Schenck v. TP. OF CENTER, BUTLER COUNTYSchenck v. TP. OF CENTER, BUTLER COUNTY
Lead Opinion
OPINION BY
This сase involves a request under the law commonly known as the Right to Know Act (Act),
Plaintiff filed a request with the Township of Centre seeking copies of itemized invoices from its solicitor, Michael D. Gallagher, for the period from December 2002 through 2003. The requested invoices included bills for the solicitor’s services in a pending action filed by Plaintiff against four members of the Township’s Board of Supervisors.
Thereafter, the Township sent Plaintiff copies of the solicitor’s invoices that related to general legal services. However, the Township indicated that further review of invoices for litigation services was necessary to determine whether any entries were subject to attorney-client privilege, attorney work product privilege or deliberative process privilege and thus not subject to access under the Act.
Later, the Township sent Plaintiff copies of the solicitor’s invoices that related to litigation matters, explaining that the “description of services rendered” for each charge was redacted pursuant to section 3.2 of the Act,
Ultimately, Plaintiff filed a complaint against the Township,
The trial court heard argument, but did not receive evidence. During argument, Plaintiffs counsel asserted that the Township needed to produce the invoices to prove that the documents were not accessible. However, special counsel now represеnting the Township argued that production of the invoices was not'required. According to Township’s special counsel, this controversy involved only a question of law, that is, whether the services description of a solicitor’s invoice is subject to access under the Act.
The trial court determined the description of services portion of litigation invoices constitutes attorney work product and does not qualify as a public record. It therefore granted summary judgment to the Township, thereby affirming the action taken by the Township.
A timely appeal was taken to this Court.
The primary issue we decide is whether the description of litigation-related legal services in a solicitor’s invoice is shielded from access under the Act. We hold that it is, although for reasons different than those upon which the trial court relied. Brown v. Blaine,
A party asserting right to disclosure of documents pursuant to the Act must establish that the requested documents were generated or kept by “an agency” and that they constitute “public records.” Goppelt v. City of Phila. Revenue Dep't,
Here, there is no dispute that the invoices in question bear the characteristics of a “public record” as defined in the Act. However, this does not conclude our inquiry, as certаin types of privilege may exclude the invoices from the definition. See LaValle v. Office of General Counsel,
Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
The Act is one of a series of legislative enactments designed to provide a comprehensive format governing public access to the meetings and hearings of public agencies. Judge v. Pocius,
A provision in the Sunshine Act permits an agency to conduct some of its business in executive session, outside the view of the public. Thus,
This statutory exception from the disclosure provisions of the Sunshine Act broadly relates to information in connection with pending or impending litigation. It is not limited to attorney work product.
Construing the Act and the Sunshine Act together as one statute and as part of a uniform system of jurisprudence, this exception from disclosure appliеs here. Indeed, it would be absurd if litigation information from the solicitor was protected the evening of a municipal meeting, but it could be accessed the next morning through a description of litigation-related legal services in an invoice. We presume such an unreasonable result is not intended.
Turning now to the specific arguments raised by Plaintiff, we hold they lack merit. The Township did not err when it denied access to the description of litigation-related services, because the litigation information provision of the Sunshine Act is construed to be part of all statutes with which it is in pari materia, including the Act. The solicitor properly protected the information in the absence of his client’s consent to disclose it. Rule 1.6(a) of the Rules of Professional Conduct,
As to the request for, hearing on remand, we decline the invitation. As previously discussed, it is not necessary for someone to cull through each service described in each invoice searching for attorney work product.
Plaintiff also makes a brief argument that Section 704(2) of the Second Class Township Code,
Regarding the claim of denial of due process for failure of the solicitor to withdraw earlier, we discern no merit, for several reasons. First, there is no indication in the record that Plаintiff sought the
For all the foregoing reasons, we hold that the description of litigation-related services in a solicitor’s invoice is not accessible under either the Act or the Sunshine Act in the absence of consent from the client municipality. Therefore, we affirm the trial court’s grant of summary judgment to the Township.
ORDER
AND NOW, this 28th day of February, 2006, the order of the Court of Common Pleas of Butler County in the above-captioned matter is AFFIRMED.
Notes
. Act of June 21, 1957, P.L. 390, as amended,
. In that action, the trial court sustained several of the Township's preliminary objections on July 14, 2003. Nine days later, Plaintiff filed her request under the Act. The trial court subsequently dismissed Plaintiff’s complaint by order dated February 26, 2004. Plaintiff unsuccessfully appealed to this Court, and to the Supreme Court, which denied appeal by allowance. (Township’s brief at. 1.)
.Section 3.2 of the Act was added by the Act of June 29, 2002, P.L. 663. It provides that where information not subject to access is an integral part of the public record and cannot be separated, the agency shall redact the informаtion that is not subject to access and grant access to the remainder of the public record.
