T. Mutchler v. PA PUC (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Mutchler, :

Petitioner :

:

v. : No. 1714 C.D. 2024

:

Pennsylvania Public Utility : Submitted: March 3, 2026

Commission (Office of Open :

Records), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE STELLA M. TSAI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: April 6, 2026

Terry Mutchler (Requester) petitions for review of the December 4, 2024

Final Determination of the Office of Open Records (OOR), which denied her appeal

from the partial denial of a Right-to-Know Law (RTKL)1 request (Request) she

submitted to the Pennsylvania Public Utility Commission (PUC).

Upon review, we affirm.

I. Background and Procedural History

A. The Request and the PUC’s Response

Requester submitted the Request to the PUC on or about August 8, 2024.2

Therein, she requested the following records:

1. A copy of the following Section 1329 Applications

(Chapter 13 of the Pennsylvania [Public] Utility Code[,] 66

1

Act of February 14, 2009, P.L. 6, 65 P.S. §§ 67.101- 67.3104.

2

The Request is dated August 7, 2024, and was received via email by the PUC on August 8,

2024. (Reproduced Record (R.R.) at 15a, 18a.)

Pa.C.S. [§] 1329) submitted to the [PUC] for the acquisition

of the following municipal systems:

a. Butler Area Sewer Authority

b. Borough of Brentwood

c. East Whiteland Township

d. Towamencin Township

[(Section 1329 Acquisition Applications)]. In addition to

these Section 1329 “Valuation of Acquired Municipal

Water/Wastewater System” submissions to the PUC, I am

also seeking correspondence, to include emails or texts,

between the following staff of the Office of the Governor and

the Commissioners of the [PUC] related to these four

projects as follows:

A. Governor’s Executive Staff:

i. Mr. Joseph Lee

ii. Ms. Dana Fritz

iii. Mr. Abkair Hossain

iv. Mr. Sam Robinson

B. PUC Commissioners:

i. Ms. Kimberly Barrow

ii. Mr. Stephen DeFrank

iii. Mr. Ralph Yanora

iv. Ms. Kathryn L. Zerfuss

v. Mr. John Coleman, Jr.

This request includes correspondence between the PUC

Commissioners as well. In order to assist in your search, I

am identifying the subject matter and the time frame for

these records as follows:

a. Subject matter of the RTKL: Records related

to these submissions for acquisition by the Pennsylvania

American Water Company or Aqua Pennsylvania, Inc., or

Aqua Pennsylvania Wastewater, Inc.

2

b. Timeframe for this request can be limited to:

January 21, 2023[,][3] to present.

Please be advised that this [Request] includes

correspondence between the Commissioners themselves, as

well as between the Commissioners and the Office of the

Governor staff identified related to the above-identified 1329

submissions.

(R.R. at 15a-16a) (emphasis in original).

After a 30-day extension, see Section 902(a), (b)(2) of the RTKL, 65 P.S.

§ 67.902(a), (b)(2), on September 16, 2024, the PUC granted the Request in part and

denied it in part. The PUC granted the Request as to all of the Section 1329 Acquisition

Applications themselves, notifying Requester that they all are publicly available on the

PUC’s website and providing the link where they could be found. (R.R. at 21a.) The

PUC further advised Requester of the name and docket number for each of the

Applications and explained how to search for them on the website. Id.

As to the requested communications, the PUC granted the Request as to

some of the communications, but denied the Request to the extent that some of the

responsive records contained “internal, predecisional deliberations of the [PUC] and

its staff,” which were exempt pursuant to Section 708(b)(10)(i)(A) of the RTKL, 65

P.S. § 67.708(b)(10)(i)(A) (the Withheld Records). Id.

B. Proceedings Before the OOR

Requester appealed the partial denial to the OOR, arguing that (1) the

PUC did not establish that the Withheld Records reflected the predecisional

deliberations of the PUC under Section 708(b)(10)(i)(A); (2) the PUC did not conduct

a proper search; and (3) the PUC did not prove that it redacted all records capable of

3

In reciting the content of the Request, the OOR’s Final Determination includes a date range

of January 21, 2024 through the date of the Request. (R.R. at 91a.) The correct starting date is

January 21, 2023.

3

redaction pursuant to Section 706 of the RTKL, 65 P.S. § 67.706.4 (R.R. at 13a.)

Requester requested that the OOR conduct an in camera review. Id. at 14a.

