Office of the Governor v. R.H. Davis, Jr.
122 A.3d 1185
| Pa. Commw. Ct. | 2015Background
- Requester sought emails and other records (June 1, 2013–present) underlying March 11 and March 18 letters urging the PA Game Commission not to consider a specific candidate for Executive Director.
- The Governor’s Office partially denied the request, invoking attorney-client privilege, the RTKL predecisional deliberative exception (Section 708(b)(10)), and personal information exemptions.
- OOR reviewed the records in camera and issued a final determination: it upheld some redactions as predecisional deliberative material and personal data, but ordered disclosure of Bates-labeled OG 070–133 and denied privilege protection for certain records without identifying them by Bates label.
- The Governor’s Office appealed, arguing OOR misallocated the burden on waiver of the attorney-client privilege and misconstrued the “internal” element of the deliberative exception; it sought leave to supplement the record but was denied.
- The Commonwealth Court vacated and remanded: it held OOR misapplied the law on privilege waiver (invoking Bagwell), misinterpreted the “internal” element (too narrow), and failed to explain which Bates-labeled records corresponded to each disclosure rationale.
Issues
| Issue | Plaintiff's Argument (Requester) | Defendant's Argument (Governor) | Held |
|---|---|---|---|
| 1. Allocation of burden on attorney‑client privilege waiver | Gov’t must prove privilege was not waived; Requester says agency bears burden to show non‑waiver | Gov’t contends OOR improperly placed burden of proving non‑waiver on agency and that waiver should not be presumed | Court held agency establishes first three privilege elements; if so, requester must prove waiver; remanded for OOR to apply Bagwell correctly |
| 2. Whether communications qualify as legal advice (third prong) | Some records are not legal communications and thus not privileged | Gov’t says many records are legal communications protected by privilege | Court directed OOR to reassess specific records in camera to determine whether communications were for legal advice and thus privileged |
| 3. Predecisional deliberative exception — meaning of “internal” | Records from non‑agency authors are not necessarily internal; Requester argued wider circulation defeats exception | Gov’t argued OOR’s interpretation was too narrow and interagency deliberations qualify as internal | Court held OOR erred to the extent it treated origin outside the agency as dispositive; remanded for proper application of internal/deliberative/predecisional elements |
| 4. Sufficiency of OOR’s explanations and record for appellate review | OOR’s final determination must identify which Bates‑labeled records correspond to each disclosure rationale | Gov’t relied on in camera records and an index; argued affidavit not required | Court held OOR failed to tie reasons to specific Bates labels (OG 070–133), making review impossible; remanded and required OOR to explain exemption decisions by Bates‑label using existing record (with possible supplemental index if parties agree) |
Key Cases Cited
- Bagwell v. Dep’t of Educ., 103 A.3d 409 (Pa. Cmwlth. 2014) (elements and allocation of burden for attorney‑client privilege)
- Bagwell v. Dep’t of Educ., 114 A.3d 1113 (Pa. Cmwlth. 2015) (procedural guidance on certified record and remand)
- Pa. State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth. 2014) (RTKL is remedial and exemptions construed narrowly)
- Carey v. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013) (elements of predecisional deliberative exception)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (privilege protects legal — not business — advice)
- Pa. State Police v. Office of Open Records (Gilliland), 5 A.3d 473 (Pa. Cmwlth. 2010) (in camera review can suffice to assess exemption)
- Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013) (in camera review of legal invoices and privilege assessment)