County of Berks v. PA OOR and ALDEA - The People's Justice Center

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Berks, :
:
Petitioner :
:
v. : No. 170 M.D. 2018
: Argued: September 14, 2018
Pennsylvania Office of Open :
Records and ALDEA - The :
People’s Justice Center, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge1
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 3, 2019
Before this Court are the preliminary objections filed by the Office of
Open Records (OOR) and ALDEA - The People’s Justice Center (ALDEA) to the
petition for review filed by the County of Berks (County) asserting two claims in
this Court’s original jurisdiction and a third claim seeking that this Court exercise
its ancillary jurisdiction pursuant to Section 761(c) of the Judicial Code, 42 Pa. C.S.
§ 761(c), to conduct an appellate review of the County’s appeal from an OOR Final
Determination ruling on a request by ALDEA for records of the County. For the
1
This decision was reached before Senior Judge Colins’ service with the Court ended on December
31, 2018.
reasons that follow, we grant OOR’s first and second preliminary objections and
ALDEA’s first preliminary objection, dismiss Counts I and II of the petition for
review and transfer Count III to the Court of Common Pleas of Berks County.
On July 27, 2017, ALDEA filed a request with the County pursuant to
the Right-to-Know Law2 (RTKL) identifying six categories of records that it sought
from the County related to the Berks County Residential Center (BCRC), an
immigrant family detention facility. (OOR Certified Record (C.R.) Item 1.) In Items
1 to 4 of the request, ALDEA sought correspondence concerning complaints by or
related to four private attorneys and one paralegal that related to conditions at BCRC.
(Id.) In addition, Item 5 of the request sought video recordings of the BCRC
visitation area on the evening of May 23, 2017, while Item 6 of the request sought
any correspondence between BCRC and any other party regarding the identified
attorneys and paralegal. (Id.)
On September 22, 2017, the County responded to ALDEA, asserting
that it lacked any documents responsive to Items 1, 4 and 5 of the request and that
Item 6 of the request was insufficiently specific to allow the County to respond.
(C.R. Item 1.) With respect to Items 2 and 3 of the Request, the County stated that,
to the extent any such documents existed, they would be exempt from disclosure
because they related to a non-criminal investigation, related to internal, pre-
decisional deliberations of an agency, were protected by the attorney-client privilege
or constituted attorney work product. (Id.) Notwithstanding its responses, the
County produced certain records to ALDEA that were not identified as being
responsive to any specific item in ALDEA’s request. (Id.)
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
ALDEA appealed the County’s failure to produce responsive records
to the OOR. (C.R. Item 1.) During the course of the appeal, the OOR Appeals
Officer requested an exemption log as to the nine records withheld with respect to
Item 2 of the request. (C.R. Item 6.) In its exemption log, the County objected to
the disclosure of the records on the basis that they contained internal, pre-decisional
deliberations and were protected by the attorney-client privilege. (C.R. Item 7.) The
Appeals Officer then issued an order requiring that the County submit these nine
records for in camera review. (C.R. Item 9.) The order provided that pursuant to
OOR’s interim procedural guidelines, the records would be stored in a secure
location and would not be “disclosed to any person other than the appeals officer,
the Executive Director or OOR staff counsel.” (Id.) The County objected to this
order, raising arguments that OOR lacks the authority to issue sua sponte orders
requiring the submission of documents for in camera review and that the review of
such documents by non-lawyer OOR staff would be unlawful; nevertheless, the
County ultimately submitted the records as ordered by the Appeals Officer.3 (C.R.
Items 10, 12.) The County also raised the argument during the proceedings before
the Appeals Officer that OOR lacked jurisdiction over ALDEA’s appeal because
Section 406 of the act commonly known as The County Code4 governed access to
the minute books and other fiscal records of a county and the RTKL was therefore
inapplicable. (C.R. Items 4, 7, 10, 12, 16.)
3
The County submitted six records for in camera review rather than the nine initially ordered after
the County objected that three of the records would be exempt from disclosure by a federal
regulation, 8 C.F.R. § 236.6, that prohibits state and local government entities from disclosing the
name or personal information of immigration detainees residing at a federally managed facility.
(C.R. Item 11.)
4
Act of August 9, 1955, P.L. 323, former 16 P.S. § 406.
3
On February 9, 2018, the Appeals Officer issued a Final Determination
that denied in part and granted in part ALDEA’s appeal. The Appeals Officer
concluded that the County had demonstrated that no records exist responsive to
Items 1, 4 and 5 of the Request, Item 6 of the Request is insufficiently specific and
that certain records responsive to Item 2 were protected by the attorney-client
privilege or reflected internal, pre-decisional deliberations and were thus exempt.