In its position statement to the OOR, the PUC argued that it conducted a

good faith search for records and validly invoked the Section 708(b)(10)(i)(A)

exemption. In support, the PUC submitted six affidavits, five from the PUC

Commissioners and one from Rosemary Chiavetta, Esq., the PUC Secretary and Open

Records Officer (ORO Chiavetta). (R.R. at 45a-46a.) The PUC explained that, upon

receiving the Request, ORO Chiavetta immediately conducted a search for responsive

records and instructed the five Commissioners to do the same. Id. In response,

[t]he Commissioners conducted a search of their respective

PUC Outlook email accounts and text messages contained in

their respective PUC-issued smartphones for all

correspondence responsive to the Request. Specifically, the

Commissioners searched for all emails and text messages

from January 21, 2023 forward that mentioned any of the

four Section 1329 Acquisition Applications specified in the

Request and that were shared amongst the Commissioners

and also between each Commissioner and any of the four

4

Section 706 of the RTKL provides as follows:

If an agency determines that a public record, legislative record or

financial record contains information which is subject to access as well

as information which is not subject to access, the agency’s response

shall grant access to the information which is subject to access and deny

access to the information which is not subject to access. If the

information which is not subject to access is an integral part of the

public record, legislative record or financial record and cannot be

separated, the agency shall redact from the record the information

which is not subject to access, and the response shall grant access to

the information which is subject to access. The agency may not deny

access to the record if the information which is not subject to access is

able to be redacted. Information which an agency redacts in accordance

with this subsection shall be deemed a denial under Chapter 9.

65 P.S. § 67.706.

4

members of the Governor’s Executive Staff named in the

Request.

(R.R. at 46a.) In her supporting affidavit, ORO Chiavetta explained her duties and

functions as the ORO for the PUC and her efforts to search for responsive records. She

attested:

Upon receiving the Request, I conducted a search for

responsive records which included sending a copy of the

request to each of the five PUC Commissioners, Chairman

Stephen M. DeFrank, Vice Chair Kimberly M. Barrow,

Commissioner Kathryn L. Zerfuss, Commissioner John F.

Coleman, and Commissioner Ralph V. Yanora, and their

respective staff on August 8, 2024[,] with instructions to

search for any emails, texts, or correspondence within their

possession related to the Section 1329 Acquisition

Applications for Butler Area Sewer Authority, Borough of

Brentwood, East Whiteland Township, and Towamencin

Township between themselves and any of the following

members of the Governor’s Executive staff: Joseph Lee,

Dana Fritz, Abkair Hossain, and Sam Robinson. I also

directed the Commissioners that their search must include

correspondence between Commissioners, as well.

(Chiavetta Affidavit, ¶ 3; R.R. at 69a.)

In response to ORO Chiavetta’s directives, all five PUC Commissioners

conducted searches for responsive records. Each Commissioner thereafter submitted

an affidavit (together with the Chiavetta Affidavit, the Affidavits) explaining his or her

search, as follows:

[A] search [was conducted] of [each Commissioner’s] PUC

Outlook email account and text messages contained in [each

Commissioner’s] PUC-issued smartphone for all

correspondence responsive to the Request. Specifically,

[each Commissioner] searched for all emails and text

messages from January 21, 2023, forward that mentioned

any of the four Section 1329 Acquisition Applications

specified in the Request and that were shared between [the]

5

Commissioners, including the Chairman and Vice Chairman,

and also between [ ] any of the four members of the

Governor’s Executive Staff named in the Request.

(DeFrank Affidavit, ¶ 7, R.R. at 55a; Barrow Affidavit, ¶ 8, R.R. at 58a; Zerfuss

Affidavit, ¶ 7, R.R. at 62a; Yanora Affidavit, ¶ 2, R.R. at 65a; Coleman Affidavit, ¶ 2,

R.R. 67a.) Each Commissioner also described his or her duties with the PUC and the

results of their records search. Commissioners Yanora and Coleman attested that they

did not find any responsive records. (Yanora Affidavit, ¶ 3, R.R. at 65a; Coleman

Affidavit, ¶ 3, R.R. at 67a.) Chairman DeFrank, Vice Chair Barrow, and

Commissioner Zerfuss attested that they located responsive records and gave them to

ORO Chiavetta, who submitted the records to the PUC’s Law Bureau for review.

(Chiavetta Affidavit, ¶ 4-9, R.R. at 70a.)

More specifically, Chairman DeFrank, Vice Chair Barrow, and

Commissioner Zerfuss all attested that they were assigned to review the Section 1329

Acquisition Application of Pennsylvania-American Water Company regarding the

Butler Area Sewer Authority prior to the public meeting on November 9, 2023, at

which the Commissioners voted on the application. (DeFrank Affidavit, ¶¶ 3-4, R.R.

at 55a; Barrow Affidavit, ¶¶ 4-5, R.R. at 58a; Zerfuss Affidavit, ¶¶ 3-4, R.R. at 61a-

62a.) Vice Chair Barrow and Commissioner Zerfuss also attested that they were

assigned to review Chairman DeFrank’s testimony to the Senate Democratic Policy

Committee regarding Section 1329 applications, which testimony was presented to the

Senate Democratic Policy Committee on January 22, 2024. (Barrow Affidavit, ¶ 6,

R.R. at 58a; Zerfuss Affidavit, ¶ 5, R.R. at 62a.) All three Commissioners located

responsive records relating to one or both of these subjects and submitted the records

to ORO Chiavetta. (DeFrank Affidavit, ¶¶ 8-9, R.R. at 55a; Barrow Affidavit, ¶¶ 9-

19, R.R. at 58a-59a; Zerfuss Affidavit, ¶¶ 8-16, R.R. at 62a-63a.)

