LaValle v. OFFICE OF GEN. COUNSEL OF COM.

namely, in its preliminary objections, forth another basis 1004A, complaint E.W. failed to file a accordance with Rule pleas court for of this disposition we remand the common remaining proceedings claim and for further consistent with opinion. this relinquished.

Jurisdiction A2d 449 Kasunic, Individually A. Gerald J. LaVALLE Richard Capacities in their as Elected Members of the Senate of Assembly Pennsylvania, Appellants, the General OFFICE OF GENERAL COUNSEL OF

THE COMMONWEALTH

Pennsylvania, Appellee. Supreme Pennsylvania. Court 26, 2000.

Submitted Oct. April Decided Kasunic, Foreman, for Elected Harrisburg, LaValle & Jeff of Pa. Senate Members Assn. Gottlieb, Newspaper for Amicus-PA

Brian P. S.i,Potter, Grimaldi, Stoner, Anthony W. Roger E. Sandra Sheehan, Harrisburg, Penn- for Commonwealth M. James sylvania. CAPPY, FLAHERTY, C.J., ZAPPALA, and

Before: SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN OPINION SAYLOR, Justice. to a document request a appeal

This concerns Act, lodged with the Office Right Know Pennsylvania two of the General members Counsel General Assembly. December, 1997, February, the Honorable

In Pennsylvania, LaValle, a member the Senate J. Gerald Counsel to the Office of General several letters directed (“OGC”) seeking prepared a that had been access to LLP, Young accounting consultant to Com- Ernst & (“PennDOT”). monwealth, Transportation Department litigation Young with had been retained connection by Envirotest Part- against the commenced Commonwealth (“Envirotest”). litigation, alleged had In this Envirotest ners large-scale, centralized automotive by abandoning government testing PennDOT breached program, emissions pro- of such for Envirotest’s administration providing contract action, ulti- of this the Commonwealth gram; in settlement million Envirotest. mately paid had in excess $145 no his response prior corre- Apparently having received 18,1998, February and several on Senator LaValle spondence, members, (including Honorable Rich- other Senate Kasunic) ard A. forwarded a stating letter OGC an inten- tion to commence a formal proceeding pursuant Pennsylva- Right nia’s to Know Act.1 provided OGC then the Senators with a request, written refusal of their explaining that the Young report prepared was to assist it and PennDOT in assessing and defending the litigation, Envirotest and that report was not an audit. Providing no description further of the contents of report,2 took position OGC protected document was under the work doctrine and therefore was not within categories subject to mandatory public access under the Act. Alternatively, OGC indicated that if the document was within general scope public Act, records under the it was within a statutory “inves- tigations” exception to requirement of disclosure. appeal,

On in a opinion, divided the Commonwealth Court affirmed OGC’s deny decision to request Senators’ for disclosure to the Act. See LaValle v. Office of Counsel, General (Pa.Cmwlth.1999). 737 A.2d 330 major- ity explained provides that the Act public for certain “public records,”3 which are divided into two definitional categories: an category;4 and a accounts/vouchers/contracts category,5 the former of which minutes/orders/decisions 21, 1957, (as amended, 1. Act of 66.1-66.4)(the June P.L. 390 §§ 65 P.S. "Act"). 2. OGC did indicate that "contains no information that necessary to determine taxpayers the cost to the in total [of the settlement], regard Envirotest or with payment." to the final This was response contrary Senators' assertion to sup- and was ported by and, the fact that the face amount of the settlement corre- spondingly, taxpayers, the cost was a matter of record. Specifically, 3. Section 2 provides of the Act generally "[e]very times, agency record of an shall at open reasonable be inspection by examination and any citizen of the Commonwealth of Pennsylvania.” § 65 P.S. 66.2. Court, 4. As noted category Commonwealth this “[a]ny consists of account, dealing voucher or receipt contract with the or disbursement agency acquisition, funds an or its disposal use or of services or of materials, supplies, equipment 66.1(2). or property.” other § 65 P.S. minute, category “any This consists of order or decision fixing personal immunities, property rights, or privileges, duties or obligations any person group persons.” 66.1(2). or § 65 P.S. pertinent question the court. The directly before most this majority then reviewed Court’s Commonwealth Court Int’l, Roofing in Co. Sheet Metal Workers’ Sapp decision 105, por- (1998)(plurality opinion), 713 A.2d 627 552 Pa. from North News Record v. of the discussion Hills tions (1999). McCandless, 51, majority 1037 The 555 Pa. that, Roofing, plurality in a of this Court conclud- Sapp noted possession in the private payroll ed that a contractor’s records district, of which records were related to work a school district, performed pursuant to a contract with the constituted public catego- records within accounts/vouchers/contracts following ry.6 quoted then from McCandless majority Roofing: of Sapp assessment in in is the Sapp Roofing Court’s decision

