Board of Supervisors of Milford Township v. McGogney
2011 Pa. Commw. LEXIS 6
| Pa. Commw. Ct. | 2011Background
- Requestor filed a Right to Know Law request seeking all invoices from Township solicitor to Milford Township from June 1, 2007 to present regarding Coyotes Show Club.
- Open records officer Awckland unilaterally released 57 unredacted invoices within five days, before solicitor’s review or consent, detailing privileged attorney-client work.
- Township Board later invoked the attorney-client privilege and authorized its solicitor to take action; redacted versions were provided to Requestor.
- Requestor refused to return the unredacted invoices; the Board filed suit for declaratory and injunctive relief; trial court issued a permanent injunction ordering return of unredacted invoices and prohibiting use of their contents.
- On appeal, the court held the invoices were protected by attorney-client privilege, Awckland lacked authority to waive it, and the waiver doctrine did not apply; the permanent injunction was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the invoices protected by attorney-client privilege making them not public records? | Requestor argues privilege was waived by Awckland’s disclosure. | Township argues the RTKL excludes privileged documents; Board and solicitor decide waiver. | Invoices are privileged; not public records; no waiver. |
| Did Awckland’s disclosure trigger a waiver under Carbis Walker factors? | Waiver occurred due to inadvertent disclosure by open records officer. | Carbis Walker factors do not support a waiver; safeguards and timely remediation exist. | Carbis Walker factors militate against waiver. |
| Did the open records officer have actual authority to waive attorney-client privilege? | Awckland’s actions binding on Board as open records officer. | Open records officer has ministerial role; cannot waive privilege on behalf of Board. | Waiver not authorized; privileged status maintained. |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (Supreme Court) (attorney-client privilege protects confidential communications to encourage full disclosure)
- Trammel v. United States, 445 U.S. 40 (Supreme Court) (necessity of full knowledge by counsel for effective representation)
- Fisher v. United States, 425 U.S. 391 (Supreme Court) (purpose of privilege to encourage disclosure to attorneys)
- Hunt v. Blackbum, 128 U.S. 464 (1888) (privilege founded on necessity of legal aid in administration of justice)
- Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa.Super.2007) (five-factor test for inadvertent disclosure waiver)
- Fidelity & Deposit Co. v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996) (factors for determining inadvertent disclosure waiver)
- Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223 (Pa. Super. 2008) (attorney-client privilege belongs to the client)
- Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmmwth. 2010) (RTKL extension and scope considerations)
- Schenck v. Township of Center, 893 A.2d 849 (Pa. Cmmwth. 2006) (solicitor's billing descriptions (privileged absent client consent))