Department of Transportation v. Drack
2012 Pa. Commw. LEXIS 100
| Pa. Commw. Ct. | 2012Background
- Drack requested RTKL records related to ENRADD; DOT extended response time under RTKL §902(a)(4) for a legal determination.
- DOT February 9, 2011 letter claimed final response but mixed interim/final language and noted past due balances for previous requests.
- Drack appealed to OOR arguing DOT's extension was improper and that DOT failed to address merits in its final response.
- OOR initially ordered production of unredacted records; DOT sought reconsideration arguing scope and privilege issues.
- OOR ultimately maintained that DOT must provide unredacted records and rejected DOT’s privilege argument as not raised in the final response; DOT petitioned for review.
- Court affirmed OOR, holding that prepayment cannot convert a final response into an interim one and that privilege was waived for the attorney-client communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to delay processing for unpaid balances | Drack: DOT's unpaid balance cannot justify a final denial or interim final response. | DOT: Section 901 allows prepayment and extension; balance can delay processing. | No; final response required; prepayment cannot create an interim final denial. |
| Scope of OOR's consideration | Drack: OOR should address only DOT's February 9 denial; issues raised in appeal were limited. | DOT: OOR exceeded scope by considering new grounds. | OOR did not exceed scope; issues raised included DOT's failure to provide a final, compliant response. |
| Attorney-client privilege and final response | Drack: Privilege grounds could be raised in final response; failure to do so waives privilege. | DOT: Privilege grounds properly raised; not waivable unless raised in final response. | Privilege waived; DOT failed to raise it in the February 9, 2011 final response. |
| Mootness after production | Drack: The matter remains live due to ongoing privilege and redaction issues. | DOT: Production during pendency moots the dispute. | Not moot; privilege issue persisted and redactions were improper absent proper grounds. |
| Public-record status when privilege exists | Drack: Records should be unredacted as public records. | DOT: Some records remain privileged and are not public records. | Burden to prove exclusion on privilege rests with DOT; waiver of privilege leads to production without redaction. |
Key Cases Cited
- Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010) (RTKL grounds for denial cannot be raised for first time on appeal)
- Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa.Cmwlth. 2010) (pre-payment denial requires final denial with reasons)
- Loomis, Indiana University of Pennsylvania v. Loomis, 23 A.3d 1126 (Pa.Cmwlth. 2011) (prepayment rule; agency may withhold access when fees unpaid)
- McGogney, Board of Supervisors of Milford Township v. McGogney, 13 A.3d 569 (Pa.Cmwlth. 2011) (open records officer cannot waive privilege; client is Board)
- County of York v. Office of Open Records, 13 A.3d 594 (Pa.Cmwlth. 2011) (burden to prove privilege rests with the agency)