(Final Determination at 6-12, 15-16.) The Appeals Officer granted ALDEA’s appeal
in part, finding that other requested documents responsive to Item 2 of the Request
were not protected by privilege or otherwise exempt under the RTKL and therefore
were required to be produced to ALDEA. (Id. at 11-15.) In addition, the Appeals
Officer ruled that Section 406 of The County Code did not bar the release of
documents because that provision does not explicitly state that county records are
not subject to public access under the RTKL and, in any event, the requested records
are not fiscal records as to which Section 406 applies. (Id. at 5-6.) The County
sought reconsideration of the Final Determination, which was denied on February
23, 2018. On March 11, 2018, ALDEA filed an appeal from the Final Determination
in the Court of Common Pleas of Berks County.
The County filed this petition for review on March 9, 2018, identifying
OOR and ALDEA as respondents and asserting three counts. Counts I and II are
claims for declaratory relief. In Count I, the County seeks a declaratory judgment
that the provision in The County Code allowing for access to meeting minutes and
fiscal documents is in conflict with the RTKL and therefore, pursuant to Section
3101.1 of the RTKL, 65 P.S. § 67.3101.1,5 The County Code preempts the RTKL
5
“If the provisions of this act regarding access to records conflict with any other Federal or State
law, the provisions of this act shall not apply.” 65 P.S. § 67.3101.1.
4
with respect to public records requests made to counties. Count II seeks declaratory
judgment and injunctive relief with respect to OOR’s in camera review practices
based on claims that OOR lacks authority under the RTKL to issue an order requiring
that records be submitted for in camera review sua sponte and that the practices
violate the legislative scheme set forth in the RTKL and the Supreme Court’s
exclusive authority to regulate the practice of law under the Pennsylvania
Constitution. In Count III, the County requests that the Court invoke its ancillary
jurisdiction to review the County’s appeal of the Final Determination in conjunction
with this Court’s consideration of the County’s two original jurisdiction claims. In
that appeal, the County raises the same argument as it does in Count I, that OOR
erred by ruling that The County Code does not preempt the RTKL.6
OOR filed three preliminary objections to the petition for review. In
the first objection, OOR argues that Count I should be dismissed because the County
has an adequate statutory remedy under the RTKL of an appeal to the court of
common pleas in which it can argue that The County Code preempts RTKL requests
to counties. The second objection is a demurrer to Count II. Finally, OOR objects
to certain statements in paragraph 59 of the petition for review on the grounds that
they are scandalous and impertinent matter.
ALDEA filed five preliminary objections. Three of these objections
are to Count III of the petition. First, ALDEA argues that this Court lacks
jurisdiction to consider Count III and that it will not serve judicial economy to
consider the County’s appeal here as ALDEA already filed an appeal in the Court of
Common Pleas of Berks County. Second, ALDEA challenges Count III for
6
The appellate portion of the petition for review has been stayed pending disposition of the
preliminary objections filed by Respondents.
5
insufficient specificity of pleading. Third, ALDEA asserts that the County has failed
to exhaust its statutory remedy with respect to Count III of appealing the Final
Determination to the court of common pleas. ALDEA also filed an objection to
Count I in the nature of a demurrer, arguing that the County’s sweeping view of The
County Code preempting RTKL requests to counties fails as a matter of law. Finally,
ALDEA argues that it was improperly joined as a party to this action because OOR
is the true party in interest and ALDEA has no role in providing redress to the
County.7
We first address OOR’s preliminary objection to Count I of the petition
for review based on the failure to exhaust the statutory remedy under the RTKL of
an appeal of a Final Determination to the court of common pleas. It is undisputed
that this Court has original jurisdiction over claims against OOR for declaratory
relief. 42 Pa. C.S. § 761(a)(1) (providing for original jurisdiction over civil actions
against the Commonwealth government); Office of Governor v. Donahue, 98 A.3d
1223, 1233 (Pa. 2014) (OOR is a Commonwealth agency and “is therefore subject
to the original jurisdiction of the Commonwealth Court in any action properly
brought against it,” including a declaratory judgment action). Nevertheless, we
7
When reviewing preliminary objections to a petition for review in our original jurisdiction, this
Court must treat as true all well-pleaded, material and relevant facts together with any reasonable
inference that can be drawn from those facts. Russo v. Allegheny County, 125 A.3d 113, 121 n.5
(Pa. Cmwlth. 2015), aff’d, 150 A.3d 16 (Pa. 2016); Feldman v. Hoffman, 107 A.3d 821, 826 n.7
(Pa. Cmwlth. 2014). Courts, however, are not required to accept as true conclusions of law,
unwarranted inferences from facts, expressions of opinion or argumentative allegations. McCord
v. Pennsylvania Gaming Control Board, 9 A.3d 1216, 1218 n.3 (Pa. Cmwlth. 2010) (en banc). In
ruling on a preliminary objection in the nature of a demurrer, the objection is properly sustained
where, based on the facts averred, the law says with certainty that no recovery is possible; if doubt
exists, then it should be resolved in favor of overruling the objection. Bruno v. Erie Insurance
Co., 106 A.3d 48, 56 (Pa. 2014); Feldman, 107 A.3d at 826 n.7.
6
conclude that Count I is barred by the County’s failure to exhaust its statutory
remedies.