“Implicit category conclusion that the accounts/vouchers/contracts beyond public range of those records reaches some records accounts, or on their constitute actual vouchers which face Nevertheless, from Sapp Roofing it is clear contracts. record, the material at issue must bear public to constitute a accounts, fiscally related vouchers a sufficient connection or contracts.” McCandless, 55,

LaValle, (quoting 737 at 332 555 Pa. at A.2d 1039). majority 722 A.2d at The Commonwealth ob- Court McCandless, provid- Roofing, that as reflected Sapp served expansive interpretation ed a more the accounts/vouch- category public prior records than did its ers/contracts it opinions, opportunity specifically took the therefore LaValle, prior 737 at 332 precedent. overrule its A.2d 343, Budget, Pa.Cmwlth. (overruling Butera v. 29 Office of (1977)). 370 1248 A.2d

Nevertheless, that majority Young noted comport prior interpretation with its would not McCandless, 2, actuality, noted in 555 Pa. at 55 n. 722 A.2d at In 2, majority participating Sapp Roofing n. of the five Justices 1038 payroll were records determined records Castille, by opinion, joined Act. The lead authored Mr. Justice Flaherty, Zappala and Mr. Justice authored a concur- Mr. Chief Justice Roofing, ring opinion agreeing Sapp with this central conclusion. See 112-13, J., (Zappala, concurring). at 713 A.2d at 552 Pa. it category, since did not reflect accounts/vouchers/contracts Commonwealth, any actual disbursement funds but express purpose determining was commissioned for the Because, however, damages. extent of Envirotest’s this Court had indicated that category the accounts/vouchers/contracts range beyond “reaches some those which on their accounts, contracts,” face constitute actual vouchers or McCandless, 555 Pa. at at A.2d the Common- majority wealth Court report might stated nonethe- less regard, constitute record under the Act. In this majority noted that Young report “the Ernst & was an audit7 of the materials submitted to the Commonwealth contract[;][i]t requesting payment Envirotest breach was, therefore, ways private some similar to the contrac- LaValle, payroll tor’s records at issue in Sapp Roofing.” however, majority, A.2d at 332. engaged The in no further examination of the concerning relationship record between report fiscally-related and accounts.

Instead, majority effectively the Commonwealth Court pre- separate scribed a prerequisite qualification to of materials as “public records” which it namely, derived from Sapp Roofing, requirement perfor- the records be essential to the mandatory of a statutory duty. majority mance reasoned: regulations In Sapp Roofing, implementing Prevailing Wage required Act wages to ensure that all due to by workers the contractor paid, were and to withhold the unpaid amount of wages from disbursements to the contrac- Thus, private tor. contractor’s records an “essen- were decision, component” tial agency’s mandatory since a statutory duty could performed only be after a review of case, present records. In Young those the Ernst & audit was not required by regulation, statute or and the Office of obliged any way General Counsel was not to act in upon Accordingly, audit, the audit. we conclude that the tangentially relating while by disbursements the Com- below, further As discussed see note the Commonwealth infra report Court’s characterization of the anas "audit” contradicts OGC's representation in its report denial letter to the effect that the is "not (emphasis original). audit” of the decision monwealth, component” an “essential was not and, such, “public is not a record” pay Envirotest Act. Right-to-Know under the LaValle, at 333. 737 A.2d Judge Kelley, joined dissenting opinion, concurring

