W. McKelvey, PennLive, and The Patriot News v. Office of Attorney General
172 A.3d 122
| Pa. Commw. Ct. | 2017Background
- In Dec. 2015 the Office of Attorney General (OAG) hired Buckley Sandler LLP to investigate crimes relating to use of the Commonwealth email system and to prepare a report; a draft was submitted May 2016.
- On Aug. 31, 2016, petitioners (McKelvey, PennLive, Patriot-News) requested “any report(s) generated by [Buckley Sandler] as a result of its review of emails turned over by the OAG.”
- The OAG denied disclosure, stating the report was not final and asserting attorney-client and work-product privileges plus RTKL exemptions for predecisional deliberations and noncriminal investigations.
- Petitioners appealed to the OAG Appeals Officer; the Appeals Officer conducted an in-camera review and affirmed withholding in full on Oct. 31, 2016.
- The report was publicly released in redacted, final form on Nov. 22, 2016 with appended emails; petitioners then contested whether their Aug. 31, 2016 request encompassed those appendices.
- The Commonwealth Court affirmed the Appeals Officer on the alternative ground that the August 31 request covers only records in existence and in the agency’s possession at the time of the request, and the appendices were not part of the record then.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the RTKL request encompassed report appendices added after the request | Petitioners: request for “any report(s)” includes the report as ultimately finalized, including appendices | OAG: RTKL covers only records in existence and in agency possession at time of request; appendices did not exist then | Court: Request limited to records existing at time of request; appendices not encompassed; affirmed |
| Whether agency must disclose draft/unfinalized report | Petitioners: report in OAG possession presumed public; withholding improper | OAG: agency need not create or disclose records not in final form; drafts may be exempt | Court: Agency not required to create or disclose records that did not exist in final form at request time; Moore controls |
| Applicability of privileges and RTKL exemptions (attorney-client, work product, predecisional deliberation, noncriminal investigation) | Petitioners: privileges/exemptions not proven; factual email content should be public | OAG: report and attachments fall within privileges/exemptions | Court: Did not reach merits because alternative ground disposed case; Appeals Officer had relied on those exemptions and was affirmed on other grounds |
| Whether petitioner may expand request on appeal | Petitioners: should be able to obtain final report produced later | OAG: requester cannot expand or modify request on appeal; RTKL confines to existing records | Court: Requester may not expand request on appeal; affirmed limitation |
Key Cases Cited
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (under RTKL, agency must disclose only records in existence and in its possession at time of request)
- Smith Butz, LLC v. Dep’t of Envtl. Protection, 142 A.3d 941 (Pa. Cmwlth. 2016) (requester may not expand or modify RTKL request on appeal)
- Dep’t of Corrections v. Disability Rights Network of Pa., 35 A.3d 830 (Pa. Cmwlth. 2012) (limitations on creating or compiling records in RTKL responses)
- Paint Twp. v. Clark, 109 A.3d 796 (Pa. Cmwlth. 2015) (agency need not produce records that do not exist in any ascertainable format)
- Pa. Pub. Util. Comm’n v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012) (scope and standard of appellate review under RTKL)
- Philadelphia Fed’n of Teachers v. Sch. Dist. of Phila., 109 A.3d 298 (Pa. Cmwlth. 2015) (appellate court may affirm on alternative grounds)
- Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (appellate fact-finding and remand principles under RTKL)