Levy v. Senate of Pennsylvania
2014 Pa. Commw. LEXIS 320
| Pa. Commw. Ct. | 2014Background
- Marc Levy, a journalist, requested Senate financial records reflecting hiring and payments to outside counsel for Senate Democratic Caucus employees under the RTKL; the Senate produced records but redacted client names and general service descriptions.
- The Senate initially asserted attorney-client privilege and also relied on the work-product doctrine, grand jury secrecy, and the RTKL criminal-investigation exception as bases for redaction.
- Commonwealth Court (en banc) reviewed unredacted records in camera (Special Master) and held client identities and general descriptions were not shielded by attorney-client privilege, though specific substantive entries were privileged.
- The Pennsylvania Supreme Court affirmed the privilege ruling but remanded for consideration of the alternate grounds (work-product, grand jury secrecy, criminal-investigation exception) that the Senate had raised before the Senate Appeals Officer.
- On remand the Commonwealth Court declined to reopen the evidentiary record, held the Senate waived any new argument that an entire record may be withheld if any part is privileged, and considered the three alternate grounds on the existing record.
- The Court concluded none of the alternate grounds justified redacting client identities or generic descriptions of services; specific substantive descriptions previously remained privileged.
Issues
| Issue | Plaintiff's Argument (Levy) | Defendant's Argument (Senate) | Held |
|---|---|---|---|
| Whether an agency can withhold an entire record if any portion is privileged or exempt | The Senate waived the argument and, in any event, Section 706 requires redaction rather than wholesale withholding | If any part of a record is privileged or exempt, the agency may withhold the entire record and need not alter its redactions | Waived/newly asserted; beyond remand scope; court rejects as improper to consider and notes Supreme Court skepticism |
| Whether general billing descriptions are protected by the work-product doctrine | General, non-substantive billing entries (e.g., "phone call," "memo") are not work-product and do not reveal attorney mental impressions | Such entries reveal attorney activities and strategies and thus are protected work-product | Rejected; generic, rote billing entries do not reveal mental impressions and are not protected |
| Whether client identities in billing records are protected by federal or state grand jury secrecy | Disclosure of a client who sought counsel related to a grand jury could reveal matters occurring before the grand jury and must be kept secret | Identities of witnesses before a grand jury are protected from disclosure under grand-jury secrecy rules | Rejected; billing records were created for independent fiscal purposes and do not constitute "matters occurring before the grand jury," and witnesses are not blanket-prohibited from disclosure |
| Whether the criminal-investigation exception shields client names and general service descriptions | Disclosure would reveal institution, progress, or focus of criminal investigations (including grand jury activity) | The records are not investigative records of a law-enforcement agency; redaction is necessary to avoid revealing investigation progress | Rejected; records do not relate to law-enforcement functions of the Senate and do not reveal institution or progress of investigations |
Key Cases Cited
- Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013) (Supreme Court affirmed privilege holdings and remanded for consideration of alternate grounds)
- Levy v. Senate of Pa., 34 A.3d 243 (Pa. Cmwlth. 2011) (en banc) (initial Commonwealth Court decision and in-camera review analysis)
- Heavens v. Pa. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth. 2013) (burden on agency to prove privilege; discussion of work-product)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (work-product protects mental impressions and materials prepared in anticipation of litigation)
- Dages v. Carbon Cnty., 44 A.3d 89 (Pa. Cmwlth. 2012) (work-product broader than attorney-client privilege)
- Tribune-Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008) (public interest in disclosure of public entity expenditures)
- McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993) (federal grand-jury material and FOIA context)
- Procter & Gamble Co. v. United States, 356 U.S. 677 (1958) (rationales for grand jury secrecy)