In re: Appeal of D. Auerbach ~ Appeal of: D. J. Auerbach

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of Daniel Auerbach : CASES CONSOLIDATED

:

Appeal of: Daniel J. Auerbach : No. 729 C.D. 2023

In re: Appeal of Daniel Auerbach :

: No. 989 C.D. 2023

Appeal of: City of Philadelphia : Argued: March 5, 2025

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: May 6, 2025

As aptly described by the Philadelphia County Court of Common Pleas

(trial court), these consolidated cross-appeals “represent the latest in the cat and

mouse game over Daniel J. Auerbach’s request for records related to the City of

Philadelphia’s [(City)] Covid-19 response.” Trial Court’s Op., 1/22/24, at 1. More

particularly, the City appeals from the trial court’s June 16, 2023 and June 28, 2023

Orders which concluded that Article V, §5-1104 of the City’s Home Rule Charter

(Charter) conferred an enforceable individual right to access City Records. Before

this Court, the City argues that this right is merely a generalized public right

effectuated by the City Archives such that Auerbach possesses no individual right

under the Charter to inspect the requested emails.

Conversely, Auerbach appeals from the trial court’s June 28, 2023

Order, which incorporated the Right-to-Know Law’s (RTKL)1 deliberative process

privilege exception as applied to his request to inspect records under the Charter.

On appeal, Auerbach argues that the RTKL’s exceptions are exclusive thereto and

that the trial court erred by permitting the City to redact documents for his inspection

pursuant to his request. Upon careful review, we reverse.

I. Background

A. March 2022 request under Article V, §5-1104 of the Charter

Although this is the first of Auerbach’s requests which have obtained

our Court’s review, this is not the first time Auerbach has requested emails relating

to the City’s Covid-19 response under the Charter. In fact, Auerbach made a similar

request in March 2022, seeking the production of all emails relating to the City’s

Covid-19 response from the City’s Health Commissioner, Dr. Cheryl Bettigole.

According to the trial court, the City denied his request in a letter, reasoning that the

RTKL’s “standard for disclosure must be applied . . . .” Trial Court’s Op., 5/3/2022,

at 1. Instead of responding, Auerbach filed a mandamus action in the trial court

seeking production of the emails. Auerbach also filed a motion for peremptory

judgment under Pennsylvania Rule of Civil Procedure 1098,2 prompting the City to

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

2

“At any time after the filing of the complaint, the court may enter judgment if the right of

the plaintiff thereto is clear. Judgment shall not be entered without prior notice to all parties unless

the exigency of the case is such as to require action before notice, in which event notice shall be

given as soon as possible.” Pa.R.Civ.P. 1098.

2

file preliminary objections. While the trial court did not agree with the City’s

preliminary objections, it concluded that the matter was premature, ultimately

denying Auerbach’s motion for peremptory judgment; overruling the City’s

preliminary objections; and dismissing the matter without prejudice. Trial Court’s

Op., 5/3/22, at 10.

Relevant here, the trial court summarily explained that the City’s

Charter conferred a public right to inspection on its residents such that any member

of the public could inspect City Records. Trial Court’s Op., 5/3/22, at 5. Because

Article V, §5-1100 of the Charter provides that a City Record “shall include all

books, papers, maps, photographs, reproductions, or other documentary materials

regardless of physical form or characteristics owned by the City[,]” the trial court

reasoned that Commissioner Bettigole’s emails were necessarily City Records.3

3

Article V, §5-1100 of the Charter provides in full:

Within the scope of its functions under this charter, the Department

of Records shall exercise the powers and perform the duties

pertaining to the creation, maintenance for public use, retention and

disposition of City records, formerly exercised and performed by all

officers, departments, boards or commissions or other governmental

agencies of the City and such other duties as are conferred or

imposed upon it by this charter or by ordinance. “City records” shall

include all books, papers, maps, photographs, reproductions, or

other documentary materials regardless of physical form or

characteristics owned by the City and made or received by any

officer, department, board or commission or other governmental

agency of the City in pursuance of any statute or ordinance or in

connection with the transaction of public business and preserved or

appropriate for preservation as evidence of the organization,

functions, policies, duties, procedures, operations, or other activities

of the City or because of the informational value of data contained

therein. “City records” shall not include library and museum

material made or acquired and preserved solely for reference or

exhibition purposes.

