249 A.3d 1106
Pa.2021Background
- The Pennsylvania Department of Community and Economic Development (DCED) administers Act 47, which authorizes DCED to appoint recovery coordinators (employees or private consultants) to prepare municipal recovery plans.
- In 2016 DCED contracted with Econsult Solutions as recovery coordinator for the City of Chester; Econsult subcontracted Fairmount Capital and McNees (financial and legal services).
- Chester Water Authority (Authority) sought RTKL records in 2017 concerning communications about possible privatization/sale of the water authority; DCED produced some material but withheld/redacted many documents.
- DCED asserted Section 708(b)(10)(i)(A) of the RTKL (internal, predecisional deliberations) and attorney-client/work-product protections; OOR and the Commonwealth Court accepted a "consultant corollary" treating communications with outside consultants as "internal."
- The Commonwealth Court affirmed; DCED later produced some documents claimed privileged, and the Supreme Court granted review to decide principally whether the RTKL deliberative-process exception covers communications between an agency and private consultants.
Issues
| Issue | Plaintiff's Argument (Authority) | Defendant's Argument (DCED) | Held |
|---|---|---|---|
| Whether §708(b)(10)(i)(A) (internal, predecisional deliberations) covers communications between an agency and private consultants (consultant corollary) | "Internal" means within the agency; outside consultants are not "internal" and communications should be public to promote transparency | Functional approach: extending the exception to consultants preserves candid advice and efficient administration; Act 47 coordinators need protection like employees | Court rejected consultant corollary: the statute’s plain meaning limits the exception to agency-internal and inter-agency deliberations; communications with private consultants are not insulated |
| Statutory interpretation: plain meaning v. functional approach | Statute is unambiguous; exceptions must be narrowly construed in favor of disclosure | A functional reading better serves government operations and the public interest in effective administration | Court applied plain-meaning canon and narrow-construction principle: where Legislature did not include outsiders, courts may not extend the exception; policy balancing is for the Legislature |
| Attorney-client and work-product privileges (whether issues remain) | Authority argued DCED’s late production moots review and may be used to evade scrutiny; asked court to decide privileges on merits or apply mootness exceptions | DCED produced documents claimed privileged before argument; Commonwealth Court found those issues moot | Supreme Court affirmed mootness as to attorney-client/work-product issues; Authority’s concession/production mooted the claims and exceptions weren’t shown to apply |
| Mootness exceptions (capable of repetition/ public importance) | Department may serially assert privilege then withdraw to avoid review; exception should apply to prevent evasion | DCED’s production resolved dispute; no demonstrated pattern of evasion on record | Court declined to apply mootness exceptions absent record showing serial evasive conduct or exceptional public-importance basis; left policing of any future abuse to courts/legislature |
Key Cases Cited
- Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) (discusses consultant-corollary reasoning under FOIA)
- Nat'l Inst. of Military Justice v. DOJ, 512 F.3d 677 (D.C. Cir. 2008) (supports functional consultant corollary for candid advice)
- Rojas v. FAA, 927 F.3d 1046 (9th Cir. 2019) (rejects consultant corollary as contrary to statutory text)
- Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017) (limits consultant-corollary reach under FOIA)
- Finnerty v. DCED, 208 A.3d 178 (Pa. Cmwlth. 2019) (Commonwealth Court applying consultant corollary to affirm DCED)
- PSP v. Grove, 161 A.3d 877 (Pa. 2017) (RTKL exceptions construed narrowly)
- SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012) (RTKL remedial purpose and transparency)
- Cromwell Twp. v. DEP, 32 A.3d 639 (Pa. 2011) (mootness and exceptions doctrine)