6

With regard to the legal review of the responsive records, ORO Chiavetta

attested as follows:

10. On September 16, 2024, I conferred with attorneys

from the PUC’s Law Bureau to review all of the responsive

records. Upon review, it was noted that some of the

responsive records included draft documents that contained

recommended edits and comments.

11. The responsive records included drafts of the

following documents:

a. Prepared Testimony of Stephen M. DeFrank,

Chairman, Pennsylvania Public Utility Commission

before a public hearing of the Pennsylvania Senate

Democratic Policy Committee, January 22, 2024[.]

b. Statement of Vice Chair Kimberly Barrow in

Application of Pennsylvania-American Water

Company, pursuant to 66 Pa.C.S §§ 1102 and 1329 . .

. , Docket No. A-2022-3037047.

12. The draft documents identified in Paragraph 11

contained edits and comments from the

Commissioners and their respective staff which, if

disclosed, would reveal the predecisional

deliberations amongst the Commissioners.

13. Accordingly, the responsive records listed in

Paragraph 11 are exempt from disclosure under

Section 708(b)(10)(i)(A) of the RTKL.

14. The final versions of the responsive records identified

in Paragraph 11 are all publicly available on the

[PUC’s] website.

15. Additionally, other responsive records included

emails in which the Commissioners exchanged

comments soliciting one another’s input on the

responsive records identified in Paragraph 11, which

were attached to some of these emails.

7

16. Accordingly, the emails identified in Paragraph 15 are

likewise exempt from disclosure under Section

708(b)(10)(i)(A) of the RTKL.

(Chiavetta Affidavit, ¶¶ 10-16, R.R. at 70a-71a; see also Barrow Affidavit, ¶¶ 9-13,

R.R. at 58a-59a; Zerfuss Affidavit, ¶¶ 8-11, R.R. at 62a-63a).

Based on the Affidavits, the PUC argued that its partial denial pursuant to

Section 708(b)(1)(i)(A) was sufficiently specific and detailed under Section 9035 of the

RTKL, 65 P.S. § 67.903, because it specified the exact reason for withholding certain

documents and cited to the pertinent exemption in the RTKL. (R.R. at 47a-51a.) The

PUC further explained that the Withheld Records are draft documents and email

discussions among PUC Commissioners that contain proposed edits to, and comments

about, drafts of (1) the prepared testimony of Chairman DeFrank before a public

hearing of the Pennsylvania Senate Democratic Policy Committee on January 22, 2024,

regarding Section 1329 applications and associated legislative initiatives; and (2) the

public statement of Vice Chair Barrow at the PUC’s public hearing on November 9,

2023, concerning the purchase of the Butler Area Sewer Authority by Pennsylvania-

American Water Company (PUC Docket No. A-2022-3037047).6 (R.R. at 49a-50a.)

The PUC further advised that the final versions of both documents are available on the

5

Section 903 of the RTKL governs denials of RTKL requests and requires that denials be in

writing and include (1) a description of the requested record, (2) the specific reasons for the denial

with citations to legal authority, (3) the identity and contact information of the open records officer

authorizing the denial, (4) the date of the denial, and (5) the procedure to appeal the denial. 65 P.S.

§ 67.903(1)-(5).

6

The comments and edits of Vice Chair Barrow’s statement were exchanged between Vice

Chair Barrow and Commissioner Zerfuss on November 8, 2023. The email exchanges between Vice

Chair Barrow and Commissioner Zerfuss about Chairman DeFrank’s testimony took place on January

18 and 19, 2024. See Barrow Affidavit, ¶¶ 15-16, R.R. at 59a; Zerfuss Affidavit, ¶¶ 14-15, R.R. at

63a.)

8

PUC’s website. (R.R. at 51a.) Lastly, the PUC explained that, because the Withheld

Records were composed entirely of drafts and email discussions, they could not be

redacted under Section 706 of the RTKL.

In her position statement to the OOR, Requester argued that the PUC’s

partial denial of the Request based on the Section 708(b)(10)(i)(A) exemption was

insufficiently specific and lacked adequate citations to, and discussions of, legal

authority. (R.R. at 75a-78a.) Requester further argued that the Affidavits submitted

by the PUC did not contain sufficient information explaining how the withheld records

contained deliberative information. Id. at 79a. As to the PUC’s search, Requester

argued that there was no evidence establishing that it was conducted in good faith. Id.

at 80a-81a. With regard to the Section 708(b)(10)(i)(A) exemption, Requester

requested that the OOR direct the production of a privilege log and further conduct an

in camera review to determine whether the withheld records were both “predecisional”

and “deliberative” and whether they could be redacted under Section 706 of the RTKL.