3

Trial Court’s Op., 5/3/22, at 6. To the extent that the City argued that the RTKL

preempted the Charter’s public right to inspection, the trial court opined that “the

Charter and the RTKL stand side-by-side in Philadelphia as equal avenues to public

inspection.” Id. at 7. The trial court similarly found the City’s argument that

Auerbach failed to exhaust his statutory remedies under the RTKL unpersuasive.

Again, the trial court expressed that “this situation is different. The [] Charter

specifically authorizes public inspection. Simply because the RTKL, in

Philadelphia, is a separate path to the same or similar information, does not render

the [] Charter a nullity.” Id. Finally, the trial court observed that any disclosure

under the Charter was subject to limitations concerning the time, place, and manner

of the disclosures. Because Auerbach requested all of Commissioner Bettigole’s

emails, the trial court considered the request to be overbroad and made in an

unreasonable manner. Id. at 9-10.

B. RTKL Request and July 22, 2022 Charter Inspection Request

While this litigation was ongoing, Auerbach made a similar request to

the City under the RTKL. According to the City, it produced nearly 5,000 pages of

redacted emails in response thereto on July 22, 2022. See Designated Appellant’s

Brief (City’s Brief) at 7.

On the same day, Auerbach sent an email to the City’s Law Department

requesting to inspect City Records “solely under §5-1104 of the City’s [] Charter.”

See Reproduced Record (R.R.) at 33a. More specifically, Auerbach requested a

number of emails from the RTKL document production in unredacted form. To be

exact, Auerbach requested:

I request that the City permit me to inspect certain emails

from [the RTKL] document production in unredacted

4

form. I have attached PDFs of the relevant documents as

produced to me to the email by which I transmitted this

letter. I maintained the file name of the documents as the

City’s vendor provided them to me. Please let me know if

it is unclear what I am requesting.

Id.

The City’s Law Department denied the request in a letter dated August

10, 2022. In primary part, the Law Department reiterated that the emails were

redacted pursuant to its claimed exemptions under the RTKL and reminded

Auerbach that he had the right to appeal the redactions to the Office of Open

Records. However, the Law Department added that “unless and until that statutory

remedy [was] exhausted, [Auerbach was] not entitled to demand inspection” under

the Charter. R.R. at 1a. The Law Department also cautioned that the redacted

material was exempt under the Charter’s own exceptions, the deliberative process

privilege, and “other potential legally recognized duties of confidence and

privilege.” Id. The Law Department largely reiterated its response in a subsequent

email to Auerbach on August 17, 2022. See R.R. at 3a.

In response, Auerbach filed a local agency appeal in the trial court

under Section 752 of the Judicial Code, 2 Pa. C.S. §752.4 More specifically,

Auerbach filed a Notice of Appeal from the “decision of the City[’s] Law

Department, dated August 17, 2022 . . . .” See Original Record (O.R.) at Item No.

1.

On June 16, 2023, the trial court reaffirmed “its previous conclusion

that the Charter provides for a public right to inspection,” covering the emails at

4

The Local Agency Law, 2 Pa. C.S. §§551-555, 751-754. Section 752 of the Local Agency

Law provides: “Any person aggrieved by an adjudication of a local agency who has a direct

interest in such adjudication shall have the right to appeal therefrom to the court vested with

jurisdiction of such appeals by or pursuant to title 42 (relating to judiciary and judicial procedure).”

2 Pa. C.S. §752.

5

issue; finding that the deliberative process privilege under the RTKL applies to the

Charter’s right to public inspection; and ordered the City to produce unredacted

emails for in camera review. Trial Court’s Order, 6/16/23, ¶¶1-4. After conducting

its in camera review, the trial court found that some of the City’s redactions were

not covered by the deliberative process privilege and ordered their production. Trial

Court’s Order, 6/28/23, ¶¶1, 3. However, the trial court found that the City properly

applied its privilege in most circumstances. Id. ¶2.

Both parties filed timely cross-appeals. In an opinion filed pursuant to

Pennsylvania Rule of Appellate Procedure 1925(a), the trial court explained that,

concerning the City’s appeal, it was incorporating its reasoning from its May 3, 2022

opinion. Regarding Auerbach’s appeal, the trial court explained that “the

deliberative process privilege is recognized by both statutory and decisional law.”

Trial Court’s Op., 1/22/24, at 7. Although “the Charter does not specifically

reference the deliberative process privilege . . . [Section 5-1104 of the Charter]

clearly provides that the public’s right to inspection is not absolute and must be

qualified by legally recognized privileges, one of which is the deliberative process

privilege.” Id.