In a Friedman, disagreed with the conclusion by Judge Act. was not a record under the Young report J., LaValle, concurring and (Kelley, at 333-35 admittedly relied dissenting). Judge Kelley stated OGC dam- extent of Envirotest’s upon report to determine the ... effect, justification was a for “the ages plus million pay approximately Envirotest the decision $145 support In of this funds.” Id. at 333. from interest Young report conclusion, Kelley that the Ernst & Judge noted legislators addressing inqui- referenced various had been In for Envirotest settlement. concerning the basis ries circumstances, Kelley found it clear that Judge these pay component” of the decision report was an “essential Further, Judge Kelley stated: Envirotest. of disclosure and the responsibility is an inherent

There the branches when duty cooperation absolute between Assembly any of the General inquiry is made member justification expenditure for the respect obtaining with made, inquiry is it is public funds. When such an to occur. The Office General mandatory for disclosure Branch, Counsel, constitutionally obligated Executive any justification the basis of the implication to disclose Assembly. from requested financial amounts the General Envirotest, public contract with Notwithstanding separate a requested for part justification is a of the the report the information provided must to the amount. This essential be body authorizing expenditure Assembly as the the General Otherwise, by withholding justifying public funds. branch knowledge from of the other which reports the money, permit- would be necessity must authorize such we partial ignorance in or when ting one branch to act total say representa- would our voting which needless to subvert government. form of tive

LaValle, J., 737 A.2d at (Kelley, concurring and dissent- ing).

We appeal allowed to determine whether the Ernst & Young report is a public record under the Act. matter,

