PA Dept. of Ed. v. R. Bagwell PSU v. R. Bagwell
131 A.3d 638
| Pa. Commw. Ct. | 2016Background
- Requester sought communications between former PA Secretary of Education Ronald Tomalis and PSU board members/officials relating to the Sandusky matter; Department of Education (Department) located ~644 pages.
- Department invoked a 30-day extension under RTKL §902 and, on the last day, demanded prepayment of $338.88 for duplication/postage before processing or completing legal review.
- Requester appealed to OOR; OOR found the Department waived its prepayment right by not including a fee estimate in its initial five-day notice and ordered disclosure (with limited redactions).
- Department and PSU appealed to the Commonwealth Court. PSU sought to protect attorney-client and work-product materials and requested party status/standing.
- The Department had not completed review of the records or produced a privilege log; it submitted a conclusory affidavit by Tomalis asserting privileges and exemptions.
Issues
| Issue | Plaintiff's Argument (Bagwell) | Defendant's Argument (Dept./PSU) | Held |
|---|---|---|---|
| Standing / right to appeal by PSU | PSU should not be allowed a direct appeal (only requester or agency may appeal) | PSU claimed due-process/right to appeal to protect attorney-client/work-product privileges | PSU has standing as privilege-holder to appeal; may participate to protect privileges, and Court has jurisdiction |
| Timing of prepayment demand under RTKL §§902(b) & 1307(h) | Fee estimate and prepayment demand must be included in the five-day extension notice; failure waives prepayment right | No statutory requirement to include fee estimate within five days; prepayment may be demanded later | Agency need not include a fee estimate in the initial five-day notice, but may not demand prepayment before it has reviewed responsive records and decided which will be disclosed |
| Use of prepayment to avoid processing / interim responses | Department’s late prepayment demand effectively deemed an improper interim response / constructive denial | Department argued it invoked extension and could demand prepayment when estimate known | Agency may not issue serial interim responses or reserve denial grounds past the 30-day extension; must raise exemptions by end of extension; Department here improperly sought prepayment without reviewing records |
| Sufficiency of evidence for privileges and RTKL exceptions | OOR correctly ordered disclosure because Department failed to prove privileges/exceptions | Dept./PSU argued Tomalis affidavit and PSU submissions established attorney-client, work-product, deliberative and investigatory protections | Tomalis affidavit was conclusory and insufficient; Department did not meet burden for privileges/exceptions; however, remand ordered to allow PSU meaningful opportunity to present privilege evidence after Department identifies responsive documents |
| Bifurcation of appeals (decide prepayment first) | N/A | Dept./PSU urged OOR to bifurcate to resolve prepayment before merits and allow further evidence later | Bifurcation rejected: RTKL timeframes and OOR procedures require raising all defenses in initial proceeding; OOR correctly declined to bifurcate |
Key Cases Cited
- Pa. State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth. 2014) (RTKL remedial purpose and narrow construction of exceptions)
- Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013) (statutory construction of RTKL terms and treating “shall” as context-dependent)
- Bagwell v. Dep’t of Educ., 114 A.3d 1113 (Pa. Cmwlth. 2015) (standards for attorney-client and work-product privileges under RTKL)
- Dep’t of Transp. v. Drack, 42 A.3d 355 (Pa. Cmwlth. 2012) (agency must state all denial grounds within 30-day extension response)
- Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa. Cmwlth. 2010) (fee-estimate sufficiency and methodology for prepayment requests)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (importance and preservation of attorney-client privilege)