Com., Office of the Governor v. P. Engelkemier
148 A.3d 522
| Pa. Commw. Ct. | 2016Background
- On July 7, 2015 Engelkemier requested all emails and calendar entries of Governor Wolf’s Chief of Staff Katie McGinty from Jan 20, 2015 to present; he later sent a follow-up request narrowing the email date range to July 7–22, 2015.
- The Office of the Governor invoked a Section 902 extension, proposed a rolling production, and requested subject-matter clarification for the large volume of recovered emails; Engelkemier supplied a 109-term keyword list.
- The Office produced calendars (disputed separately) and provided some email documents but withheld many items claiming exemptions (personal/non-records, predecisional deliberations, attorney-client privilege, confidential tax information) and submitted a Diaz affidavit plus a search log.
- Engelkemier appealed the Office’s partial denial of emails to the OOR; the OOR ordered production of withheld responsive records except those protected by privilege, found the request sufficiently specific, and rejected the Office’s predecisional deliberation and other exemption showings (but accepted privilege/work-product for some records).
- The Office appealed to the Commonwealth Court raising timeliness, inadequacy of the certified record, lack of specificity of the request, and that OOR failed to consider evidence supporting exemptions.
- The Commonwealth Court affirmed OOR: appeal timely (Office caused bifurcation), certified record adequate, request met RTKL specificity (time + scope + keyword context), and Office failed to meet burden for predecisional/tax exemptions though some privilege claims were upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of OOR appeal | Engelkemier: appeal was timely as to emails; calendar dispute was separate | Office: multiple appeals from same initial request; appeal untimely after calendar decision | Appeal timely as to emails; Office’s handling bifurcated requests and requester should not be prejudiced |
| Adequacy of certified record | Engelkemier: record limited to email dispute and is adequate | Office: record unclear/separate proceedings require remand or consolidation | Record met Section 1303(b) requirements; adequate for appellate review |
| Specificity of RTKL request | Engelkemier: limited timeframe and scope + keyword list suffice | Office: 109-term keyword list is overly broad and lacks subject-matter specificity | Request satisfied Section 703 when combined with Office’s acceptance of keywords and rolling production; specificity upheld |
| Exemptions claimed (predecisional, tax, personal) | Engelkemier: Office failed to prove exemptions by preponderance | Office: Diaz affidavit, supplemental affidavit, and search/privilege log support exemptions | OOR correctly rejected predecisional and tax exemptions (affidavit conclusory and targeted wrong period); some privilege/work-product with adequate affidavit were upheld |
Key Cases Cited
- Department of Education v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (agencies may not evade RTKL timing requirements by issuing interim responses)
- Department of Transportation v. Drack, 42 A.3d 355 (Pa. Cmwlth. 2012) (agency must provide full reasons for denial within extension period)
- Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Cmwlth. 2015) (three-part specificity test: subject matter, scope, timeframe)
- Montgomery County v. Iverson, 50 A.3d 281 (Pa. Cmwlth. 2012) (requests lacking timeframe/specific individuals can be too broad)
- Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (conclusory affidavits insufficient to prove predecisional deliberation exemption)
- Office of the Governor v. Davis, 122 A.3d 1185 (Pa. Cmwlth. 2015) (in camera review can obviate need for detailed affidavits when exemptions are apparent on the face of records)
- Meguerian v. Office of Attorney General, 86 A.3d 924 (Pa. Cmwlth. 2013) (agency’s practical ability to identify responsive records can undercut specificity objections)
- McGowan v. Pennsylvania Dep’t of Environmental Protection, 103 A.3d 374 (Pa. Cmwlth. 2014) (privilege log plus affidavit can support exemption claims)
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (exemptions narrowly construed; RTKL is remedial statute)