Township of Worcester v. Office of Open Records
129 A.3d 44
| Pa. Commw. Ct. | 2016Background
- In June 2014 Dr. James Mollick requested multiple Township of Worcester records under the RTKL; the Township denied one request (emails) claiming attorney-client, work-product, and the predecisional deliberative exemption.
- Mollick appealed to the Office of Open Records (OOR). OOR issued an interlocutory order directing the Township to produce the withheld records for in camera inspection and to provide an in camera inspection index (privilege log).
- The Township filed for interlocutory review in the Court of Common Pleas of Montgomery County, which quashed OOR’s order compelling production and denied OOR’s motion to quash the appeal.
- OOR appealed to the Commonwealth Court. The Commonwealth Court affirmed that the trial court had jurisdiction (the OOR order was an appealable collateral order) but reversed the trial court’s decision to vacate OOR’s in camera/privilege-log order.
- The Commonwealth Court held OOR’s appeals officer acted within his statutory and case-law authority to request the records and an index for in camera inspection, particularly because the Township’s verified memorandum inadequately developed the predecisional-deliberative exemption element (that the material be deliberative in character).
Issues
| Issue | Plaintiff's Argument (Township) | Defendant's Argument (OOR) | Held |
|---|---|---|---|
| Whether OOR’s interlocutory order compelling production for in camera review is an appealable collateral order | The order is not severable from the merits, not a matter of broad public importance, and the Township’s rights would not be irreparably lost if review waited for final judgment | Immediate review is unnecessary; the order is intertwined with disclosure merits and most cases will not require in camera review | Affirmed: order is a collateral order under Pa. R.A.P. 313(b); trial court had jurisdiction |
| Whether OOR had authority to require production of records and a privilege log for in camera inspection | OOR abused discretion; the Township provided a verified, non-conclusory memorandum supporting denial, so in camera review and a privilege log were unwarranted here | Appeals officers have broad discretion to develop the evidentiary record and may order in camera review/privilege logs when needed to evaluate privilege/exemptions | Reversed: OOR acted within its authority; appeals officer permissibly ordered production and an inspection index |
| Whether the Township adequately invoked the predecisional deliberative exception | The Township argued its verified memorandum demonstrated the exemption | OOR argued the memorandum was insufficiently specific on the required elements (particularly that the material is "deliberative") | The Commonwealth Court agreed with OOR: the Township’s memorandum failed to develop the deliberative-element; in camera review or a privilege log was appropriate |
Key Cases Cited
- Office of Open Records v. Center Twp., 95 A.3d 354 (Pa. Cmwlth. 2014) (OOR may conduct in camera review to develop the record and assess privilege claims)
- Bagwell v. Pa. Dep’t of Educ., 114 A.3d 1113 (Pa. Cmwlth. 2015) (OOR appeals officers must develop an adequate evidentiary record; deference to administrative factfinding)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (broad procedural discretion afforded appeals officers under RTKL)
- Pridgen v. Parker Hannifin Corp., 905 A.3d 422 (Pa. 2006) (collateral-order separability analysis; some interrelationship with merits is tolerable)
- Geniviva v. Frisk, 725 A.2d 1209 (Pa. 1999) (second-prong collateral order test: issue must implicate rights deeply rooted in public policy)
- Scolforo v. Office of Open Records, 65 A.3d 1095 (Pa. Cmwlth. 2013) (conclusory affidavits insufficient to establish exemptions under RTKL)
- Carey v. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013) (only confidential deliberations reflecting opinions/recommendations are protected)
- McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (in camera review may be used to distinguish factual from deliberative material)
- Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth. 2013) (review of privilege logs can assist in determining exemption claims)