California University of PA v. B. Schackner and Pittsburgh Post-Gazette
2017 Pa. Commw. LEXIS 617
| Pa. Commw. Ct. | 2017Background
- California University of Pennsylvania received RTKL requests (Sept. 2016) for correspondence about the Vulcan Parking Garage structural failure and produced some records but withheld others.
- University withheld 150 items, citing RTKL exemptions: noncriminal investigation (§708(b)(17)), predecisional deliberations (§708(b)(10)), and attorney-client privilege; it submitted a privilege log and an affirmation from VP Robert Thorn.
- The OOR’s final determination (Jan. 3, 2017) rejected the University’s claim that it was conducting a noncriminal investigation and found many deliberative claims conclusory; it ordered disclosure of most records but upheld secrecy for records 134, 135, and 146–154.
- OOR also rejected the attorney-client privilege claims for nine records as inadequately supported.
- The University petitioned for review; the Commonwealth Court affirmed in part, vacated in part, and remanded for in camera review of certain records claimed as privileged (Log nos. 56–58, 119–123, 128).
Issues
| Issue | Plaintiff's Argument (University) | Defendant's Argument (OOR/Requester) | Held |
|---|---|---|---|
| Whether withheld records are exempt as noncriminal investigations under §708(b)(17) | University: it conducted a systematic inquiry into cause, repair, and cost and thus qualifies for the exemption | OOR/Requester: University did routine fact‑gathering/maintenance, not an official investigatory probe with legislatively granted investigatory power | Court: University failed to show an official, legislatively authorized noncriminal investigation; exemption not established |
| Whether records are exempt as internal, predecisional deliberations under §708(b)(10)(i)(A) | University: records reflect internal drafts, discussions and communications about campus messaging and decisions | OOR/Requester: affidavit and log are conclusory; entries list subjects but don't show how disclosure would reveal predecision deliberations | Court: many log entries and affidavit conclusory; OOR correctly found most were not exempt, though it upheld exemption for some records (134,135,146–154) |
| Whether certain records are protected by the attorney-client privilege | University: nine log entries are privileged client–attorney communications concerning investigation and related legal matters | OOR/Requester: privilege log and affidavit are conclusory and fail to satisfy Bagwell elements | Court: Thorn affirmation/log insufficient to meet Bagwell; but because disclosure of details could reveal legal strategy, remanded for OOR in camera review of log items 56–58, 119–123, 128 to determine privilege applicability |
| Appropriate remedy/process for assessing privilege where public interest and privilege tension exists | University: asks for in camera review to avoid disclosing privileged matters while meeting Bagwell | OOR/Requester: relied on record; did not conduct in camera review initially | Court: authorizes in camera review by OOR when agency’s public affidavit would risk revealing privileged strategy; remanded for that review for specified items |
Key Cases Cited
- Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth.) (affidavits must be detailed and nonconclusory)
- Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth.) (definition of "investigation" for §708(b)(17))
- Pennsylvania Department of Education v. Bagwell, 131 A.3d 638 (Pa. Cmwlth.) (elements and proof required for privilege claims)
- Department of Public Welfare v. Chawaga, 91 A.3d 257 (Pa. Cmwlth.) (audit/gathering ancillary to duties not an "official probe")
- Office of Open Records v. Center Township, 95 A.3d 354 (Pa. Cmwlth.) (OOR authority to conduct in camera review for privilege)
- City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth.) (RTKL requests may not intrude on litigation/settlement communications)
- Brown v. Pennsylvania Department of State, 123 A.3d 801 (Pa. Cmwlth.) (agency bears burden to prove exemptions by preponderance)
- Delaware County v. Schaefer, 45 A.3d 1149 (Pa. Cmwlth.) (explaining preponderance standard)
- Kaplin v. Lower Merion Township, 19 A.3d 1209 (Pa. Cmwlth.) (three-part test for predecisional deliberative exemption)
- McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374 (Pa. Cmwlth.) (distinguishing factual information from deliberative content)
- Dages v. Carbon County, 44 A.3d 89 (Pa. Cmwlth.) (importance and two‑way nature of attorney‑client privilege)