208 A.3d 178
Pa. Commw. Ct.2019Background
- Requester (Nolan Finnerty) sought records under Pennsylvania's RTKL about possible privatization/monetization of Chester Water Authority; request included communications among Department, EConsult (Act 47 coordinator), and subcontractors McNees (legal) and Fairmount (financial).
- Department hired EConsult by contract to act as Act 47 Coordinator; EConsult subcontracted McNees and Fairmount (with Department approval and payment flowing through EConsult) to perform legal and financial work supporting the Recovery Plan.
- Department withheld portions of an EConsult report and a draft email attachment as exempt under the RTKL internal, predecisional deliberation exception; it initially also asserted attorney-client/work-product privileges but those records were later disclosed and the privilege challenges became moot.
- OOR affirmed in part, finding the deliberative exemption applied because the records were exchanged among the Department and contractors engaged to assist implementation of the Recovery Plan.
- On appeal to this Court, the sole disputed legal question was whether communications shared with non-agency contractors/subcontractors may be considered "internal to the agency" under the RTKL exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether records shared with contractors or subcontractors are "internal to the agency" under RTKL § 708(b)(10)(i) | Records shared outside the agency (with EConsult, McNees, Fairmount) are not "internal" and thus not exempt; RTKL exceptions should be narrowly construed | Communications are internal where the agency engaged contractors by contract to assist in agency decision-making; exchanging deliberative material with essential consultants is covered | Court held such communications were "internal to the agency" given the contractual/consultant relationship and purpose (affirming OOR) |
| Whether withholding based on attorney-client/work-product applied | Requested review of exemptions; argued privileges invoked improperly | Department later disclosed those records; counsel agreed disclosure made | Court dismissed privilege challenge as moot due to disclosure |
Key Cases Cited
- McGowan v. Pa. Dep't of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (defines elements of internal, predecisional deliberation exception)
- Nat'l Inst. of Military Justice v. U.S. Dep't of Justice, 512 F.3d 677 (D.C. Cir. 2008) (FOIA deliberative-process exemption can cover consultant communications solicited by agency)
- Smith ex rel. Smith Butz, LLC v. Pa. Dep't of Envtl. Prot., 161 A.3d 1049 (Pa. Cmwlth. 2017) (records "internal" when maintained within an agency or among governmental agencies)
- Kaplin v. Lower Merion Twp., 19 A.3d 1209 (Pa. Cmwlth. 2011) (interpretation of "internal" communications under RTKL)
- Office of the Governor v. Davis, 122 A.3d 1185 (Pa. Cmwlth. 2015) (RTKL's remedial purpose and narrow construction of exemptions)