s]. Some of the
records are drafts of settlement agreements connected to resolving
litigation the City is involved in. Neither [] Shuster nor counsel to
[Greenberg] are adverse parties to [the] DCED or the Act 47 Team
and collaborate with [the] DCED and the Act 47 Team on certain
issues in assisting the City.
C.R. Exhibit 8 at 90-93.
15
disclose the legal conclusions and mental impressions of in-house counsel about
these legal requirements of Act 47.’” Id. However, because Hoppes attested that
some of the records included facts communicated “‘amongst []Santucci, [the] DCED
staff, and the Act 47 Team necessary for []Santucci to provide the legal analysis,’”
and facts communicated by the DCED staff “for in-house counsel to impart advice”
and “‘to in-house counsel to base its opinions on,’” the Appeals Officer determined
that, “to the extent that the records contain only factual information, the underlying
factual information is not subject to the privilege.” Id. at 15.
The Appeals Officer also affirmed the DCED’s application of Section
708(b)(10)(i)(A) to communications with outside counsel, the City, and the Act 47
Team as IPDs. See C.R. Exhibit 15 at 15-18. Finally, the Appeals Officer did not
reach Requester’s Section 708(b)(12) claim with respect to the Secretary’s call sheet
based on her determination that “the call sheet is exempt as reflecting [IPDs]” under
Section 708(b)(10)(i)(A). Id. Exhibit 15 at 18 n.3. Accordingly, the Appeals Officer
granted Requester’s appeal in part, and denied it in part, and directed the DCED to
provide the following records to Requester with the underlying facts unredacted: (1)
000014-000028A; (2) 000030A-000092A; (3) 000782A; (4) 000998A-001017A; (5)
001291A-001298A; and (6) 001307A-001319A. Id. Exhibit 15 at 18. Requester
then filed the instant petition for review in this Court from the Appeals Officer’s
Final Determination.11
However, on April 29, 2021, the Supreme Court issued its opinion in
Chester Water Authority in which it reversed this Court’s affirmance of OOR’s
11
This Court’s standard of review of an OOR Final Determination under the RTKL is de
novo, and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477
(Pa. 2013). “[W]e may substitute our own findings of fact for that of the agency or rely upon the
record created below.” Pennsylvania State Police v. Muller, 124 A.3d 761, 763 n.2 (Pa. Cmwlth.
2015).
16
application of IPDs exempted by Section 708(b)(10)(i)(A) to communications with
outside Act 47 consultants in the prior action for the related Act 47 records. 12 With
respect to the DCED’s claimed exemption for such IPDs, the Pennsylvania Supreme
Court stated:
[T]he statutory provision [in Section 708(b)(10)(i)(A)]
facially does not apply to communications with outside
consultants. See generally N[orth] Hills News Record v.
Town of McCandless, [722 A.2d 1037, 1040 (Pa. 1999)]
(explaining that, where the provisions of a statute are clear,
courts “are forbidden from diverging from the plain
meaning under the mere pretext of pursuing the spirit of
the enactment”). And the requirement of narrow
construction further solidifies the interpretation that
private consultants providing services as independent
contractors do not qualify as agencies, members,
employees, or officials who may engage in protected
internal communications.
***
12
In the opinion, the Court noted:
In the present briefing, the [DCED] intermittently refers to Econsult
and the [Fairmount] firms as “agents for [the] DCED.” The
governing professional services contract, however, explicitly
defines Econsult’s relationship with the D[CED] as being that of an
independent contractor and admonishes that “[n]othing contained
herein shall be so construed as to create an . . . agency . . .
relationship[.]” Since the [DCED] offers no accounting, on this
point, for the contract that it otherwise recognizes as controlling, we
reject the suggestion of an agency relationship from the outset.
Chester Water Authority, 249 A.3d at 1108 n.2 (citations omitted). Likewise in the instant matter,
Article IV of the Contract for Professional Services states: “Notwithstanding anything contained
herein to the contrary, the rights and duties hereby granted and assumed by [Econsult] are those of
an independent contractor only. Nothing contained herein shall be so construed as to create an . . .
agency . . . relationship between the [DCED] and [Econsult].” C.R. Exhibit 8 at 47.
