177 A.3d 438
Pa. Commw. Ct.2018Background
- Sunrise (via David Hommrich) requested, under the RTKL, emails between PUC counsel and FirstEnergy about Sunrise Energy, LLC v. First Energy Corp.; PUC identified 64 responsive emails and denied access claiming attorney-work-product and attorney-client privileges.
- Sunrise appealed to the Office of Open Records (OOR); the appeal focused on whether the attorney-work-product doctrine protected the emails.
- OOR found Sunrise had standing, that some emails were work-product but the privilege was waived, and ordered disclosure; PUC appealed to Commonwealth Court.
- PUC argued the emails were protected work-product (and, if shared, protected by a common-interest exception), that disclosure intruded on Supreme Court authority over lawyer confidentiality, and that Sunrise lacked standing.
- Commonwealth Court concluded the OOR did not review each email to identify which entity (PUC or FirstEnergy) held any work-product privilege, and remanded for in camera review, FirstEnergy notice, and a privilege log; it rejected PUC’s Article V challenge and found Hommrich had standing.
Issues
| Issue | Plaintiff's Argument (Sunrise) | Defendant's Argument (PUC) | Held |
|---|---|---|---|
| Whether emails are attorney-work-product exempt from RTKL | Emails aren’t work-product because PUC was not a party and some emails originated with FirstEnergy | Emails reflect PUC attorneys’ legal/factual analysis prepared in anticipation of litigation | Remanded: OOR must review emails individually to determine whether each is work-product of PUC or FirstEnergy |
| Whether sharing emails with FirstEnergy waived work-product protection | Sharing with non-party FirstEnergy waived privilege | PUC shared a common legal interest with FirstEnergy (amicus role), so common-interest doctrine prevents waiver | Not decided — resolution dependent on in-camera review and whether privilege exists for each email |
| Whether OOR order infringes Supreme Court authority over attorney regulation (Art. V, §10(c)) | N/A (PUC raised this) | OOR’s disclosure order usurps Supreme Court authority/confidentiality rules | Rejected: prior precedent limits Silver to settlement/confidentiality-rule conflicts; OOR may determine privilege under RTKL |
| Whether requester (Hommrich/Sunrise) had standing to appeal | Hommrich acted on behalf of Sunrise; clarified on appeal | Hommrich filed in individual capacity and cannot bind Sunrise | Held: Hommrich had standing; initial omission was not fatal |
Key Cases Cited
- SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012) (RTKL’s objective to provide public access to government information)
- Bagwell v. Pennsylvania Department of Education, 103 A.3d 409 (Pa. Cmwlth. 2014) (work-product protection under RTKL and waiver principles)
- Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119 (Pa. Cmwlth. 2017) (agency’s burden to prove privilege with credible affidavits)
- Pennsylvania Department of Education v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (sufficiency of affidavits and need for particularized description/privilege log)
- LaValle v. Office of General Counsel, 769 A.2d 449 (Pa. 2001) (materials constituting attorney-work-product are not subject to compulsory RTKL disclosure)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (work-product doctrine protects attorneys’ mental impressions and materials prepared in anticipation of litigation)
- City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012) (RTKL may conflict with ethics-based confidentiality rule for settlement communications)
- Office of Open Records v. Center Township, 95 A.3d 354 (Pa. Cmwlth. 2014) (Silver limited to settlement/Rule 1.6 conflicts; OOR has jurisdiction to assess privilege under RTKL)
- In re Condemnation by City of Philadelphia in 16.2626 Acre Area, 981 A.2d 391 (Pa. Cmwlth. 2009) (common-interest/joint-defense privilege elements)
- DeFazio v. Civil Service Commission of Allegheny County, 756 A.2d 1103 (Pa. 2000) (standing requires direct and substantial interest)