Id. at 83a-85a. Requester also requested a hearing. Id. at 85a-86a.

The OOR issued its Final Determination on December 4, 2024, in which

it both denied Requester’s requests for a hearing and/or in camera review and denied

Requester’s appeal in its entirety. As to the requests for a hearing and in camera

review, the OOR concluded that the evidence submitted by the PUC was both sufficient

and credible to address the issues raised by Requester. Id. at 93a. On the merits, the

OOR first concluded that the six Affidavits submitted by the PUC were sufficient to

establish that the PUC conducted a good faith search and that no additional responsive

records were in its possession. Id. at 93a-96a. Specifically, the OOR concluded:

The PUC’s [affidavits] are authored by the PUC’s ORO, the

Chairman of the PUC, the Vice Chair of the PUC, and three

Commissioners of the PUC, who all attest that they

conducted a good faith search and no additional responsive

9

records exist in response to the Request or that responsive

records have been provided to [ORO] Chiavetta[.] The

evidence is credible and is sufficient to meet PUC’s burden

of proof that a good faith search was performed and that no

additional records responsive to the Request exist in its

presence, custody or control.

(R.R. at 96a.)

The OOR secondly concluded that the PUC demonstrated that the

withheld records were exempt from disclosure under Section 708(b)(10)(i)(A) of the

RTKL as reflecting the PUC’s internal, predecisional deliberations. The OOR cited

the portions of the Chiavetta, Barrow, Zerfuss, and DeFrank Affidavits that explained

the nature and content of the withheld records and, after reciting the legal standards

applicable to the Section 708(b)(10)(i)(A) exemption, concluded as follows:

The evidence credibly demonstrates that the [W]ithheld

[R]ecords ([i.e.], draft documents and email discussions) are

internal to the PUC, contain proposed edits and comments

reflecting recommendations or expressing opinions on policy

matters, and relate to a course of action on Vice Chair

Barrow’s [s]tatement on [Pennsylvania American Water

Company’s] Section 1329 Acquisition Application of the

Butler Area Sewer Authority and Chairman DeFrank’s

prepared testimony before the Senate Democratic Policy

Committee. Accordingly, the PUC has demonstrated that the

withheld records contain the internal, predecisional

deliberations of the PUC and are not subject to access under

Section 708(b)(10) of the RTKL.

(R.R. at 99a) (citation omitted).

Requester now petitions for review in this Court.7

7

On May 9, 2025, the PUC filed an Application to Dismiss Requester’s Petition for Review

due to Requester’s failure to timely file a principal appellate brief. By memorandum and order entered

May 19, 2025, this Court granted Requester, nunc pro tunc, an extension of time to file her brief. She

did so on May 23, 2025.

10

II. Issues8

Requester presents three questions for our review: (1) whether the OOR

erred in concluding that withheld draft documents and emails qualify as internal,

predecisional deliberations; (2) whether the OOR erred in concluding that the PUC

carried its burden of proof via the Affidavits; and (3) whether the OOR erred in

concluding that the PUC conducted a good faith search for responsive records.

Requester also seeks attorneys’ fees and civil penalties for bad faith under Section 1304

and 1305 of the RTKL, 65 P.S. §§ 67.1304, 67.1305, arguing that the PUC did not

conduct a “proper and basic search of emails.” (Requester’s Br. at 21.) For relief,

Requester asks the Court to reverse the OOR’s Final Determination or, in the

alternative, remand to the OOR for in camera review or a full evidentiary hearing on

the issues, including bad faith.

8

Our review of appeals from OOR Final Determinations relating to RTKL requests submitted

to Commonwealth agencies is as follows:

Pursuant to Chapter 13 of the RTKL, with respect to appeals relating

to decisions of Commonwealth agencies, this Court is the ultimate

factfinder in RTKL disputes. Section 1301 of the RTKL, 65 P.S. §

67.1301. Accordingly, we owe no deference to the OOR’s legal

analysis or factfinding, as our standard of review of a final

determination of the OOR is de novo. In addition, we are entitled to

the broadest scope of review, covering all justiciable issues raised and

preserved below. Unlike in other administrative agency contexts, we

may substitute our own findings of fact for that of the agency. We have

the discretion to conduct a hearing, or to remand to the OOR, to

supplement the record.

Pennsylvania Office of the Governor v. Brelje, 312 A.3d 908, 932 (Pa. Cmwlth. 2024) (internal

editing, quotations, and most citations omitted). Because we may here conduct our review on the

record from the OOR, we decline to either hold a hearing or remand to the OOR for supplementation

of the record.

