Smith Ex Rel. Smith Butz, LLC v. Pennsylvania Department of Environmental Protection
161 A.3d 1049
| Pa. Commw. Ct. | 2017Background
- Kendra Smith (on behalf of Smith Butz, LLC) requested from the Pennsylvania Department of Environmental Protection (DEP) statewide records related to ProTechnics (Core Laboratories), a company using radioactive tracers at well sites.
- The DEP conducted a multi-regional search, invoked a 30‑day extension, and then partially denied the request; OOR review followed with ProTechnics participating as a third party.
- DEP withheld records on multiple grounds: RPA/regulatory protection for investigation reports, attorney-client/work-product privilege, RTKL exemptions (public-safety, trade secrets/confidential proprietary information, notes/working papers, predecisional deliberations, noncriminal investigations), and redactions for personal identifying information.
- OOR issued a final determination largely sustaining DEP’s withholdings but ordered disclosure of limited license and well‑pad information; the DEP and ProTechnics defended broader nondisclosure.
- On appeal to this Court, the panel reviewed de novo and affirmed most OOR holdings, but held that investigative reports pertaining to well sites are public under the RPA regulation’s exception for reports "pertaining to safety and health in industrial plants," construing “industrial plant” to include well sites unless trade secrets/proprietary info is present.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (DEP / ProTechnics) | Held |
|---|---|---|---|
| Whether RPA/regulation permits withholding of DEP investigative reports for well sites | Reports pertain to safety and therefore must be disclosed under the regulation exception | A well site is not an "industrial plant," so investigation reports may be withheld | Court: "Industrial plant" includes well sites; investigative reports about well sites are public unless trade secrets/confidential info requires redaction |
| Whether DEP established attorney-client privilege / work product over communications and documents | Withholdings not justified; records are public | DEP provided affidavits showing legal advice, identified attorneys, and that communications were confidential and not waived | Court: DEP met its burden; privilege/work-product protection applies to those records |
| Whether disclosure of location/quantity of radioactive material is exempt for public-safety reasons (RTKL §§708(b)(2),(3)) | Such information should be public | DEP showed credible security risks (GAO data, terrorism/dirty bomb concerns) and reasonable likelihood of jeopardy | Court: DEP met its burden; records revealing current location/quantity may be withheld |
| Whether ProTechnics’ FRAs, Calif. correspondence, raw data/methodology are trade secrets / confidential proprietary info (RTKL §708(b)(11)) | Requester: Info already public (patent, testimony, article) so no protection | ProTechnics submitted affidavit showing secrecy measures, competitive value, limited disclosure, and harm from release | Court: Affidavit sufficient; these materials may be withheld as trade secrets/confidential proprietary information |
| Whether certain handwritten notes/working papers qualify for RTKL §708(b)(12) | Requester: Some log descriptions show official actions, not personal notes | DEP provided affidavit that notes were personal, used solely to refresh recollection, not shared, and created in personal discretion | Court: DEP met burden; notes/working papers exemption applies to identified records |
| Whether internal predecisional deliberations exemption applies (RTKL §708(b)(10)) | Requester: Some records involve third parties so not internal | DEP produced affidavits showing internal deliberative drafts/emails prior to decision | Court: DEP met burden for internal, deliberative, predecisional records; exemption applies where internal only |
Key Cases Cited
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. Cmwlth. 2013) (standard of review and scope in RTKL appeals)
- McGowan v. Department of Environmental Protection, 103 A.3d 374 (Pa. Cmwlth. 2014) (presumption that agency records are public and use of affidavits/privilege logs to establish exemptions)
- Bagwell v. Department of Education, 103 A.3d 409 (Pa. Cmwlth. 2014) (elements to establish attorney-client privilege)
- Pennsylvania Department of Education v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015) (discussion distinguishing attorney-client privilege and work-product doctrine)
- Carey v. Department of Corrections, 61 A.3d 367 (Pa. Cmwlth. 2013) (test for RTKL public-safety exemption and predecisional deliberations)
- Heavens v. Department of Environmental Protection, 65 A.3d 1069 (Pa. Cmwlth. 2013) (testimonial affidavits as evidence for claimed exemptions)
- Levy v. Senate of Pennsylvania, 94 A.3d 436 (Pa. Cmwlth. 2014) (work-product doctrine scope)