As a requirement, threshold we review the prescribed by majority, the Commonwealth Court that a docu ment must contain performance information essential to the mandatory, a statutory duty in qualify order public as a Act, record pursuant well as the corresponding conclusion that the Ernst Young report & a public not record, since the Senators failed to identify requisite mandatory duty in vested PennDOT could performed which be only upon review of report. Although the majority re ferred to Sapp Roofing developing requirement this of a mandate, Sapp Roofing’s opinion imposed lead no such condi prerequisite tion as a qualification public aas record. To contrary, opinion the lead quickly concluded that payroll public records at Act, issue were records under the they because a evidenced governmental disbursement entity. Sapp See Roofing, 552 Pa. at 713 A.2d at 629. To opinion the extent that lead considered submission of payroll records furtherance the Commonwealth’s mandatory duty payment to ensure wages workmens’ contractors, its this proceeded discussion not anas assess ment of public records, whether the documents were but rather, component as a separate, inquiry elemental into whether the agency.” documents were records “of the See 65 § 66.2 (establishing P.S. right respect with added)). an agency” (emphasis “of generally Sapp Roofing, 552 Pa. at 713 A.2d at 629 (noting Act, inspec to be available for tion, records must be both public records and records of an agency).8 Nor did Mr. Zappala, Justice in his concurring payroll 8. Whether the Sapp Roofing govern- records at issue in were ment obviously they records at all was question because had been prepared by private case, Significantly, present contractor. in the Young report OGC does not contest that the Ernst & ais record "of so, agency,” appear nor would credibly it it could do as the apparently Therefore, paid commissioned and PennDOT. of support a of a mandate upon requirement opinion, rely records; public the records were payroll that his determination the opinion emphasized indeed, contrary, concurring to the govern- a mandatory for requirement view that there no public to the its records payroll to submit ment contractor 112-13, A.2d at 630- Pa. at body. Sapp Roofing, 552 J., concurring). (Zappala, of this noted, fashioning Court’s As Commonwealth by its observation preceded requirement of a mandate to the ac- by this Court afforded that definition is broad- category public of records counts/vouchers/contracts Commonwealth Court. previously ascribed than that er represent requirement may appears that It thus falling of within the to narrow the class records court’s effort facially imple- category, while accounts/vouchers/contracts by this Court. Certain- interpretation prescribed menting the fully did not ly Roofing our McCandless Sapp decisions appropriate boundaries to the definition delineate all hand, Rather, leaving at they dealt with the facts records. overlay existing of the Commonwealth Court’s intact most law, develop- further opportunity well as the for decisional as they might as particular patterns fact ment in the context of shape the defini- But limitations which further arise. See id. principles on must be founded practical application tion’s construction, implementing General statutory the intent and, Assembly terms of the Act where by reference underlying Other policies it. appropriate, to the extent upon Sapp Roofing, its the Commonwealth than reliance its majority explanation requirement no for provided Court Roofing Sapp the Commonwealth Court portion referred presented appeal. majority is in this irrelevant issues by Sapp Roofing's Parenthetically, approach taken lead we note determining agency” opinion to is "of the is not an whether record as, analysis, example, prepared and maintained exclusive generally satisfy ordinary in the course its activities would well, they agency” requirement not whether or would "of the component qualify as of a decision or otherwise constitute an essential opinion the extent the lead record to the Act. To otherwise, opportu- Sapp Roofing suggest be we this can read to take nity clarify it. on reject require- a such terms. We mandate therefore this ment, simply distinguish as the Act not does between manda- tory discretionary governmental prescribing and duties in the records, of access to right appear nor would there to be policy basis a supporting such distinction.9 In of light apparent the of reservations the Commonwealth majority, opportunity upon Court we take this to elaborate our Roofing in Sapp and McCandless. These decisions opinions that Act establish reaches some class of that materials are accounts, vouchers, contracts, minutes, facially not orders or general upon constraint expanded decisions. this class that became relevant McCandless was party seek- government to ing inspect records must establish some close statutory categories connection one of the between and the McCandless, sought. 555 55-58, material Pa. 722 at A.2d imposition at 1039-40. The of a requirement such derives from the Commonwealth previous holding Court’s that category of records covered minutes/orders/decisions subject they 9. Public precisely records are to disclosure because reflect government aspects making Right decision identified in the to accounts, example, Know For Act. in the case of vouchers and con- tracts, subject public inspection they records are to because ] “dealt receipt with agency or disbursement of acquisi- funds or its tion, materials, disposal use supplies, equipment or services or of or 66.1, property,” § required other 65 P.S. not because the to receive or disburse use supplies, the funds or services or but because it in fact made the to so. decision do terms, Parenthetically, we also note even on its own the Common- wealth appear support Court’s determination would to lack factual Although the record. the Commonwealth Court found that PennDOT Envirotest, obligation pay certainly had no agencies Commonwealth general obligation imposed pay bear the rightful, law to their obligations contractual debts—that disputed such are ultimately justify settled does not alone the conclusion that debts are not actually presented owed. The scant record in the Commonwealth provides any concerning Court no basis for conclusion whether and to payment ultimately what extent the settlement tendered the Com- represented monwealth Envirotest obligatory a satisfaction that was (although certainly in nature payment amount the settlement suggests upon predicated Envirotest’s claims were a substantial Nor, foundation). below, 13-14, as further discussed see categories.11 and the accounts/vouchers/contracts context, contentions. turn to the Senators’ With this we Young a report constitutes They assert that the it the basis for pursuant to the Act since formed public record of than expenditure by Assembly the more the General $145 in of the Envirotest public dollars of funds settlement million such, it to or an closely and as related litigation, account, or contract. component” of an voucher “essential argument contesting OGC’s conten- Senators advance no product scope of the work report within the tion public of outside the definition doctrine therefore emphasized frequently has that Gen 10. The Commonwealth Court Assembly "public be the Act’s definition of records" to eral intended liberally salutary purposes. of enactment’s construed in furtherance 776, See, Indus., e.g., Department 722 A.2d Della v. Labor and Franco of 827, (Pa.Cmwlth.1999); of Dunmore, Borough 720 777 A.2d Arduino v. 415, dismissed, (Pa.Cmwlth.1998), 741 195 appeal 559 Pa. A.2d 830 500, Indus., (1999); Department 720 Bargeron A.2d 501- Labor of Corrections, (Pa.Cmwlth.1998); Department 715 Vargo v. A.2d 02 1233, Corrections, (Pa.Cmwlth.1998); Department 702 Weaver v. 1236 370, (Pa.Cmwlth.1997). A.2d explained why a had never it followed 11. The Commonwealth Court strict, plain meaning interpretation of the accounts/vouchers/contracts incrementally interpretation category, sanctioning while broader category, and we have found that the minutes/orders/decisions interpretation unitary which policies that inform the Act favor more statutorily prescribed categories spans two records. See 55, 1039; McCandless, Sapp Roofing, 552 at at 722 A.2d at Pa. Pa. at 713 A.2d regard, only under the Act. In this that Senators note product work is not expressly doctrine included the statuto- ry Act, language apparently thus it suggesting may pertinent not be a argu- consideration. The Senators’ core ment, however, any is that privilege exception claim to or from Commonwealth, since, disclosure has been waived they allege, legislative pertaining record to the authorization of the Envirotest settlement indicates at least some contents were disclosed to selected members of the Assembly. Reflecting Judge Kelley’s General concurring and dissenting opinion, the also emphasize impor- Senators tance of public concerning disclosure the disbursement of funds of magnitude reflected the Envirotest settlement. previously

