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

> Commonwealth Court of Pennsylvania · May 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11000310

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 6, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Wojcik
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11000310

## How later opinions describe it (automated extraction)

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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11000310. Public record. Not legal advice.