11

III. Discussion

A. Good Faith Search

For ease of analysis, we address Requester’s last issue first. Requester

argues that the PUC did not conduct a good faith search for responsive records9 because

it did not conduct its search “through its own technology department, or through the

use of an outside vendor. Rather, PUC simply relied upon each Commission[er]

searching his or her own devices and emails with set parameters.” (Requester Br. at

16.) Requester asserts that the Commissioners’ Affidavits are “conclusory” and do not

indicate whether the “Commissioners who searched their own devices and emails have

special expertise or understanding of forensic computer technology,” whether the

Commissioners “searched deleted or archived messages,” or whether the

Commissioners utilized messaging technology other than emails or text messages. Id.

Requester therefore insists that the PUC has not established that it performed a search

for records that was “designed to reasonably identify and capture responsive records.”

Id. (citing, in part, Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1291-

93 (Pa. Cmwlth. 2014)). Requester posits that, to satisfy its obligation to conduct a

good faith search, the PUC should have (1) identified specific search terms that were

uniform among all of the Commissioners; (2) identified its step-by-step process in

conducting the search; (3) identified the specific government and personal electronic

devices that were searched; and (4) described the details of the search without using

the same “lock-step” language in each of the Commissioners’ Affidavits. Id. at 17-19.

Failing to do these things, Requester argues, constitutes “bad faith.” Id. at 19.

The PUC argues in response that the OOR properly concluded that it

conducted a good faith search that satisfies the requirements of Section 901 of the

9

In her brief, Requester describes the Request as being submitted to the PUC in October 2024.

(Requester Br. at 15.) Requester sent the Request on August 7, 2024. (R.R. at 15a.)

12

RTKL, 65 P.S. § 67.901. The PUC contends that its Affidavits are non-conclusory,

thorough, and sufficiently detailed to explain (1) the role of each Commissioner and

ORO Chiavetta; (2) the scope and method of the searches; (3) the records found; (4)

the deliberative, predecisional nature of the Withheld Records; and (5) that the

Withheld Records were adequately reviewed by ORO Chiavetta and the PUC’s Law

Bureau. (PUC Br. at 33-37.) We agree.

Section 901 of the RTKL provides, in pertinent part, that “[u]pon receipt

of a written request for access to a record, an agency shall make a good faith effort to

determine if the record requested is a public record, legislative record or financial

record and whether the agency has possession, custody or control of the identified

record, and to respond as promptly as possible under the circumstances existing at the

time of the request.” 65 P.S. § 67.901. We’ve expounded on this language and

described an agency’s duty as follows:

Upon receipt of a request, an open records officer must make

a good faith effort to determine whether: (1) the record is a

public record; and, (2) the record is in the possession,

custody, or control of the agency. Section 901 also includes

the duty to perform a reasonable search for records in good

faith. As part of a good faith search, the open records officer

has a duty to advise all custodians of potentially responsive

records about the request, and to obtain all potentially

responsive records from those in possession.

When records are not in an agency’s physical possession, an

open records officer has a duty to contact agents within its

control, including third-party contractors. Under Section

506(d) of the RTKL, 65 P.S. § 67.506(d), the agency is

required to take reasonable steps to secure the records from

the contractor and then make a determination if those records

are exempt from disclosure.

After obtaining all potentially responsive records, an agency

has the duty to review the records and assess their public

13

nature under Sections 901 and 903 of the RTKL. It is

axiomatic that an agency cannot discern whether a record is

public or exempt without first obtaining and reviewing the

record.

Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections, 185 A.3d

1161, 1171-72 (Pa. Cmwlth. 2018) (most internal citations, quotations, and editing

omitted). In determining whether a requested record is public and subject to disclosure,

an agency’s open records officer has a duty to direct RTKL requests to other

appropriate persons in the agency and to inquire of its public officials as to whether

any of them have possession, custody, or control of a responsive record. Mollick v.

Township of Worcester, 32 A.3d 859, 874-75 (Pa. Cmwlth. 2011) (citing In re:

Silberstein, 11 A.3d 629, 633-34 (Pa. Cmwlth. 2011)). After receiving potentially

responsive records, the open records officer then must determine whether any or all of

them are public or exempt from disclosure. Id. at 875.

We agree with the OOR that the PUC established with sufficient evidence

that it conducted a good faith search for responsive records and that no other responsive

records exist. Contrary to Requester’s assertions, the Affidavits submitted by the PUC

are not conclusory or boilerplate. Rather, they specify in detail the searches conducted

by ORO Chiavetta and all five of the PUC Commissioners. They include the date

range of the records searched, the devices searched, the pertinent subject matters, the

individuals conducting the searches, and the chain of custody of the responsive records

found. More specifically, ORO Chiavetta explains in her Affidavit that she instructed

all five PUC Commissioners and their staff to search for emails, texts, or any other

“correspondence” related to any of the identified Section 1329 Acquisition

Applications exchanged among the Commissioners and between them and the other

individuals identified in the Request. (Chiavetta Affidavit, ¶ 3, R.R. at 69a.)