The Commonwealth Court has indicated reflecting attorney that records product quali work would not fy Act, as records under the see Maleski v. Corporate Co., 36, 45, (1994) Ins. 163 Pa.Cmwlth. Life (citation omitted), and we find this to interpreta be correct tion. product doctrine, The work in Pennsylva embodied 4003.3, nia Rule of Civil protects disclosure, Procedure from alia, inter impressions, “mental opinions conclusions or re specting the value or merit a claim or or respecting defense tactics,” strategy or including of a party’s representative those who is not party’s attorney. Pa.R.C.P. No. 4003.3. In many jurisdictions, arena, the administrative the work effectively doctrine serves as a subset a broader group of principles merely concerned not protecting with processes deliberative litigation, associated with but with insu lating agency administrative processes deliberative generally. See, e.g., Commonwealth ex rel. Judicial System v. Unified Vartan, 390, 399-402, 1258, 557 Pa. 733 A.2d 1263-65 (1999)(plurality opinion)(citing jurisdictions endorsing a deli process berative privilege). protection This supported by policies concerned with facilitation of full and free communica tion and exchange agency in operations practice, and as was following noted passage from Vartan: process The deliberative privilege public, benefits the and not the officials who privilege. assert the purpose The

496 exchange of ideas is to allow the free privilege rec- agencies. privilege government

information within oper- agencies were “forced governmental that if ognizes opinions fishbowl, exchange of ideas and the frank in a ate of administrative decisions quality and the would cease consequently suffer.” would

Id, R. Weaver & J. 400, generally A.2d at 1264. See at 733 Mo. L.Rev. 279 Jones, Privilege, Process The Deliberative (1989). considerations, jurisdic- number upon such Based reflecting deliberative records tions have determined public disclosure requirements from processes are excluded pertinent imposed pursuant be would otherwise which See, City Springs Colorado statutory e.g., provisions. (Colo.1998).12 White, 967 P.2d definitively adopted the delibera This has not Court Vartan, at Pa. at process privilege, tive cf. plurality of a the Court (reflecting the view beyond scope and it is adopted), should be privilege such policies that inform to do so. The present opinion doctrine, however, are as the work privilege as well Act as an aid in determin construction of the pertinent to our right of Notably, prescribing purpose. ing legislative records, Assembly no evinced the General internal, deliberative subject expression of intention scruti making mandatory public agency decision aspects of Indeed, exception or although specific it did not craft a ny. or work reflecting processes deliberative for records exclusion Assembly subjects of delineated the product, the General im to concrete decisional mandatory by reference disclosure decisions, accounts, minutes, orders, vouch namely, plements, Therefore, underlying impres mental and contracts. ers sions, agency decision makers and conclusions opinions under the qualify representatives could their resulting from expansion only pursuant Act to the incremental min- decisions relation Court’s the Commonwealth Indeed, express Act contains an Freedom of Information the federal making. See 5 aspects of decision exception for deliberative 552(b)(5). § U.S.C. category logic and our extension of this utes/orders/decisions category. But materi- to the the accounts/vouchers/contracts decisions, pertinent payroll in such records als at issue simply have not concerned deliberative as- Sapp Roofing, making. light policy In of pects agency decision above, and in absence of considerations referenced some intent, that expression legislative further we decline to infer minutes, orders, right public a to prescribing decisions, accounts, contracts, As- vouchers the General to sembly expose predecisional, meant internal deliberative aspects agency making mandatory public to decision scruti- Thus, ny. we hold that the definition of Act, 66.1, prescribed Right § to Know P.S. does not to apply portions materials or thereof which reflect such aspects. deliberative holding,