II. Issues

Before this Court,5 the City asserts that the Law Department’s August

17, 2022 email denying Auerbach’s request to inspect emails pursuant to Article V,

§5-1104 of the Charter does not constitute an appealable adjudication under Section

5

Our review of a local agency appeal, where “a full and complete record of the proceedings

before the local agency was made,” is limited to whether constitutional rights have been violated,

whether an error of law has occurred, and whether substantial evidence supports the agency’s

findings of fact. 2 Pa. C.S. §754.

6

752 of the Local Agency Law, 2 Pa. C.S. §752. City’s Brief at 6. For his part,

Auerbach raises the following issue: whether the trial court erred in incorporating

the RTKL’s deliberative process privilege to his request under the Charter’s right to

public inspection. Designated Appellee’s Brief (Auerbach’s Brief) at 3. We believe

both parties have failed to discern the dispositive issue in this case, namely, in whom

does the Charter invest the duty of guaranteeing the public’s right to inspection?

III. Discussion

The City primarily argues that the Law Department’s letter was not an

appealable adjudication under the Local Agency Law because the Charter does not

grant “any individual person an enforceable right to access specific documents.”

City’s Brief at 15. Rather, the City argues that it effectuates the public right of

inspection under the Charter by operating its “rich” City Archives. “Read in the

context of all of Article V, Chapter 11’s provisions, Section 5-1104 establishes the

public nature of City Records and confers a generalized right or privilege to the

public at large to inspect records for the purpose of learning how the government

conducts its business . . . .” Id. at 18 (citing Article V of the Charter, §5-1101(d))

(emphasis in original). The City does not believe that the framers of Article V of

the Charter intended to create an “administrative scheme” like the RTKL or its

predecessor the Right-to-Know Act,6 nor that the framers intended to confer an

enforceable right on individual citizens. In support thereof, the City likens the

instant matter to our Court’s decision in In re Malehorn, 106 A.3d 816 (Pa. Cmwlth.

2014) (concluding that a responsive email to a request made under Section 1626(c)

6

Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§66.1-66.4, repealed by

the RTKL.

7

of the Pennsylvania Election Code7 did not constitute an adjudication for purposes

of Section 702 of the Administrative Agency Law, 2 Pa. C.S. §702). Finally, as a

practical matter, the City argues that affirming the trial court’s decision would

double the requests for the same documents under both the Charter and the RTKL

and potentially produce different, asynchronous outcomes.

Auerbach responds by characterizing the City’s argument as treating a

public right as “no right at all.” Auerbach’s Brief at 14. More particularly, Auerbach

asserts that the Charter’s public right to inspection is enforceable by an individual,

and the City’s denial of his request constitutes an adjudication under the Local

Agency Law because an adjudication includes any determination affecting a

privilege of the parties involved. Id. (citing Section 101 of the Judicial Code, 2

Pa. C.S. §101). Auerbach believes that this Court’s prior decisions, such as Nguyen

Vu v. Pennsylvania Board of Probation and Parole, 200 A.3d 627, 632 (Pa. Cmwlth.

2018), clarify that “the right to access public records is a privilege.” Auerbach’s

Brief at 16. As for the City’s practical arguments, Auerbach is unsympathetic.

Rather, he argues, “[a]ny burden on the courts under the public right to inspection

would be solely the responsibility – and fault – of the City.” Id. at 26. Auerbach

even goes so far as to allege that “[t]he City’s unspoken problem with the public

right to inspection is that if offers fewer statutory exemptions than the [RTKL].” Id.

at n.6.

Preliminarily, the City’s electors adopted the current Charter on April

17, 1951, and the Charter became effective on January 7, 1952. See City of

7

Act of June 3, 1937, P.L. 1333, as amended, added by Act of October 4, 1978, P.L. 893,

25 P.S. §3246(c).

8

Philadelphia v. Schweiker, 858 A.2d 75, 81 n.9. (Pa. 2004).8 Relevant here, the

Charter created a Department of Records to remedy a number of problems caused

by the disorderly and inefficient management of City Records. For example, there

were no uniform standards for the creation, maintenance, or disposal of City Records

across the City’s various departments and important historical records were either

scattered throughout the City and deteriorating under a department’s particular

storage standards or bound to deteriorate under the same. The framers of the Charter

explained that without uniform standards “certain economics” could not be obtained

and stated: “To overcome these undesirable conditions, a Department of Records is

created, and this section vests all record functions in that Department.” Annotation

to §5-1100.