14

In response, all five Commissioners submitted affidavits explaining that

they conducted the requested searches for records, dated in the specified timeframe, in

their PUC Outlook email accounts and their PUC-issued smartphones. Three out of

the five Commissioners found responsive records, and two did not. Those responsive

records are explained in both the Commissioners’ Affidavits and the Chiavetta

Affidavit, and they were turned over to ORO Chiavetta for legal review. Contrary to

Requester’s assertions, the fact that the Affidavits do not recite any utilization of the

PUC’s technology department, describe the Commissioners’ forensic computer

technology expertise, or reveal the use of uniform search terms does not render the

searches or the Affidavits in which they are described insufficient.

As correctly stated by the OOR, “an agency must show, through detailed

evidence submitted in good faith from individuals with knowledge of the agency’s

records, that it has conducted a search reasonably calculated to uncover all relevant

documents.” (R.R. at 94a) (citing, in part, Mollick, 32 A.3d at 875). Here, the Request

identifies (1) specific and pending Section 1329 Acquisition Applications, of which all

of the Commissioners were aware, and (2) particular participants to the requested

communications. The Request therefore was specific enough to permit the

Commissioners to conduct sufficient searches of their devices without utilizing

specialized IT support or specified search terms. Had the Request sought more generic

records reflecting PUC “business” or Commissioner “activity” during a longer

timeframe, Requester’s arguments might carry more weight. Here, however, it is clear

from the Affidavits that both ORO Chiavetta and the five Commissioners knew what

to look for and, based on the information contained in the Affidavits, they did so.

In sum, the searches performed by the Commissioners were specific and

explained in detail in their Affidavits, which were not generic or conclusory. Given

15

the subjects and parameters of the Request, we must conclude that the PUC conducted

a good faith search for responsive records. Requester’s arguments to the contrary are

without merit.

Moreover, although Requester suggests that there might be additional

responsive documents, she has not presented any evidence indicating that anything in

the Affidavits is untrue or incomplete. See McGowan v. Department of Environmental

Protection, 103 A.3d 374, 382-83 (Pa. Cmwlth. 2014) (where there is no evidence that

an agency has acted in bad faith, averments in its affidavits should be accepted as true).

Cf. Department of Labor and Industry v. Earley, 126 A.3d 355 (Pa. Cmwlth. 2015)

(RTKL requester provided direct evidence via personal knowledge that emails sought

in RTKL request existed notwithstanding the Department of Labor and Industry’s

assertions in affidavits that the emails did not exist). Thus, without any evidence

suggesting to the contrary, the OOR did not err in accepting the PUC’s detailed

Affidavits as establishing that no additional responsive records exist.

B. Section 708(b)(10) Exemption for Internal, Predecisional Deliberations

As to Requester’s argument that the PUC failed to carry its burden to

establish that the withheld records are exempt under Section 708(b)(10)(i)(A) of the

RTKL, we begin with the principle that,

[w]hen resolving disputes concerning the public nature of

records sought by a requester under the RTKL, we begin with

a presumption of transparency and construe narrowly the

statutory exemptions from disclosure. Records in the

possession of a Commonwealth agency are presumed to be

public unless they are (1) exempted by Section 708 of the

RTKL, (2) protected by a privilege; or (3) exempted under

any other federal or state law, regulation, or judicial order or

decree.

16

Anand v. Pennsylvania Insurance Department, 329 A.3d 1, 12 (Pa. Cmwlth. 2024)

(citations omitted). An agency receiving a RTKL request bears the burden of proving

that the record is exempt by a preponderance of the evidence. A preponderance of the

evidence is evidence that would lead a factfinder to find that the existence of a

contested fact is more probable than its nonexistence. Office of the District Attorney

of Philadelphia. v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth. 2017).

Relevant and credible testimonial affidavits may be sufficient to satisfy an

agency’s burden to prove the applicability of an exemption from disclosure.

McGowan, 103 A.3d at 381 (citing Heavens v. Department of Environmental

Protection, 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013)). Nevertheless, the affidavits must

be “detailed, nonconclusory, and submitted in good faith,” and “absent evidence of bad

faith, the veracity of an agency’s submissions explaining reasons for nondisclosure

should not be questioned.” Id. (quoting Office of the Governor v. Scolforo, 65 A.3d

1095, 1103 (Pa. Cmwlth. 2013) (en banc)). The affidavits, together with any other

evidence, must be specific enough to permit a court to determine how the production

of withheld records would show that they fell within a proffered exemption. Davis v.

