DOC v. B. Fiorillo
DOC v. B. Fiorillo - 1043 C.D. 2016
| Pa. Commw. Ct. | May 1, 2017Background
- Requester Ben Fiorillo sought DOC emails concerning inmate health issues at SCI‑Fayette and communications with the Department of Health about inmate medical records under the RTKL.
- The DOC withheld numerous emails citing attorney‑client privilege, attorney work product, and the internal, predecisional deliberations exemption; OOR ordered production after in camera review of many items.
- DOC appealed OOR's Final Determination to the Commonwealth Court, defending withheld items as privileged or predecisional deliberations tied to the agency's response to the "No Escape" investigative report and related media handling.
- OOR had already produced some documents and found certain items (e.g., Items 14, 61, 64) were not protected; DOC did not contest Item 14 on appeal but challenged OOR's rulings on others.
- The Commonwealth Court conducted de novo review, performed an in camera inspection, and evaluated whether items were internal, predecisional, deliberative, or protected by attorney‑client/work‑product doctrines.
- Court affirmed disclosure for many documents but reversed OOR as to specified items, finding some emails qualified as predecisional deliberations and Items 61 and 64 were protected attorney‑client/work‑product communications.
Issues
| Issue | Fiorillo's Argument | Department of Corrections' Argument | Held |
|---|---|---|---|
| Whether withheld emails qualify as internal, predecisional deliberations under RTKL §708(b)(10)(i)(A) | DOC failed to show an operative decision; many emails are factual or fact‑gathering and thus disclosable | Emails reflect internal deliberations about how to respond to the No Escape Report and media inquiries and predate any decision, so they are exempt | Court: Many items are factual/disclosable, but specific items (23–26, 38, 40, 44–45, 47, 50–51, 59) (in whole or in part) are internal, predecisional, and exempt; affirmed in part, reversed in part |
| Whether discussion of media responses is protected deliberative material | Media‑response communications are primarily factual and not policymaking; therefore not protected | Media‑response communications tied to strategy for handling the pending investigation are deliberative and predecisional | Court: Where media strategy was intertwined with the Department's contemplated course of action on the pending investigation, those portions are protected |
| Whether Items 61 and 64 are protected by attorney‑client privilege or attorney work product | Privilege not established; no evidence communications were for legal advice or contain counsel's mental impressions | Items are communications between counsel and agency employees containing legal analysis, advice, and counsel's impressions | Court: Items 61 and 64 are privileged and protected by work product; OOR erred in ordering their disclosure |
| Burden and sufficiency of affidavits/agency proof to withhold records | Affidavits and index insufficient to establish exemptions for many items | Agency provided affidavits and submitted documents for in camera review to meet its burden | Court: Concluded agency met burden for certain items (as above) after in camera review; otherwise affirmed OOR's disclosure determinations |
Key Cases Cited
- Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth.) (agency affidavits can justify exemptions but exemptions construed narrowly)
- McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth.) (distinguishes factual material from deliberative communications; factual material generally disclosed)
- Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth.) (elements for invoking deliberative exemption and limits on privilege/work product)
- Heavens v. Pa. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth.) (work‑product protects attorney mental impressions and strategy)
- Twp. of Worcester v. Office of Open Records, 129 A.3d 44 (Pa. Cmwlth.) (in camera review appropriate for assessing predecisional deliberations)
- Chambersburg Area Sch. Dist. v. Dorsey, 97 A.3d 1281 (Pa. Cmwlth.) (elements to establish attorney‑client privilege)
- Pennsylvania State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth.) (RTKL remedial purpose; exemptions narrowly construed)
- Pa. Office of Attorney Gen. v. Bumsted, 134 A.3d 1204 (Pa. Cmwlth.) (preponderance standard explained)
- Trentadue v. Integrity Comm., 501 F.3d 1215 (10th Cir.) (when factual material is deliberative only if disclosure would reveal agency evaluation or analysis)