Pursuant to the doctrine of exhaustion of statutory remedies,8 a party
must exhaust all remedies before invoking this Court’s jurisdiction to challenge a
final agency adjudication. East Coast Vapor, LLC v. Pennsylvania Department of
Revenue, 189 A.3d 504, 509-10 (Pa. Cmwlth. 2018) (en banc); Keystone ReLeaf
LLC v. Pennsylvania Department of Health, 186 A.3d 505, 513 (Pa. Cmwlth. 2018)
(en banc). In addition, the doctrine of exhaustion of remedies is codified in the
Declaratory Judgments Act,9 which provides that declaratory relief “shall not be
available … with respect to any … [p]roceeding involving an appeal from an order
of a tribunal.” 42 Pa. C.S. § 7541(c)(3); see also 1 Pa. C.S. § 1504 (“In all cases
where a remedy is provided ... by any statute, the directions of the statute shall be
strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the
common law, in such cases, further than shall be necessary for carrying such statute
into effect.”); East Coast Vapor, 189 A.3d at 510. The rationale behind the doctrine
of exhaustion of statutory remedies “not only reflects a recognition of the [G]eneral
[A]ssembly’s directive of strict compliance with statutorily-prescribed remedies, it
also acknowledges that an unjustified failure to follow the [statutory] scheme
undercuts the foundation upon which the … process was founded.” East Coast
8
The terms “exhaustion of statutory remedies” and “exhaustion of administrative remedies” are
often used interchangeably in our decisional law. Donahue, 98 A.3d at 1231 n.6. In this matter,
because the alternative remedy to a declaratory judgment action is prescribed by the RTKL, we
will use the term “exhaustion of statutory remedies.” Id.
9
42 Pa. C.S. §§ 7531-7541.
7
Vapor, 189 A.3d at 510 (quoting Shenango Valley Osteopathic Hospital v.
Department of Health, 451 A.2d 434, 438 (Pa. 1982)).10
While the failure to exhaust a statutory or administrative remedy
normally bars this Court from hearing claims of declaratory or injunctive relief with
respect to agency action, “the exhaustion doctrine is neither inflexible nor absolute.”
Keystone ReLeaf, 186 A.3d at 513. Our Supreme Court has recognized three
exceptions to the doctrine of exhaustion of statutory remedies where (i) the
jurisdiction of an agency is challenged, (ii) the constitutionality of the statute is
challenged or (iii) the remedy at law is inadequate. Empire Sanitary Landfill, Inc.
v. Department of Environmental Resources, 684 A.2d 1047, 1054 (Pa. 1996);
Keystone ReLeaf 186 A.3d at 514. “Where … a legal remedy would result in a
multiplicity of duplicative lawsuits and, in contrast, an action in equity would
provide a tidy global resolution, this Court has found the legal remedy to be
inadequate.” Donahue, 98 A.3d at 1234 (quoting Pentlong Corp. v. GLS Capital,
Inc., 820 A.2d 1240, 1245-46 (Pa. 2003)).
All parties recognize that the RTKL requires that the County file any
appeal that it had from the Final Determination in the Court of Common Pleas of
Berks County. A county is a “local agency” under the RTKL, and the appropriate
venue for a local agency to challenge an OOR final determination is through an
appeal to the court of common pleas where the agency is located. Sections 102 and
1302 of the RTKL, 65 P.S. §§ 67.102, 67.1302; Philadelphia District Attorney’s
Office v. Stover, 176 A.3d 1024, 1027 (Pa. Cmwlth. 2017) (local agency’s appeal of
10
This Court must also be mindful that accepting a matter in this Court’s original jurisdiction
confers an appeal as of right to the Supreme Court to the detriment of the efficient administration
of justice and “would crowd cases involving important and unique issues from [the High Court’s]
allocatur docket.” Gossman v. Lower Chanceford Township Board of Supervisors, 469 A.2d 996,
998 (Pa. 1983); see also Miles v. Beard, 847 A.2d 161, 165 (Pa. Cmwlth. 2004).
8
an OOR decision must first be filed in court of common pleas before eventually
progressing to Commonwealth Court); Grine v. County of Centre, 138 A.3d 88, 94
(Pa. Cmwlth. 2016) (en banc) (a county qualifies as a local agency under the RTKL).
Nevertheless, the County argues that the statutory remedy of an appeal
of an OOR final determination involving a local agency to the court of common
pleas would be inadequate as to the declaratory relief the County asserts in Count I
because declaratory relief is necessary to prevent duplicative litigation across the
Commonwealth in which counties would raise the argument that they are exempted
from the RTKL because of The County Code. Furthermore, the County asserts that
Count I falls within the exceptions to the doctrine of exhaustion of statutory remedies
because it is challenging OOR’s jurisdiction to adjudicate disputes concerning
access to county records.
Upon review, we conclude that Count I does not fall into the class of
disputes that would allow this Court to assume original jurisdiction over the claim
and bypass the traditional appeal to the court of common pleas of an OOR
determination concerning the records of a local agency. Subsequent to the briefing
of the preliminary objections and oral argument in this matter, the General Assembly
enacted Act 154 of 2018,11 which includes extensive revisions to The County Code,
including Section 406. At the time that the petition for review was filed, Section
406 provided in full:
(a) The minute book and other fiscal records and
documents of every county may be open to the inspection
of any taxpayer thereof, but the proper officers may make
reasonable rules and regulations respecting the time of
such inspection.
11
Act of October 24, 2018, P.L. ___, No. 154.
9
(b) In case any officer shall refuse to permit the inspection
of any fiscal record or document the taxpayers may, by
petition to the court of common pleas of the county, set
forth his reasons for desiring to make such inspection, and,
if the court deems such reasons proper, it shall order the
officer to permit the inspection to be made.
Former 16 P.S. § 406. Act 154 amended Section 406 of The County Code by
deleting the entirety of the text of the statute quoted above and replacing it with:
Except as otherwise provided by this act, records of county
offices shall be open for inspection subject to the rules and
regulations provided in the act of February 14, 2008 (P.L.
6, No. 3), known as the “Right-to-Know Law.”
Id., § 10. Act 154 went into effect on December 23, 2018, 60 days after the Act was
approved by the Governor on October 24, 2018. Id., § 134.
In Count I of the petition for review, the only relief requested by the
County is a declaration that the records-access provision of the RTKL is not
applicable to counties and instead the county must only provide for physical
inspection of fiscal records in accordance with Section 406 of The County Code.
(Petition for Review ¶47.) As a result of Act 154, however, there is no longer a need
for this Court to consider this prospective declaratory relief as the General Assembly
has determined that the RTKL will apply to records requests to counties from
December 23, 2018 onward.12 Indeed, the County has conceded that the RTKL
applies to records requests to counties after Act 154 went into effect and that the
12
The current version of Section 406 states that county records shall be subject to inspection
pursuant to the RTKL and related rules and regulations “[e]xcept as otherwise provided by this
act.” 16 P.S. § 406. While Act 154 provides for additional requirements on counties for the
maintenance of records, the legislation does not contain any provision that limits the application
of the RTKL with respect to record requests to counties, and furthermore the County has not
alleged at any point during this appeal that any other provision of The County Code inhibits OOR’s
jurisdiction over a request to a county.
10
declaratory relief it seeks would have to be limited to requests submitted prior to the
effective date. (County Application to File Brief Concerning Change in Statutory
Law ¶¶8-9.) 13 Thus, the County’s concerns regarding the necessity of a single
declaratory judgment action with statewide effect to prevent piecemeal, duplicative
litigation in various courts of common pleas are no longer present in this dispute.
Furthermore, the core purpose of the Declaratory Judgments Act is “to settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations,” 42 Pa. C.S. § 7541(a); Bayada Nurses, Inc. v. Department of Labor
and Industry, 8 A.3d 866, 874 (Pa. 2010); Berwick Township v. O’Brien, 148 A.3d
872, 881 (Pa. Cmwlth. 2016), and in the absence of a live claim regarding the
prospective rights and duties of a county with respect to future requests to access
records, declaratory relief is inappropriate in this matter.
The exception to exhaustion of remedies for jurisdictional challenges is
equally inapplicable here. This exception applies where there is a matter pending
before an agency and the party seeking declaratory or injunctive relief challenges
the jurisdiction of the agency to proceed in that matter on purely legal grounds that
do not depend on the resolution of factual issues. Southeastern Pennsylvania
Transportation Authority v. City of Philadelphia, 101 A.3d 79, 82, 90 (Pa. 2014)
(exhaustion of remedies before agency was not required for challenge to agency’s
jurisdiction in seven administrative proceedings against plaintiff that were pending
before the agency at the time action was filed); East Lampeter Township v. County
of Lancaster, 696 A.2d 884, 886-88 (Pa. Cmwlth. 1997) (exhaustion not required for
challenge to agency’s authority to adjudicate pending administrative proceeding).
13
The County filed an application seeking leave to file an additional brief regarding the effect of
the Act 154 amendment to The County Code on this petition for review, which this Court denied
in a separate order of the same date as this opinion and order.
11
Here, there is no claim that there is a proceeding against the County pending before
OOR over which OOR lacks jurisdiction or that there was such a proceeding before
OOR at the time that the County filed the petition for review. Rather, the OOR
proceeding had already ended with the Final Determination and denial of
reconsideration prior to the County filing the petition to review. Moreover, there is
no possibility of the same jurisdictional challenges to future OOR proceedings
because, as a result of Act 154, the law is clear that records requests directed at
counties are subject to the RTKL and that OOR has jurisdiction over appeals from
denial of such requests.
Thus, the only statutory remedy to be exhausted here is an appeal in the
court of common pleas. No challenge, however, is asserted to the court of common
pleas’ jurisdiction to rule on the issue that is the subject of Count I, whether the
former version of Section 406(a) of The County Code removed records requests
against counties from the scope of the RTKL. To the contrary, the County expressly
asserts that the courts of common pleas have jurisdiction under Section 406 of The
County Code to adjudicate disputes over records requests directed at counties.
(Petition for Review ¶32.)
Furthermore, none of the cases that the County relies upon support its
contention that declaratory judgment is permissible here. In each of the cited cases,
Donahue, Pennsylvania State Education Association ex rel. Wilson v. Department
of Community and Economic Development, 50 A.3d 1263 (Pa. 2012), Grine, and
Court of Common Pleas of Lackawanna County v. Pennsylvania Office of Open
Records, 2 A.3d 810 (Pa. Cmwlth. 2010), while an appeal of an OOR final
determination may have been available to some party to the records request, special
circumstances existed that prevented the petitioner in the declaratory judgment
12
action from being able to avail itself of the traditional RTKL administrative and
statutory appeal process. In Wilson, Grine and Lackawanna County, the party
bringing the declaratory judgment action was not a party to the OOR determination
that was at issue and thus could not press its arguments through the normal RTKL
appeal process. Wilson, 50 A.3d at 1265-66, 1276-77 (action seeking declaratory
and injunctive relief by individual school employees and educators’ union in case
regarding access to home addresses of public school employees; records requests
were made to individual school districts and union and school employees brought
original jurisdiction action in this Court after discovering that many school districts
would not challenge the release of information); Grine, 138 A.3d at 91 (action for
declaratory and injunctive relief by two court of common pleas judges to prohibit
county in which the judges sat from releasing records of the judges’ telephone calls
in response to RTKL requests; judges were not party to request and county
voluntarily released records); Lackawanna County, 2 A.3d at 811-12 (action for
declaratory judgment and injunctive relief by Administrative Office of Pennsylvania
Courts (AOPC) to prevent an OOR order from going into effect that would have
required a county to provide records of an AOPC employee paid by the county;
records request was directed to the county rather than AOPC, and the county did not
appeal an adverse ruling by the OOR hearing officer). In Donahue, the Office of the
Governor filed a declaratory judgment action after it had received an adverse OOR
ruling that it sought to contest, but had won before the OOR on unrelated grounds
and its appeal to this Court was accordingly quashed because the Office was not
aggrieved; therefore, the Office’s only recourse under the RTKL was to wait for a
future request in which the same adverse ruling was made by OOR and then appeal
13
that determination to the courts. 98 A.3d at 1225-26, 1234-35.14 In this case, the
County had the option of filing an appeal of the OOR’s February 9, 2018 Final
Determination in which it could argue that The County Code preempted the RTKL,
which the County has in fact done in Count III of the petition for review, and
therefore no special situation exists to warrant a declaratory judgment action that
would short circuit the RTKL appeal process.
Finally, although the Act 154 amendment does not moot the County’s
argument that the prior version of Section 406 of The County Code preempts the
RTKL with respect to ALDEA’s July 27, 2017 request to the County for records
related to the BCRC facility, that argument is a discrete issue that may be fully
resolved in an appeal from OOR’s February 9, 2018 Final Determination. It is
therefore not an issue that is capable of producing continued or future duplicative
litigation that warrants declaratory relief or permits an exception to the doctrine of
exhaustion of remedies. Accordingly, Count I must be dismissed for failure to
exhaust the statutory remedy of an appeal of the Final Determination to the Court of
Common Pleas of Berks County.
Count II of the Petition for Review likewise fails to state a cause of
action in our original jurisdiction. The claims asserted in Count II are that OOR
lacks the power to order in camera review of documents sua sponte and that in
camera review of records by any other OOR personnel aside from appeals officers
violates the RTKL and the Pennsylvania Constitution. Neither of these claims is
legally valid.
14
In addition, as the Court noted, declaratory relief was proper in Donahue because any delay in
challenging the contested OOR ruling – that the five-day response period under the RTKL began
on the day that any agency employee received the record request rather than when the agency’s
open records officer received the request – would impose a continuing substantial burden on all
agencies subject to the RTKL. 98 A.3d at 1234-35.
14
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 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) (en banc); 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) (en
banc).
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).
The County argues that this authority is limited to cases where one of
the parties has requested in camera review or this Court has ordered OOR to conduct
an in camera review on remand. We do not agree. Contrary to the County’s
assertions, this Court did not hold in Center Township that OOR lacks authority to
order in camera review sua sponte. Rather, the Court held that “[t]he issue of such
sua sponte authority is not present in this appeal because Requester specifically
requested that the OOR conduct in camera inspection,” and the language in the
opinion on which the County relies was stated as a previously expressed opinion of
one judge on this Court in a concurrence, not an opinion of the Court. 95 A.3d at
15
368 n.19 (citing Office of Governor v. Scolforo, 65 A.3d 1095, 1105 (Pa. Cmwlth.
2013) (en banc) (McCullough, J., concurring)).
While Center Township addressed only the situation where a party had
requested in camera review and held that OOR has the power to order an agency to
produce documents for in camera review where such a request has been made, id. at
356, 369-71, subsequent decisions of this Court have not limited OOR’s in camera
inspection authority to requests by a party. In Township of Worcester, this Court
made clear that the basis of OOR’s authority to order in camera review is its power
and duty to develop an adequate factual record for evaluating the claims of privilege
and exemption from disclosure, not the power to grant a party’s evidentiary requests,
and the Court considered the fact that such a request was made only as one factor in
evaluating whether in camera review was appropriate. 129 A.3d at 59-62.
Following Township of Worcester, this Court has repeatedly reaffirmed OOR’s
authority to order in camera review without imposing any requirement of a party
request. UnitedHealthcare, 187 A.3d at 1060; Highmark, 163 A.3d at 490-91; Office
of the District Attorney of Philadelphia v. Bagwell, 155 A.3d at 1124 n.5; see also
Office of Open Records v. Pennsylvania State Police, 146 A.3d 814, 816 (Pa.
Cmwlth. 2016) (single-judge opinion). Moreover, in Pennsylvania Department of
Education v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015), this Court specifically
rejected the argument that OOR lacked authority to request an agency to provide
additional information without holding a hearing and without a specific request by a
party for that information, holding that such authority is analogous to the power to
order in camera review and concluding that OOR “appeals officers are empowered
to develop the record to ensure … courts may perform appellate review without the
necessity of performing their own fact-finding.” Id. at 1121.
16
Furthermore, barring OOR from in camera review of documents sua
sponte “would lead to an absurd result of limiting the ability to find facts efficiently,
and it may frustrate this Court’s ability to perform appellate review.” Pennsylvania
Department of Education v. Bagwell, 114 A.3d at 1121. In camera review can be of
critical importance in determining whether documents requested under the RTKL
are protected by privilege and may sometimes be the only means by which an
appeals officer and the courts can adjudicate a privilege claim on an adequate record.
California University of Pennsylvania v. Schackner, 168 A.3d 413, 422-23 (Pa.
Cmwlth. 2017); Center Township, 95 A.3d at 370.
OOR appeals officers have express authority to order in camera review
without the request of a party if a hearing is held. Section 1102(b)(2) of the RTKL,
65 P.S. § 67.1102(b)(2) (“If a hearing is held, 1 Pa. Code Pt. II shall apply unless the
agency has adopted regulations, policies or procedures to the contrary under this
subsection.”); 1 Pa. Code § 35.128 (at a hearing under 1 Pa. Code Pt. II, “the
presiding officer may call for further evidence upon an issue, and require the
evidence to be presented by the party or parties concerned … either at that hearing
or at the adjournments thereof”). In addition, as the County concedes, courts have
authority to order in camera review in an appeal from an OOR decision if they
conclude that the OOR record is inadequate. See Center Township, 95 A.3d at 367;
Levy v. Senate, 34 A.3d 243, 246 (Pa. Cmwlth. 2011) (en banc), reversed in part on
other issue, 65 A.3d 361 (Pa. 2013); Pennsylvania State Police v. Office of Open
Records, 5 A.3d 473, 477, 480 (Pa. Cmwlth. 2010). Thus, if it were held that OOR
has no power to order in camera review sua sponte, OOR would be forced, in
situations where no party makes a request, to either hold an unnecessary hearing or
default on its obligation to develop an adequate record, requiring the courts to
17
conduct additional fact-finding or remand to OOR for in camera review. The only
effect would be to require unnecessary delay and inefficiency in the review and
appeals process with no actual difference in whether in camera review is
conducted.15
We also find legally deficient the County’s challenge in Count II to
OOR’s policy permitting its personnel other than appeals officers, including the
OOR Executive Director, Deputy Director and staff counsel, to review records
submitted for in camera review.16
The County first asserts that this policy violates the legislative scheme
of the RTKL, which the County alleges confers exclusive responsibility on appeals
officers to perform that role. Under the RTKL, OOR appeals officers are responsible
for adjudicating appeals from local and Commonwealth agency denials of records
requests, conducting hearings, making evidentiary rulings and issuing final
15
We do not hold that the absence of a request by any party for in camera review or the opposition
of both parties cannot be a factor in determining whether in camera review is appropriate under
the facts of a particular case. Count II of the County’s petition for review asserts only an absolute
bar, regardless of the facts concerning the privilege or exemption claim and regardless of the need
for or appropriateness of in camera review. Moreover, declaratory relief would not be a proper
method of raising a claim of error in a specific case. Rather, an agency can raise claims that OOR
abused its discretion in ordering in camera review in a specific case by refusing to produce the
documents and opposing a petition by OOR to enforce its order to produce the records for in
camera inspection. See Center Township, 95 A.3d at 357; Office of Open Records v. Pennsylvania
State Police, 146 A.3d at 815-16.
16
The County alleges that OOR has published two documents on its website that state which OOR
personnel would have access to records submitted for in camera review: the “Interim Guidelines,”
which states that only appeals officers, staff counsel and the Executive Director may review in
camera records, and the “Procedural Guidelines,” which provides that access to records submitted
in camera is limited to appeals officers, staff counsel, the Executive Director and the Deputy
Director. (Petition for Review ¶52.) In ALDEA’s appeal from the County’s partial denial of its
request, the appeals officer issued an order stating that only the appeals officer, staff counsel and
the Executive Director would be permitted access to the documents that the County submitted for
in camera review. (C.R. Item 9.)
18
determinations. 65 P.S. § 67.1102(a) (setting forth appeals officer duties to request
evidence from the requester and agency, rule on procedural matters, hold hearings,
make evidentiary rulings and issue final determinations on behalf of OOR); see also
Section 1310(a)(5)(ii) of the RTKL, 65 P.S. § 67.1310(a)(5)(ii) (stating that appeals
officers shall hold hearings as necessary to ensure the remedies provided for under
the RTKL). The RTKL imposes the requirement that an appeals officer must be an
attorney and must complete an OOR training course prior to serving in the role. 65
P.S. § 67.1310(a)(5), (d).
The RTKL, however, does not envision that appeals officers operate in
a vacuum. In particular, the RTKL provides that the Executive Director of OOR
shall have broad authority and responsibility in the oversight of the agency. Pursuant
to the RTKL, the Executive Director “shall ensure that the duties of [OOR] are
carried out and shall monitor cases appealed to [OOR].” 65 P.S. § 67.1310(e). In
Arneson v. Wolf, 117 A.3d 374 (Pa. Cmwlth.) (en banc), aff’d, 124 A.3d 1225 (Pa.
2015), this Court examined the structurally and functionally independent role of
OOR and the Executive Director within the executive branch, ruling that the
Executive Director is insulated from removal by the Governor during his six-year
statutory term except for cause. In particular, we explained that while the Executive
Director is vested with administrative responsibilities as head of OOR, these
functions are incidental to the Executive Director’s core statutory obligation to
directly supervise and oversee OOR’s unique “quasi-judicial duty” in adjudicating
disputes arising under the RTKL concerning access to agency records. Id. at 387.
We concluded that “the Executive Director has the responsibility and power to
exercise a quasi-judicial duty,” and “the Executive Director is part and parcel of the
OOR’s quasi-judicial mandate.” Id.
19
In addition, the RTKL provides that OOR may appoint additional staff
to fulfill the statutory duties of the RTKL. The RTKL states that the Executive
Director “shall appoint … additional clerical, technical and professional staff as may
be appropriate and may contract for additional services as necessary for the
performance of the executive director’s duties.” 65 P.S. § 67.1310(d). The RTKL
also specifically sets forth among the duties of appeals officers to “[c]onsult with
agency counsel as appropriate” to further their role in resolving RTKL disputes. 65
P.S. § 67.1102(a)(3).
Thus, the RTKL not only provides that the Executive Director shall
directly oversee the adjudicative role fulfilled by OOR appeals officers, but the
Executive Director also has authority to appoint other staff members “as
appropriate” to meet the statutory obligations of the RTKL, and the RTKL explicitly
foresees that OOR appeals officers will consult with agency counsel in the
furtherance of their role in adjudicating RTKL appeals. Accordingly, it is evident
that the RTKL sets forth a legislative scheme allowing for the close supervision of
the appeals officers’ handling of their cases by the Executive Director and the
support of other staff to assist the appeals officers in the completion of their duties,
including counsel that can provide advice on legal matters when necessary and
appropriate. The County’s interpretation of the RTKL as isolating appeals officers
from other OOR personnel in their role in adjudicating RTKL disputes and not
letting them consult with agency counsel or the Executive Director is contrary to the
RTKL and our decision in Arneson. While the RTKL does not specifically state that
the Executive Director, staff counsel or other OOR employees may review in camera
records, an agency is not foreclosed from taking any action that is not specifically
authorized by the text of a statute. “[A]n administrative agency is vested with the
20
implied authority necessary to the effectuation of its express mandates, because the
Legislature cannot foresee all the problems incidental to the agency’s carrying out
its duties and responsibilities.” Center Township, 95 A.3d at 369 (quoting Sewer
Authority of the City of Scranton v. Pennsylvania Infrastructure Investment
Authority, 81 A.3d 1031, 1039 (Pa. Cmwlth. 2013)).
The County’s argument that OOR’s in camera review policies intrude
upon the Supreme Court’s exclusive authority to regulate the practice of law under
Article V, Section 10(c) of the Pennsylvania Constitution also fails. See Pa. Const.
art V, §10(c) (“The Supreme Court shall have the power to prescribe general rules
… for admission to the bar and to practice law.”). In Center Township, we held that
OOR’s in camera review of records claimed to be privileged does not infringe upon
Article V, Section 10(c). In that decision, we rejected the argument by a local agency
that the Supreme Court’s exclusive authority to regulate the practice of law deprives
OOR of subject matter jurisdiction from rendering decisions with respect to whether
a document submitted for in camera review is protected by the attorney-client
privilege, attorney work product doctrine or Rule of Professional Conduct 1.6(a),
which prohibits a lawyer from disclosing confidential information regarding the
representation of a client without the client’s informed consent. 95 A.3d at 363-65.
While recognizing that it would be error for OOR to order the production of records
that are protected from disclosure by an applicable privilege or Rule 1.6(a), we
concluded that “when the OOR exercises subject matter jurisdiction and determines
whether a request is covered by the attorney-client privilege, the work product
doctrine, or the ethics-based rule of confidentiality, the OOR does not infringe upon
the Supreme Court’s authority under Article V, Section 10(c).” Id. at 365; see also
Pennsylvania Public Utility Commission v. Sunrise Energy, LLC, 177 A.3d 438, 447
21
(Pa. Cmwlth. 2018) (OOR ruling that agency records were not protected by the
attorney work product doctrine did not infringe upon the Supreme Court’s exclusive
authority to regulate the practice of law).
The County has not alleged how the potential review of in camera
records by non-attorney OOR personnel such as the Executive Director would be
contrary to the Supreme Court’s exercise of its authority to regulate the practice of
law or the conduct of attorneys or would potentially infringe on the High Court’s
authority. While the RTKL provides that the Executive Director may supervise the
adjudicative function of the OOR and may appoint other staff, including other
attorneys, to assist appeals officers in the completion of their duties, nowhere in the
RTKL does it provide that the opinion of non-attorney OOR personnel will
supersede that of an appeals officer regarding a determination of privilege.17
Because the claims asserted in Count II fail as a matter of law, we
sustain OOR’s demurrer to Count II. The only remaining claim in the petition for
review following the dismissal of Counts I and II is Count III. In Count III, the
County requests that this Court exercise ancillary jurisdiction pursuant to Section
17
The County also alleges that the in camera review of documents protected by the attorney-client
privilege would result in the waiver of the privilege through the disclosure of the documents to
non-attorney OOR personnel. It is well-established that once attorney-client communications are
disclosed to third parties, the attorney-client privilege that attaches to those communications is
waived. Bagwell v. Pennsylvania Department of Education, 103 A.3d 409, 417 (Pa. Cmwlth.
2014) (en banc). However, the disclosure must be voluntary for waiver to apply. Id. at 418. In
this case, disclosure was compelled by an OOR order, (C.R. Item 9), and this Court has recognized
that OOR possesses the authority to request that agencies submit potentially privileged documents
for in camera review so that OOR can weigh the privilege claim. See UnitedHealthcare, 187 A.3d
at 1060; Center Township, 95 A.3d at 369-71 (granting OOR’s petition to enforce an order
directing production of records for in camera review). The County cites no legal authority for its
argument that review of privileged documents by non-attorney personnel of a tribunal following
the compelled disclosure of the documents for in camera review would result in waiver of the
privilege, and we discern no support for this novel contention.
22
761(c) of the Judicial Code over the County’s appeal from OOR’s determination in
the Final Determination that The County Code does not preempt the applicability of
the RTKL with respect to ALDEA’s request to the County for records related to the
BCRC facility. Pursuant to Section 761(c), ancillary jurisdiction is proper “over any
claim or other matter which is related to a claim or other matter otherwise within its
exclusive original jurisdiction.” 42 Pa. C.S. § 761(c). Because we have dismissed
Counts I and II, however, we now lack original jurisdiction claims to which Count
III could be ancillary. As Count III was filed in this Court, but we lack jurisdiction
to dispose of this claim, Count III must be transferred to “the proper court of this
Commonwealth,” the Court of Common Pleas of Berks County, where that court
may hear the County’s appeal of the OOR Final Determination in conjunction with
ALDEA’s previously filed appeal. Pa. R.A.P. 751(a); see also 42 Pa. C.S. § 5103(a).
Accordingly, we sustain OOR’s first preliminary objection to Count I
of the petition for review for failure to exhaust a statutory remedy and OOR’s second
preliminary objection to Count II in the nature of a demurrer. Counts I and II are
dismissed. Because both of the original jurisdiction claims are dismissed from this
action, we may not assert ancillary jurisdiction over Count III under Section 761(c)
of the Judicial Code and therefore we sustain ALDEA’s first preliminary objection
asserting a lack of jurisdiction over Count III. Count III is transferred to the Court
of Common Pleas of Berks County.
____________________________________
JAMES GARDNER COLINS, Senior Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Berks, :
:
Petitioner :
:
v. : No. 170 M.D. 2018
:
Pennsylvania Office of Open :
Records and ALDEA - The :
People’s Justice Center, :
:
Respondents :
ORDER
AND NOW, this 3rd day of January, 2019, the first and second
preliminary objections of Respondent Office of Open Records (OOR) are
SUSTAINED, and Counts I and II of the petition for review filed by Petitioner
County of Berks are DISMISSED. Count III of the petition for review is hereby
TRANSFERRED to the Court of Common Pleas of Berks County to be heard in
conjunction with the appeal of Respondent ALDEA – The People’s Justice Center
from the February 9, 2018 OOR Final Determination.
Jurisdiction relinquished.
____________________________________
JAMES GARDNER COLINS, Senior Judge