.Plaintiff filed exceptions to the partial denial of her request, contesting the solicitor’s assertions that the redacted information was not accessible under the Act. By letter, the Township informed Plaintiff that at its regularly scheduled meeting of September 10, 2003, the Board of Supervisors voted to deny her exceptions. Thereafter, attorney Manning J. O’Connor II, who was retained by the Township as spеcial counsel, served Plaintiff with findings of fact and conclusions of law in support of the Board of Supervisors' decision. Reproduced Record (R.R.) at 52a-64a. In pertinent part, the Board of Supervisors found that the solicitor’s invoices reflect summaries of legal advice given to the Township and contain descriptive entries that include mental impressions, strategy, tactics and other matters that are subject to the attorney-client privilege, the work product privilege and/or the deliberative process privilege. (Findings of Fact, Nos. 24, 33, 34.) Thus, the Board of Supervisors concluded that the Township properly redacted that information.
. Section 4 of the Act,
. Our standard of review in a Right to Know Act case is whether an error of law was committed, constitutional rights were violated, or necessary findings of fact are supported by substantial evidence. Inkpen v. Roberts,
.
. Act of May 1, 1933, P.L. 103, as reenacted and amended.
. In the absence of any authority that the Pennsylvania Rules of Civil Procedure in general, and the discovery rules in particular, apply to this statutory appeal under the Act, we decline to embrace the dissent's discussion regarding discovery rules and cases applying them.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. The narrow issue raised in this appeal is whether the description of services rendered by a township solicitor, as set forth in the solicitor’s invoices, constitutes attorney work product as a matter of law. In affirming, the majority concludes that “all information from the solicitor relating to pending or impending litigation is inaccessible” to the public under the law commonly known as the Right to Know Law (Law).
The majority reasons that: (1) the Law and the Sunshine Act
Under the analysis employed by the majority, all disbursements made by a gov-
Significantly, although the Law and the Sunshine Act are similar in design, they are not .applicable to the same specific issues. The Sunshine Act applies to official action and deliberations by a quorum of agency members and requires that the same take place at a public meeting. The Law, on the other hand, applies only to “public records,” a term specifically defined by that statute to mean certain documents, i.e., “any account, voucher or contract dealing with the receipt or disbursement of funds ... and any minute, order or decision by an agency....”
The Sunshine Act permits an agency to meet in executive session for the purpose of: discussing any employment matter; discussing the negotiation or arbitration of collective bargaining agreements; considering the purchase or lease of real property; consulting with an attorney; and discussing other matters protected by a lawful privilege.
There is no dispute that records reflecting attorney work product doctrine do not qualify as public records under the Law. LaValle v. Office of General Counsel,
The work product doctrine evolved from the holding in Hickman v. Taylor,
Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indem-nitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memo-randa, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.
The comment to the rule states that this rule is carefully drawn and means exactly what it says. “It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes summaries, legal research and legal theories, nothing more.”
The majority’s broad holding (that all information from the solicitor related to litigation, not just attorney work product, is inaccessible to the public under both statutes) would lead to an absurd result: an individual such as Plaintiff would not be entitled to review documents related to litigation under the Law, but would be entitled to obtain production of the same documents through discovery, which only protects attorney work product.
The specific question presented here has not been decided by our appellate courts. However, federal decisions have addressed the applicability of the attorney-client privilege and work product doctrine in the context of discovery disputes. Federal courts havе held that attorney billing statements and time records are subject to the attorney-client privilege to the extent those records reveal the nature of services
Contrary to the approach taken by the majority here, in these cases the courts declined to base their decisions on the mere assertions of a party that the privilege applies. I, too, would decline to accept the Township’s mere assertions in this matter as sufficient to support thе grant of summary judgment. Instead, I would hold that the issue presented here is a mixed question of fact and law that cannot be answered without review of the solicitor’s invoices.
The trial court did not review the invoices at issue, and its determination is not supported by any other evidence of record. Accordingly, I would reverse.
. Act of June 21, 1957, P.L. 390, as amended,
.
. I agree that the Law and the Sunshine Act are part of a series of enactments designed to provide a comprehensive format governing public access to official information and meetings of public agencies. The two statutes are distinguishable, however, in that the intent of the Law is to ensure the availability of government information to the citizens of the Commonwealth by permitting access to official information, Tribune-Review Publishing Co. v. Allegheny County Housing Authority,
.The majority then cites Rule 1.6 of the Rules of Professional Cоnduct and states that "the solicitor properly protected the information in the absence of his client’s consent to disclose
In quoting the exрlanatory comment to Rule 1.6, the majority impliedly holds that this rule provides a separate basis for denying public access to the entire invoice under the Law. Such a holding has no support in the law, and it ignores the critical distinction between private entities, to whom the Law does not apply, and public entities, which are accountable to the public for the expenditure of public funds. Unlike a private individual, a township may not conceal the fact that it has engaged legal representation once the township has disbursed public funds or entered into а contract to do so. See
In addition, the majority does not conclude that the redacted information at issue in this case is protected by the attorney-client privilege. Nevertheless, I note that it is well-settled that the attorney-client privilege does not apply to all documents prepared by an attorney. See, e.g., Slusaw v. Hoffman,
. The majority dismisses the analysis of the work product doctrine undertaken in cases concerning discovery issues. I submit, however, that whether attorney work product is proteсted from disclosure by discovery rules, statute or common law, the determination of whether particular information is or is not attorney work product requires the same analysis.
. Reading Eagle Co. v. Council of City of Reading,