Pursuant to this to the extent that Young report Ernst product, & constitutes work or otherwise predecisional aspects reflects deliberative or its PennDOT’s representatives’ making processes, subject decision it is not compulsory public pursuant disclosure Act. The burden of establishing requested material bears characteristics upon party seeking record rests access. See McCandless, Although 555 Pa. at 722 A.2d at 1039. OGC issued what amounts adjudication concluding informal report comprised work that would be outside scope required pursuant disclosure under the Act existing both Commonwealth Court decisions as our well above, reasoning sought there is no evidence that the Senators development concerning further the contents of the Court, from OGC or similar relief the Commonwealth such as a development,13 remand further factual or in camera Act, request reviewing 13. On review of the denial of a under the court just cause. proper must determine whether the denial was for because, Act, § Particularly 66.4. P.S. in the context of the a state agency requested body from which disclosure is functions as both the access, adjudicating request party withholding and the where a requestor specificity has identified material with reasonable and made a may subject colorable claim it contain information to disclosure Act, required provide should be sufficient- ly concerning requested detailed information the contents of docu- be- Finally, present posture appellants in their as review.14 Court, adequacy fail to contest the this the Senators also fore dispute or to OGC’s essential contention of the record reviewing independent court to make an assessment ment to enable a mandatory statutory requirements for disclosure. whether it meets the Cf., Here, White, provided e.g., P.2d OGC scant 967 at 1053-54. Young denying description report & in its letter access. of the Ernst concerning information The absence from the record of sufficient conflicting positions report reflected in the contents of the is further concerning report Court whether the is or OGC and the Commonwealth majority distinguished also not an audit. The Commonwealth Court is Young report only "tangen- Sapp Roofing on the basis Commonwealth,” LaValle, tially see to disbursements relatfed] however, 333; A.2d at there is no factual basis in the record 737 (although support conclusion OGC made an assertion to this effect this letter). may failing provide denial That OGC have erred in its relief, however, explanation, not entitle the Senators to sufficient does challenge adequacy they of such record on where have failed to Co., Sheppard Heritage appellate generally v. Old Mut. Ins. review. See 581, 591, 304, (1980)(observing that the failure to 492 Pa. pursue appeal is as effective a waiver as the failure to an issue on jurisdiction). initially raise the issue in the tribunal of initial Questions concerning availability of in camera review in the appellate capacity in its on review of an informal Commonwealth Court denying adjudication agency pursuant to the Act of a state only policy presently that sound would are not before us. We note appear support availability procedure, where in camera circumstances, appropriate, perhaps, requirement upon and in some its Court, County Superior generally Angeles proper demand. Los Cf. (2000) Cal.Rptr.2d (holding Cal.App.4th 575-76 that an agency inspection required of local records was in connec- in camera request tion with a for access to the California Public Records they protected by Act to determine whether were the enactment’s work county product exemption, where the claimed that the documents had anticipation litigation). potential applicability prepared been importance preserving question of such remedies illustrates agency raising adequacy specifically in the and it on of the of the record will, expect appellate review. We that the Commonwealth Court in the cases, appropriate develop first instance standards to ensure that agencies sufficiently concerning provide detailed state information meaningful requested permit appellate contents of records to review- effectively accomplished question placed where the This can be most is court, controversy provided before the and the court is thus with the concerning parties required informed views of the extent of detail development and the manner in which its should occur at both the Indeed, many appellate level and on review. there are models administering appropriate developing a record and of methods for jurisdic- appellate practice review which are from in other discernible advocacy question. tions and thus are available to inform the See, on the id.; White, e.g., 967 P.2d at 1053-54. Young comprised entirely Ernst report & the mental opinions impressions, representative. and conclusions of its circumstances, Under such find we that the Senators have of proof preservation failed to meet their burdens and issue concerning question of whether the contains materi- al qualifying record.15

