McGowan v. Pennsylvania Department of Environmental Protection
103 A.3d 374
| Pa. Commw. Ct. | 2014Background
- Requester petitioned for access to records from the Department under the RTKL regarding Perkiomen Creek redesignation—specifically documents 11, 16, and 32.
- Department denied disclosure, citing predecisional deliberations and attorney-client/work-product privileges; logged withheld records in a Privilege/Exemption Log.
- OOR denied Requester’s appeal, holding documents 11, 16, and 32 exempt as internal, predecisional deliberations.
- Court held the Department’s Log and affidavits sufficiently showed internal nature and deliberative character for all three documents.
- However, the court remanded for in camera review to determine whether Documents 16 and 32 contain purely factual material severable from the deliberative portions.
- If severable factual material exists, redaction of non-severable deliberative content may be required; otherwise, disclose or redact accordingly within 90 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Documents 11, 16, and 32 internal to the Department? | Requester contends affidavits are conclusory and insufficient to prove internality. | Department's log and affidavits show all three are communications among Department staff. | Yes; records are internal to the Department. |
| Are Documents 11, 16, and 32 deliberative in nature? | Requester argues records do not reflect deliberations for a particular decision. | Department affidavits describe predecisional discussions guiding future action and timing. | Yes; documents are deliberative and pertain to contemplated courses of action. |
| Do Documents 16 and 32 contain purely factual material that can be severed? | Requester asserts no purely factual material is present or severable. | Affidavits suggest 16 and 32 may include non-deliberative facts; severability uncertain. | Remanded for in camera review to determine severability. |
| If severable factual material exists, must it be disclosed and remaining deliberative content redacted? | Requester would have records disclosed to the extent non-deliberative. | DAA may redact non-exempt portions under RTKL § 706 if severable. | Remand directs OOR to determine severability and redact accordingly if applicable. |
Key Cases Cited
- Scolforo, Office of Governor v. Scolforo, 65 A.3d 1095 (Pa.Cmwlth.2013) (establishes standards for predecisional deliberation exemptions and affidavits)
- Carey v. Department of Corrections, 61 A.3d 367 (Pa.Cmwlth.2013) (deliberative process standard; facts vs. deliberative content separation)
- Vartan, Commonwealth v., 733 A.2d 1258 (Pa.1999) (deliberative process privilege framework; purely factual material severability discussed)
- Mink, Environmental Protection Agency v., 410 U.S. 73 (Supreme Court 1973) (FOIA Exemption 5; constitutional backdrop for deliberative process)
- Mead Data Central, Inc. v. Department of Air Force, 566 F.2d 242 (D.C. Cir.1977) (deliberative materials and severability framework for factual content)
- Bowling v. Office of Open Records (Bowling II), 621 Pa. 133, 75 A.3d 453 (Pa. 2013) (RTKL exemptions narrowly construed; de novo review standard)