To affect these goals, the Charter invests certain powers and duties in

the Department of Records. See Article V of the Charter, §5-1101. Among these,

the Charter empowers the Department of Records to “make rules embodying

standards for all departments, boards, commissions” or other City agencies, id. §5-

1101(a); to establish and maintain the City Archives, id. §5-1101(c); and,

importantly, to make City Records available for public inspection. Id. §5-1101(b).

Attendant to these powers, the Department of Records may “examine the records of

any office department, board or commission to determine the manner in which they

are maintained[,]” id. §5-1102, and to “make rules binding on all officers,

departments, boards or commissions and necessary to carry out the powers and

duties vested in it by [the C]harter.” Id. §5-1103.

Regarding the public inspection and use of City Records, the Charter

provides:

8

The Charter is digitized and can be found at: https://codelibrary.amlegal.com/codes/phila

delphia/latest/philadelphia_pa/0-0-0-262986 (last visited 5/5/25).

9

The Department shall collect, maintain and make available

for public inspection the original or duplicates of all City

Records maintained for that purpose. Where such records

are necessary for the current exercise of the powers and

the current performance of the duties of any office,

department, board or commission or other agency, the

original or a duplicate thereof may also be retained by such

department, board or commission. The Department shall

furnish to persons applying therefor certificates relating to

City Records or copies of City Records upon the payment

of such charges as shall fairly reimburse the City for the

cost of such service and for this purpose it shall prepare

and from time to time revise a schedule of fees.

Article V of the Charter, §5-1101(b). On this point, the framers explained that the

public has many “personal and business reasons” for obtaining City Records, but

were previously discouraged from doing so by the former state of the City’s record

collections. Annotation No. 2 to §5-1101. “To remedy this condition, the

Department of Records [was] made the agency where all records either in the

original form or duplicate form are to be kept and are to be available for public

inspection . . . . The Department of Records will be the one agency where copies

of records may be obtained by the public . . . .” Id.

The framers of the Charter saw fit to qualify the public right to

inspection, however. The provision at issue now, Article V of the Charter, §5-1104,

provides:

City records, the disclosure of which would invade a

person’s right to privacy, hinder law enforcement,

endanger the public safety, or breach a legally recognized

duty of confidence, or the nondisclosure of which is

legally privileged, or which have been prepared for or by

the Law Department for use in actions or proceedings to

which the City is or may be a party, shall not be available

for public inspection. Except as herein provided, all other

City records shall be open for public inspection but the

officer, department, board or commission or other

10

governmental agency of the City having the care and

custody of such records may make reasonable regulations

governing the time, place and manner of their inspection

and for the purposes of archival preservation, copies of

City records may be substituted in lieu of original

records.[9]

Article V of the Charter, §5-1104. (emphasis added). The framers of this provision

explained its purpose as follows:

Records of the City relate to the government of the City

and for that reason those governed should have a right to

inspect them. However, this right has to be qualified by

reasonableness as to the time, place and manner of

inspection, by assuring adequate for the records being

examined, and by considerations for protecting the

individual right to privacy, law enforcement, public safety,

legally recognized duties of confidence, legally

recognized privileges and the interest of the City in any

lawsuit in which it may be involved.

Id., Annotation to §5-1104 (emphasis added).

We believe these provisions illustrate why Auerbach has, for lack of a

better phrase, jumped the gun on filing a local agency appeal in the trial court. Here,

as indicated, Auerbach sought the unredacted versions of certain emails from the

July 22, 2022 RTKL document production under the Charter’s public right to

9

The exact interplay between the Department of Records’ duties under the Charter and its

relationship with other City departments and agencies is not at issue here nor here decided.

However, we would not interpret the clause regarding a custodian’s ability to govern the time,

place, and manner of the records’ inspection to conflict with the Department of Records’ exclusive

authority to make the records available to the public as discussed supra. Rather, reading this

provision in pari materia with the other provisions concerning the Department of Records’ duties,

e.g., to examine records or to bind other agencies by the Department of Records’ rules, we believe

the clause is simply meant to qualify the Department of Records’ otherwise exclusive authority

over the City Records. In other words, while the Department of Records would facilitate the

request for inspection, the custodian of the record would nevertheless be permitted to “make

reasonable regulations governing the time, place and manner of their inspection.” Article V of the

Charter, §5-1104.