The principal argument presented by which was Senators is that any have waived PennDOT OGC upon reliance the work permitting doctrine selec report by tive access to the certain members General particular, In Assembly. from quote the Senators the follow ing statement attributed to the Joseph Loeper: Honorable F. President, I do figures

[M]r. believe that I have that could gentleman’s answer questions figures the how in [regarding Bill 48 Again, House were figures at]. arrived these that I going am to recite to him figures are verified to were the Commonwealth firm of the Ernst & Young, who or audited reviewed the material submitted Envirotest in order to determine what actual costs their were. reveals, passage most,

This at “figures” the communication of Young, Ernst & without reference to the manner and disclosure, including extent the it through whether occurred provision the report question, the or report even a at Further, all.16 provide the Senators argument insufficient Law, parlance In Agency the of the Administrative the Senators failed to invoke "in appellate the accordance with law” facet the review, 704, § courts' Pa.C.S. on basis that OGC’s determination Young report product unsupport- constituted work by competent findings ed factual inadequate and contained an basis for determining arbitrary whether it capricious. was other than Cf. Bd., generally Pennsylvania Fraternal Order Police v. Labor Relations 586, 591-92, (1999). 557 Pa. Pollard, (4th Corp. 16. As reflected in Martin Marietta 856 F.2d 619 Cir.1988), progeny, jurisdictions many apply and its a limited waiver concept opinion to product, disclosures of work in contrast ato broader "subject approach non-opinion matter waiver” to disclosures. See id. Willcox, generally at 622. See B. Martin Marietta and Erosion Protection, Attorney Privilege Client and Work-Product 49 Md. L.Rev. (1990). material, 929-34 In to addition the content of the other assessment, frequently factors are considered in the waiver such as the disclosure, including context of a whether it in a occurred testimonial .intragovernmental, inter- to which an concerning the extent may implementation be essential disclosure that branch a form of waiver. decision would constitute of an would implications that obviously political carries question part judiciary on under- special caution suggest particularly under the rubric it squarely, to resolve taking general providing statutory provisions for access text. Most accompanying 18 and note public. Cf infra however, find that assertion selective centrally, we context, in this since the uncontest- lacks relevance disclosure it from the product as work removes ed status of Act. Under our inter- under the categories of records as work serves of the material pretation, the character material which would exception to the disclosure of not as an accessible, principles waiver in which case qualify otherwise rather, limitation as a definitional might be but pertinent, find first instance. We what would be accessible upon that, of materials within the type are not the where records principles applied cannot be purview, Act’s waiver initial coverage.17 its subject into transform them Court’s observation Finally, we endorse Commonwealth Act’s proceeded pursuant present since the case ' access, concerning it not determinative provisions extent, whether, might gain and what the Senators legislative branch.18 capacity as members of the in their disposition setting. our id. at 924-26. Given or non-testimonial briefs, below, guidance we decline to the of from the absence analysis generally appropriate of the waiver undertake an assessment Pennsylvania. applicable the doctrine in work cases, argument do foreclose the in some 17. We not here impressions, opinions agency’s or failure to treat mental conclusions may processes character undermine this essential internal deliberative satisfy compo- permit the "essential and thus associated materials Right to Know Act. See McCand- nent" or close relation tests under the 56-57, less, cases). (citing Significantly, 555 Pa. at at in such terms or the have not framed their contentions Senators in the proceeded that PennDOT in such a fashion established OGC or limited, intragovern- permitting present apparently circumstances "figures” securing process the of essential mental access certain in funding for the Envirotest settlement.. footnote, majority stated: In a the Commonwealth Court Therefore, although Judge Kelley’s regarding comments the desirability cooperation government between branches of carry budgetary weight, matters they substantial have no bearing upon questions presently the determined.

The order of the Commonwealth Court is affirmed.

Justice CAPPY joining concurring files a opinion in which joins. Justice CASTILLE concurring

Justice NIGRO files a opinion.

Justice ZAPPALA concurs in the result.

CAPPY, Justice, concurring. join I majority the opinion. agree I with majority the that (“Act”) there is indication in Right to Know Act no. that Assembly the General subject internal, intended “to deli- aspects of agency berative making to mandatory decision public scrutiny.” Op. at 496. plain language of the Act does not support argument of Appellants that documents process created in the deliberative subject are mandatory disclosure.