Pennsylvania State Employees Retirement System, 284 A.3d 1307, 1311 (Pa. Cmwlth.

2022) (citing Carey v. Pennsylvania Department of Corrections, 61 A.3d 367, 375-79

(Pa. Cmwlth. 2013)).

We recently described the contours of the Section 708(b)(10)(i)(A)

predecisional deliberations exemption as follows:

Section 708(b)(10)(i)(A) exempts from public disclosure a

record that reflects

[t]he internal, predecisional deliberations of an agency,

its members, employees or officials

or predecisional deliberations between agency members,

employees or officials and members, employees or

officials of another agency,

17

including predecisional deliberations relating to a budget

recommendation, . . . or course of action or any research,

memos or other documents used in

the predecisional deliberations.

65 P.S. § 67.708(b)(10)(i)(A). Thus, to withhold a record

under Section 708(b)(10)(i)(A), an agency must establish

that (1) the contents of the record are internal to the agency;

(2) the contents of the record are deliberative; and (3) the

deliberations reflected are predecisional, i.e., occurred

before an agency decision or course of action. Office of

Governor v. Davis, 122 A.3d 1185, 1193 (Pa. Cmwlth.

2015). See also Kaplin v. Lower Merion Township, 19 A.3d

1209, 1214 (Pa. Cmwlth. 2011).

To establish that the contents of requested records are

deliberative, an agency must establish with specific facts that

they relate to the deliberation of a particular decision.

McGowan, 103 A.3d at 383. The record must make

recommendations or express opinions on legal or policy

matters and cannot be purely factual in nature. Payne [v.

Pennsylvania Department of Health], 240 A.3d [221,] 227

[(Pa. Cmwlth. 2020)]; Kaplin, 19 A.3d at 1214. Further,

although factual material contained in otherwise deliberative

documents is required to be disclosed if it is severable from

its context, see McGowan, 103 A.3d at 382-83, such material

can still qualify as deliberative information if its “disclosure

would so expose the deliberative process within an agency

that it must be deemed excepted” or “would be tantamount

to the publication of the agency’s evaluation and

analysis.” Id. at 387 (citation and quotations omitted)

(bracketing removed). If an agency seeks to establish the

application of this exemption by way of affidavit, the

affidavit “must be specific enough to permit the OOR or this

Court to ascertain how disclosure of the [record] would

reflect the internal deliberations.” Payne, 240 A.3d at

226 (quoting Scolforo, 65 A.3d at 1104).

Anand, 329 A.3d at 15. This exemption is designed to benefit the public, and not the

agencies that assert it, because “if government agencies were forced to operate in a

18

fishbowl, the frank exchange of ideas and opinions would cease and the quality of

administrative decisions would consequently suffer.” McGowan, 103 A.3d at 381

(citation and quotation omitted).

Requester argues that the PUC failed to carry its burden to establish the

applicability of the Section 708(b)(10)(i)(A) exemption because (1) the PUC’s

Affidavits did not specifically indicate whether any of the withheld documents or

emails were not disclosed to third parties; 10 (2) the Affidavits do not establish that the

records relate to the deliberation of a particular decision; and, generally, (3) the PUC’s

Affidavits are “thinly veiled boilerplate statements that amount to a generic

determination or conclusory statement lacking the specificity required by law[.]”

(Requester Br. at 10-14, 15) (citation and internal quotations omitted).11

The PUC argues in response that its six Affidavits sufficiently establish

all three prerequisites of the Section 708(b)(10)(i)(A) exemption, namely, that all of

the Withheld Records (1) are internal to the PUC; (2) predate and concern two PUC

actions or decisions; and (3) are deliberative in their content. We agree.

10

The PUC contends that Requester has waived by failing to include in her petition for review

the argument that the PUC failed to establish the applicability of the Section 708(b)(10)(i)(A)

exemption because it did not specify that the withheld records consisted only of internal

communications. See PUC Br. at 16; see also Pa.R.A.P. 1513(d); Maher v. Unemployment

Compensation Board of Review, 983 A.2d 1264, 1268 (Pa. Cmwlth. 2009). Although the Petition for

Review does not contain this argument verbatim, we think it is fairly subsumed under several other

issues that pertain to the Section 708(b)(10) exemption. See generally Petition for Review, ¶¶ 7-10.

Thus, we decline to find waiver in this respect.

11

In arguing that the Commissioners’ Affidavits were insufficient, Requester asserts that the

OOR erred in concluding that the PUC carried its burden via the Affidavits “since the requested data

already exists, the DOH must query its database and produce it.” (Requester Br. at 12.) Neither the

Department of Health nor any already-existing “data” are at issue in this case.

