Heavens v. Pennsylvania Department of Environmental Protection
2013 Pa. Commw. LEXIS 100
| Pa. Commw. Ct. | 2013Background
- Requester sought DEP investigation records regarding the February 23, 2011 Joseph Powers/Independence Township fire.
- DEP denied access in part under RTKL exemptions: noncriminal investigation, attorney-client, and work-product privileges.
- OOR Appeals Officer upheld some exemptions; final determination granted access only to a consent decree with Chesapeake Appalachia, LLC.
- Requester appealed to the Commonwealth Court challenging the exemptions and the adequacy of DEP's showing.
- Court held DEP prevailed by preponderance on noncriminal investigation exemption and on attorney-client/work-product privileges; redaction/other grounds unnecessary to decide.
- DEP provided a detailed log of 123 records with affidavits supporting exemptions; 105 records under noncriminal exemption, 18 under privilege protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEP met the noncriminal investigation exemption burden. | Heavens contends DEP failed to prove records fit the exemption. | DEP argues records reflect a systematic, noncriminal investigation and are exempt. | Yes; DEP met the burden for the noncriminal exemption. |
| Whether attorney-client privilege applies to the records. | Heavens argues records should be disclosed despite privilege. | DEP demonstrated confidential legal communications for obtaining/providing legal advice. | Yes; attorney-client privilege applies to the 18 records. |
| Whether work-product doctrine applies to the records. | Heavens argues records should be accessible notwithstanding work-product. | DEP showed records contain attorney's mental impressions and strategy. | Yes; work-product doctrine protects the remaining records. |
| Whether predecisional deliberations or informant privilege warranted withholding. | Heavens argues these grounds were erroneously relied on. | DEP asserted these privileges; the Appeals Officer considered them. | Not necessary to decide; record supports other exemptions. |
Key Cases Cited
- Michak v. Department of Public Welfare, 56 A.3d 925 (Pa.Cmwlth.2012) (affidavits may support exemptions under RTKL)
- Department of Environmental Protection v. Legere, 50 A.3d 260 (Pa.Cmwlth.2012) (affidavits clarify steps to locate records; preponderance standard)
- Sherry v. Radnor Township School District, 20 A.3d 515 (Pa.Cmwlth.2011) (OOR may rely on affidavits in applying exemptions)
- Levy v. Senate, 34 A.3d 243 (Pa.Cmwlth.2011) (burden on agency to demonstrate privilege applies)
- Johnson v. Pennsylvania Convention Center Authority, 49 A.3d 920 (Pa.Cmwlth.2012) (grievance materials do not automatically exempt all materials)
- Gillard v. AIG Insurance Co., 609 Pa. 65, 15 A.3d 44 (2011) (attorney-client privilege extends to agency communications)
- Saunders v. Pennsylvania Department of Corrections, 48 A.3d 540 (Pa.Cmwlth.2012) (redaction and privilege considerations under RTKL)
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) (scope of RTKL review; independent review standard)