17
Significantly, the Legislature knows how to protect
agency communications with outsiders; indeed, it has
done so in other provisions of the [RTKL]. See, e.g.,
[Section 708(b)(26),] 65 P.S. §67.708(b)(26) (excepting
from disclosure, inter alia, pre-acceptance procurement
proposals and bidder financial information). And it would
have been a straightforward matter, in Section
708(b)(10)(i)(A), to have listed outside consultants along
with “members, employees or officials,” but the fact of the
matter is that the General Assembly did not do so. In light
of the strong, competing policy interests involved, we rest
our decision upon the statutory language and leave
consideration of any adjustments to the open-records
regime to the policy-making branch. Accord Rojas [v.
Federal Aviation Administration, 927 F.3d 1046, 1058
(9th Cir. 2019), aff’d in part and vacated and remanded in
part, 989 F.3d 666 (9th Cir. 2021)] (explaining that, if
adherence to the statutory scheme as written proves
unworkable, “the proper remedy lies with Congress, not
the courts”).
We hold that Section 708(b)(10)(i)(A) does not
serve to insulate communications exchanged between a
Commonwealth agency and a private consultant from the
[RTKL’s] general requirement for openness.
Chester Water Authority, 249 A.3d at 1113-14.
Thus, at the time that the Final Determination was issued in this matter,
OOR did not have the benefit of the Supreme Court’s opinion in Chester Water
Authority, the prior case in which the Authority sought information under the RTKL
regarding the City’s plans to monetize the Authority’s assets as part of its Act 47
Recovery Plan. As conceded by Requester, in July 2021, the DCED complied with
the Supreme Court’s opinion in Chester Water Authority by subsequently
“produc[ing] to Requester the public information it (a) shared with its consultants
and their contractors (Econsult, McNees and [Fairmount]) and (b) withheld solely
on the basis of the IPD Ex[emption], mooting the issue on appeal as to this narrow
18
subset of records only.” Brief of Petitioner at 20. Indeed, Requester further
concedes:
As detailed above in the statement of the case, since
[Requester] filed her petition with this Court alleging error
in the [DCED’s] withholding of material shared with its
outside consultants and/or contractors pursuant to the IPD
Ex[emption], the [DCED] has complied with the Supreme
Court’s decision in [Chester Water Authority] and
produced the material that it had shared with McNees,
Econsult and/or [Fairmount] and originally withheld
solely on this basis.
Id. at 38 n.10.
As a result, OOR asserts that it was not required to address any records
that were withheld on another basis separate and apart from the IPD Exemption
except for those bases asserted by Requester in her appeal. See, e.g., Walbert v.
North Coventry Township Police Department (O.O.R. Final Determination, No. AP
2021-1074, mailed August 19, 2021), slip op. at 8 n.3 (“Because the report is exempt
under Section 708(b)(17) of the RTKL, [65 P.S. §67.708(b)(17),] the OOR need not
address the [Police] Department’s other grounds for denial.”); Stein v. Pennsylvania
Department of Corrections (O.O.R. Final Determination, No. AP 2009-0414, issued
June 17, 2009), slip op. at 6 (“The OOR notes that the [Department of Corrections]
argued that the first names of [Corrections Officers] would be protected under other
grounds. As the records were properly withheld under [Section 708(b)(1)(ii),] 65
P.S. §67.708(b)(1)(ii), the OOR need not address them here.”). As indicated above,
the DCED provided Requester with the Exemption Index listing the separate bases
independent from the IPD exemption of Section 708(b)(10)(i)(A) upon which the
individual records were withheld. See C.R. Exhibit 10 at 13-37.
19
However, the Supreme Court did not address the attorney-client
privilege, or the work-product doctrine claims in Chester Water Authority, deeming
those claims to be moot. See id. at 1114-15. In this appeal, Requester asserts that
the attorney-client privilege and the work-product doctrine do not shield the
requested records from disclosure13 because: (1) the DCED did not establish the
13
As this Court has observed:
We recently assessed OOR’s application of the attorney-
client privilege in another case involving [the r]equester[.] We held
that to establish the attorney-client privilege, the agency asserting it
must demonstrate that:
(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.
(4) The privilege has been claimed and is not waived by the
client.