11

inspection from the City’s Law Department. R.R. at 33a. Auerbach then proceeded

to file a local agency appeal in the trial court under the rationale that the Law

Department’s August 17, 2022 email denying his request constituted an

adjudication. O.R. at Item No. 1. Then, as litigation over this matter progressed, the

parties focused pervasively on what the Charter’s public right to inspection entails,

such that they overlooked the more relevant inquiry, i.e., in which department does

the Charter entrust the task of discharging the public’s right to inspect City Records?

The Charter, however, answers this question unequivocally and

exclusively: the Department of Records. See Article V of the Charter, §5-1101(b)

(“The Department of Records shall have the power and its duty shall be . . . [to] make

available for public inspection the originals or duplicates of all City Records

maintained for that purpose.”); id., Annotation No. 2 to §5-1101 (“[T]he Department

of Records is made the agency where all records . . . are to be kept to be available

for public inspection. . . . The Department of Records will be the one agency of

the City where copies of records may be obtained by the public . . . .”) (emphasis

added). Thus, in no uncertain terms, a member of the public wishing to avail

themselves of the public right to inspect City Records under the Charter must do so

by seeking the record from the Department of Records, not the Law Department.

This distinction is critical because it is ultimately jurisdictional. In the

administrative agency context, we have held that “the power and authority to be

exercised by administrative agencies must be conferred by the Legislature. The

powers and authority must be either expressly conferred or given by necessary

implication.” Department of Environmental Resources v. Butler County Mushroom

Farm, 454 A.2d 1, 4 (Pa. 1982). We find this principle persuasive with respect to

this local agency appeal, and observe that the Charter only vests the Law Department

12

with the power to furnish legal advice to City personnel, including the Department

of Records; to conduct litigation; to prepare and approve contracts; to conduct

investigations; to draft or codify ordinances; and grants the City Solicitor access to

the records of the other departments. Article IV of the Charter, §§4-400-4-401; 8-

410. However, as indicated, the Charter treats the Department of Records’ ability to

grant access to City Records under the Charter’s right to public inspection as

exclusive thereto. Therefore, even if we were to agree, arguendo, that the August

17, 2022 email constituted an adjudication, as an exclusive subject of the Department

of Records’ functions, we would be constrained to conclude that the Law

Department was powerless to adjudicate the matter – thereby depriving the Law

Department of jurisdiction. See City of Pittsburgh v. Silver, 50 A.3d 296, 299 (Pa.

Cmwlth. 2012).

To be sure, this provision of the City’s Charter has been rarely invoked

and, as such, the relevant case law on the matter is sparse.10 So too, the parties were

likely distracted by their familiarity with analogous provisions of the RTKL. Indeed,

while it is obvious that the Charter confers the right to inspect City Records upon

the public, the precise contours of what exactly this right entails and the proper

procedure for availing oneself of this right are much less obvious. Upon review,

however, we do not believe that the Charter empowered the Law Department to

determine the availability of City Records for Auerbach’s inspection. Thus, the

10

While neither the trial court nor the parties cite or analyze the cases mentioned below,

we note that this Court has previously discussed the enforceability of the Charter’s public right to

inspection on a few occasions. See Moak v. Philadelphia Newspapers, Inc., 336 A.2d 920, 921-

22 (Pa. Cmwlth. 1975), abrogated on other grounds by Pennsylvania State University v. State

Employees’ Retirement Board, 935 A.2d 530, 541 (Pa. 2007); and City of Philadelphia v. Doe,

405 A.2d 1317, 1318-20 (Pa. Cmwlth. 1979). Although Moak and Doe do little to clarify the

process required to obtain City Records under the Charter’s public right to inspection, we

disapprove of both cases to the extent either case differs from our decision herein.

13

subject of Auerbach’s appeal – the Law Department’s August 17, 2022 email –

cannot serve as the basis for a local agency appeal and the trial court erred as a matter

of law by finding otherwise.

IV. Conclusion

Accordingly, the trial court’s orders are reversed.11

MICHAEL H. WOJCIK, Judge

11

As the RTKL’s provisions are not at issue herein, the foregoing opinion should in no

way be interpreted to provide guidance on any RTKL requests made to the City or its various

departments and agencies.

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of Daniel Auerbach : CASES CONSOLIDATED

:

Appeal of: Daniel J. Auerbach : No. 729 C.D. 2023

In re: Appeal of Daniel Auerbach :

: No. 989 C.D. 2023

Appeal of: City of Philadelphia :

ORDER

AND NOW, this 6th day of May, 2025, the orders of the Philadelphia

County Court of Common Pleas dated June 16, 2023, and June 28, 2023, are

REVERSED.

__________________________________

MICHAEL H. WOJCIK, Judge