208 A.3d 178
Pa. Commw. Ct.2019Background
- Nolan Finnerty (Requester) sought records under the RTKL about potential privatization/monetization of the Chester Water Authority, including documents exchanged among Department of Community and Economic Development (Department), EConsult (Act 47 Coordinator), Fairmount (financial consultant), and McNees (legal counsel).
- The Department withheld portions of an EConsult report and an email attachment as internal, predecisional deliberations; some records were initially claimed as attorney-client/work product but later disclosed.
- EConsult contracted with the Department as the Act 47 Coordinator; EConsult subcontracted work to McNees and Fairmount and the Contract and budget contemplated payment to those subcontractors through EConsult.
- OOR partially affirmed the Department’s withholding, reasoning the records were "internal to the Department" because of the chain of contractual relationships among the Department, EConsult, and its subcontractors.
- Requester appealed to this Court, arguing the RTKL exception applies only to records internal to an agency or among governmental agencies and not to communications with outside contractors or subcontractors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether communications shared with outside contractors/subcontractors are "internal to the agency" under RTKL §708(b)(10)(i) | Finnerty: Records shared with non-agency contractors (EConsult, McNees, Fairmount) are not "internal" and must be disclosed; exceptions should be narrowly read | Department: Contracts created an integrated, agency-directed team; deliberative communications exchanged pursuant to those contracts are internal and exempt | Held: Affirmed. Communications exchanged among the Department, its contractor (EConsult) and essential subcontractors (McNees, Fairmount) were "internal to the agency" and exempt as predecisional deliberations |
| Whether withholding claims based on attorney-client privilege and work product remain at issue | Finnerty challenged the privilege assertions | Department later disclosed the previously withheld privileged records to Requester, and both counsel confirmed disclosure at oral argument | Held: Moot. Privilege/work-product challenges dismissed as moot because records were disclosed |
Key Cases Cited
- McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth.) (describing internal, deliberative, predecisional element under RTKL)
- Smith ex rel. Smith Butz, LLC v. Pa. Dep’t of Envtl. Prot., 161 A.3d 1049 (Pa. Cmwlth.) (records considered internal when maintained within one agency or among governmental agencies)
- Kaplin v. Lower Merion Twp., 19 A.3d 1209 (Pa. Cmwlth.) (discussion of internal records under RTKL)
- Office of the Governor v. Davis, 122 A.3d 1185 (Pa. Cmwlth.) (RTKL remedial purpose; exceptions construed narrowly)
- Nat’l Inst. of Military Justice v. U.S. Dep’t of Justice, 512 F.3d 677 (D.C. Cir.) (extending deliberative-process protection to outside consultants whose advice was solicited by the agency)
- Joe v. Prison Health Servs., Inc., 782 A.2d 24 (Pa. Cmwlth.) (explaining public benefit of deliberative-process exception)
- Pennsylvanians for Union Reform v. Pa. Office of Admin., 129 A.3d 1246 (Pa. Cmwlth.) (persuasive value of OOR determinations)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa.) (standard of review for OOR final determinations)
- Pa. State Police v. Muller, 124 A.3d 761 (Pa. Cmwlth.) (scope of appellate review)