Furthermore, acknowledge while I majority does not adopt process id., the deliberative privilege, is my it strong recognize belief that this court should existence a privilege. such The significant policy considerations militat- ing in adoption favor privilege such a are evident in sub judice. matter Were we to expand scope of the Act to reach documents related the internal deliberative requested Our conclusion "public documents are not rec- Right precludes ords” under to Know Ac1 any “citizen Pennsylvania,” of the including Commonwealth of Petitioners their capacities. allege individual While they duly Petitioners also are Pennsylvania, elected members of the Senate they authority cite no greater rights that would accord them of access than would be note, however, any accorded to cilizen. We majority that both the minority chairpersons Appropriations Senate and House Com- rights statutory mittees have "budgetary to certain data” possession express opinion Executive Branch. We no as to type requested whether of information here would constitute budgetary "other data” within meaning of Section 620.

LaValle, 737 A.2d at 333 n. 7. 502 effect on there would be deleterious agency,

process to arrive at reasoned necessary for the candor exchange chilling on the free Because of this effect decisions. agency would ideas, drawn the ultimate conclusions This, my sorry opinion, would be be as well informed. not adoption of the deliberative As I believe state of affairs. open exchange ideas would assure process privilege I unimpeded, would entity would continue government in a privilege this matter. expressly endorse concurring opinion. joins this Justice CASTILLE NIGRO, Justice, concurring. that under the majority compelled agree

I am with the case, Young’s report of the instant circumstances to Know Act because Right subject not disclosure under 4003.5; 65 Pa.R.C.P. P.S. product doctrine. See work 66.1(2) any (excluding definition of a record § from the order); statute, law, or prohibited by report to which access 36, Co., 1 641 A.2d v. Ins. Pa.Cmwlth. Corp. Maleski Life (1994). separately to that had the Senators I write note that Ernst & and OGC’s assertion challenged PennDOT’s only Young’s mental im- Young’s report contained Ernst & opinions, and conclusions about PennDOT’s defense pressions, may have litigation,11 Envirotest believe Senators informa- report also contained been able establish damages and tion, depicting such as factual data Envirotest’s product work privileged is not under the expenses, which representative. attorney’s for an See Pa.R.C.P. doctrine However, notes, Senators majority as the because the 4003.3. report, there is failed seek an camera review way report simply no for this Court determine whether alleged solely product, work OGC Penn- contained DOT, under protected it contained information not or whether show that the was both outside 1. The Senators had burden to 934, City privilege, Aliquippa, A.2d see Gould work (2000), Hills 1037, under the Act. North News and a record McCandless, Record v. Town 555 Pa. (1999). therefore, the work properly subject doctrine review under the Act. A.2d WILLIAMS, Appellant,

Clarence James PENNSYLVANIA BOARD OF PROBATION

PAROLE, Appellee. Appeal

No. 134 M.D. Docket 2000. Supreme Pennsylvania. Court of

Feb. ORDER PER CURIAM: NOW,

AND this day 20th February, probable jurisdiction is noted and order appealed is affirmed. notes infra whether, provide does the record determining a basis for to what extent, Young report manner & what the Ernst underlies or actually reflects the settlement tendered. facially minutes, decisions not orders or materials were components” cov- represented “essential but nevertheless 56-57, (citing at id. at decisions. See ered cases). by the Commonwealth Although this formulation correlation that degree appropriately reflected Court fully implement effort has been our essential required, Act,10 straying without of disclosure policy Legisla- prescribed by the unduly limits from definitional id. at elevating form over substance. See ture and without By emphasizing requirement A.2d 1040 n. 4. n. at this relation, and McCandless reflect Roofing Sapp close as well as precedent, from Court Commonwealth elaboration both logic an extension minutes/orders/decisions

Case Details

Case Name: LaValle v. OFFICE OF GEN. COUNSEL OF COM.

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 20, 2001

Citation: 769 A.2d 449

Docket Number: 18 M.D. Appeal Dkt. 2000

Court Abbreviation: Pa.