The work-product doctrine, while closely related to the
attorney-client privilege, provides broader protection. Confidential
information flows from the client to the attorney, and vice versa, in
the attorney-client relationship. The attorney-client privilege
protects such confidential communications. By contrast, the work-
product privilege only applies to “the mental impressions, theories,
notes, strategies, research and the like created by an attorney in the
course of his or her professional duties. . . .” Neither privilege
protects mere facts.
(Footnote continued on next page…)
20
requisite attorney-client relationship with the City’s records or the McNees records;
(2) the DCED waived any privilege by sharing the information with third parties
such as the City, outside counsel, and the other members of the Act 47 Team; (3) the
DCED continues to improperly exploit the IPD Exemption of Section
708(b)(10)(i)(A) to any and all information relating to the City’s attempts to
monetize the Authority’s assets to alleviate its debt issues; and (4) the OOR erred in
failing to address the DCED’s application of the Section 708(b)(12) exemption for
records solely used by an employee for personal use to records that were, in fact,
used for work-related purposes.
At oral argument in this case, both parties acknowledged that in camera
review of the records in this matter was requested but denied by the OOR. As this
Court has explained:
It is well established that OOR and its appeals
officers have authority to order and undertake in camera
review of documents that have been withheld or redacted
where, in the appeals officers’ judgment, in camera review
is necessary to develop an adequate record to rule on the
agency’s claims of privilege or exemption.
UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania
***
It is well[]established that once attorney-client
communications are disclosed to a third party, the attorney-client
privilege is waived. Likewise, the work-product doctrine, as a
“qualified privilege,” may be waived by disclosure to third parties.
As we [have] held[,] a requester challenging the attorney privileges
based on waiver by disclosure to third parties bears the burden of
proving that waiver. We confirmed the attorney privileges apply in
the RTKL context as they do in other contexts, by placing this
burden on the requester.
Pennsylvania Department of Education v. Bagwell, 114 A.3d 1113, 1123-24 (Pa. Cmwlth. 2015)
(citations omitted).
21
Department of Human Services, 187 A.3d 1046, 1060 (Pa.
Cmwlth. 2018); Highmark Inc. v. Voltz, 163 A.3d 485,
490-91 (Pa. Cmwlth. 2017)[;] Office of the District
Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1124
n.5 (Pa. Cmwlth. 2017); Township of Worcester v. Office
of Open Records, 129 A.3d 44, 59-60 (Pa. Cmwlth. 2016);
Office of Open Records v. Center Township, 95 A.3d 354,
369-71 (Pa. Cmwlth. 2014)[.]
An appeals officer has discretion in developing the
record to allow meaningful appellate review. To
develop the record, an appeals officer may
undertake in camera review or request submissions
as to material facts.
Highmark, 163 A.3d at 490-91 (citations omitted).
County of Berks v. Pennsylvania Office of Open Records, 204 A.3d 534, 544 (Pa.
Cmwlth. 2019). See also McKelvey v. Pennsylvania Department of Health, 255
A.3d 385, 413 (Pa. 2021) (“[I]t was incumbent upon the OOR, and, ultimately, the
Commonwealth Court, to consider the alleged exemptions applicable to such
financial information, to review the information at issue – in camera if beneficial –
and to fully consider the reasons proffered to support exemption from disclosure.”).
Because we are unable to conduct meaningful appellate review of the foregoing
allegations of error based on the present state of the record in this matter, the case is
remanded to the OOR to conduct an in camera review of the requested records and
to address all of the claimed exemptions that are applicable to those records.
Accordingly, the OOR’s Final Determination is vacated, and the matter
is remanded to the OOR to conduct an in camera review in accordance with the
foregoing memorandum opinion.
MICHAEL H. WOJCIK, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brianna Dinmore, :
:
Petitioner :
:
v. : No. 350 C.D. 2021
:
Pennsylvania Department of :
Community and Economic :
Development (Office of Open :
Records), :
:
Respondent :
ORDER
AND NOW, this 6th day of May, 2022, the Final Determination of the
Office of Open Records dated March 1, 2021, is VACATED, and the above-
captioned matter is REMANDED to the Office of Open Records to conduct an in
camera review of the requested records in accordance with the attached
memorandum opinion and issue a new determination from which either party may
file a petition for review.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge