Bagwell v. Pennsylvania Department of Education
103 A.3d 409
| Pa. Commw. Ct. | 2014Background
- Requester sought records sent to the Pennsylvania Secretary of Education in his ex officio role as a Penn State Board member relating to the Sandusky investigation and Freeh Sporkin & Sullivan’s work.
- The Department and Penn State (PSU) withheld many documents, claiming attorney-client privilege and the attorney work-product doctrine; OOR reviewed records in camera and ordered limited disclosure but upheld most privileges.
- PSU submitted affidavits asserting the withheld documents were privileged and had not been disclosed to third parties; Requester argued Freeh was retained for fact-finding (not legal advice) and that PSU waived privileges by disclosing subject matter to third parties and via limited waivers to the Attorney General.
- OOR denied Requester’s request for a hearing; it found many redactions reflected attorneys’ mental impressions and were protected as work product and/or privileged communications, and concluded PSU had not waived privileges.
- Requester appealed, raising two primary issues: whether work-product protection requires anticipation of litigation, and whether PSU waived privileges by subject-matter disclosures; he also sought RTKL attorney fees.
Issues
| Issue | Bagwell’s Argument | PSU’s Argument | Held |
|---|---|---|---|
| Whether work-product protection requires materials be prepared in anticipation of litigation | Work-product applies only to materials prepared in anticipation of litigation; investigative materials and factual compilations are not protected | Work-product covers attorneys’ mental impressions and other materials regardless of narrow litigation-only requirement | Court held work-product is not limited to documents prepared solely for litigation; mental impressions/opinions by counsel are protected and redactions affirmed |
| Whether PSU waived privileges by disclosing subject matter to third parties (subject-matter waiver) | PSU’s public and third-party disclosures (including grand jury-related testimony and updates to NCAA/Big Ten) waived privilege as to related documents | PSU never disclosed the specific withheld records; any limited disclosures were selective and should not trigger broad subject-matter waiver | Court declined to recognize broad subject-matter waiver here; found no evidence the specific records were disclosed and affirmed no waiver |
| Proper allocation of burden to prove waiver in RTKL appeals | Requester argued burden should not fall on requester because RTKL limits discovery and due process | PSU argued absence of waiver is an element of privilege and requester must prove waiver when alleged | Court applied traditional rule: party asserting waiver bears the burden; did not shift burden beyond established law |
| Whether Requester is entitled to attorney fees under RTKL | Fees sought based on alleged bad faith and unreasonable denial of access | PSU and Department acted reasonably and no bad faith shown | Denied because court affirmed OOR’s determination and found no bad faith or unreasonable legal interpretation |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (privilege protects communications, not underlying facts)
- Hickman v. Taylor, 329 U.S. 495 (work-product doctrine protects attorney mental impressions)
- Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (work-product is qualified and may be waived)
- LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (work product may remove material from public-record inquiry)
- Nationwide Mut. Ins. Co. v. Fleming, 605 Pa. 468, 992 A.2d 65 (discussion of subject-matter waiver and fairness rationale)
- Levy v. Senate of Pa., 94 A.3d 436 (Pa. Cmwlth.) (work-product protects attorneys’ mental impressions in RTKL context)
- Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth.) (burden of proving privilege rests with party asserting it)
- Commonwealth v. Sandusky, 70 A.3d 886 (Pa. Super.) (limited disclosure does not necessarily waive work-product protections)