19

First, Requester’s argument that the PUC’s Affidavits do not establish that

the Withheld Records are “internal” because the Affidavits do not specifically aver that

the records were not forwarded to third parties outside the PUC is without merit. To

be “internal,” records must reflect deliberations either (1) among an agency’s members,

employees, or officials, or (2) between two agencies. Davis, 122 A.3d at 1193;

McGowan, 103 A.3d at 381-82. It is clear from the Affidavits that all of the Withheld

Records are internal communications among three of the PUC Commissioners and/or

their staff concerning the pre-finalized public statement of Vice Chair Barrow and the

draft Senate testimony of Chairman DeFrank. There is no indication that any person

outside of the PUC was copied on the communications or contributed to or commented

on the edits to the drafts. There further is no evidence that any of the emails or drafts

were forwarded on to any outside parties prior to the completion of the final versions.

Second, as to the “deliberative” and “predecisional” requirements,

Requester does not say specifically how the PUC failed to establish either element.

Rather, she argues generally that the PUC’s Affidavits fail “to provide specific facts

showing how the information relates to deliberation of a particular decision.”

(Requester Br. at 12.) We find, however, that the Affidavits are detailed, specific, and

sufficient in both respects. First, as to establishing deliberation, the pertinent Affidavits

together specify that all of the Withheld Records concern either (1) Vice Chair

Barrow’s public statement at a PUC public hearing on November 9, 2023, regarding a

specific Section 1329 Acquisition Application on which the PUC Commissioners

subsequently voted; or (2) Chairman DeFrank’s prepared testimony given to the

Pennsylvania Senate regarding Section 1329 applications generally. The Withheld

Records reflect the edits of, and comments regarding, drafts of those documents

circulated among PUC Commissioners shortly prior to the final versions becoming

20

public.12 The Affidavits also specify when the communications were sent, identify the

senders and recipients, and describe in detail the nature of the communications together

with the drafts and edits that were circulated. (Barrow Affidavit, ¶¶ 11-19, R.R. at 58a-

60a; Zerfuss Affidavit, ¶¶ 10-18, R.R. at 62a-63a; Chiavetta Affidavit, ¶¶ 9-16, R.R. at

70a-71a; DeFrank Affidavit, ¶ 8, R.R. at 55a.) There is no indication that the PUC

withheld purely factual information, and both the drafts themselves and the comments

on them would reflect the PUC Commissioners’ “confidential deliberations of law or

policymaking, reflecting opinions, recommendations, or advice[.]” Smith on behalf of

Smith Butz, LLC v. Pennsylvania Department of Environmental Protection, 161 A.3d

1049, 1067 (Pa. Cmwlth. 2017) (quoting Carey, 61 A.3d at 378). Cf. Payne, 240 A.3d

at 227-28 (raw scores of applicants for medical marijuana grower-processor permits

were not “deliberative” in that they did not disclose evaluation committee’s

deliberations or deliberative process).

As to the “predecisional” requirement, Vice Chair Burrow’s statement

concerning a particular Section 1329 Acquisition Application pending before the PUC

clearly constitutes a “decision” of the PUC Commissioners in its most basic form. See

https://www.puc.pa.gov/pcdocs/1804876.pdf (last visited April 6, 2026). Likewise,

Chairman DeFrank’s Senate testimony, although not strictly a “decision” of the PUC,

was testimony given to the Senate Democratic Policy Committee regarding Section

1329 applications generally, the Section 1329 applications received by and currently

pending before the PUC, and the PUC’s position on current legislative initiatives in the

General Assembly. See https://www.puc.pa.gov/media/2741/defrank-

senate_dempolicycomm_sec1329-012224.pdf (last visited April 6, 2026). Such

testimony fits within the express language of Section 708(b)(10)(i)(A)’s protections

12

The PUC provides links in its brief where the final versions of both Vice Chair Barrow’s

statement and Chairman DeFrank’s testimony may be found. See PUC Br. at 22 n.8.

21

afforded to “deliberations related to a budget recommendation, legislative proposal,

legislative amendment, contemplated or proposed policy or course of action . . . .” 65

P.S. § 67.708(b)(10)(i)(A). See also id. § 67.708(b)(10)(i)(B) (protecting predecisional

deliberations concerning the “strategy to be used to develop or achieve the successful

adoption of a budget, legislative proposal or regulation”).

Last, and contrary to Requester’s characterizations, the Affidavits are

neither boilerplate nor conclusory. They contain adequate detail to permit this Court

“to ascertain how disclosure of the [Withheld Records] would reflect the internal

deliberations” of the PUC Commissioners, and we discern no error on the part of the

OOR in finding them to be sufficient evidence establishing the Section

708(b)(10)(i)(A) exemption. Compare Scolforo, 65 A.3d at 1103-04 (conclusory,

nondetailed affidavits that included a list of subjects to which withheld records might

relate insufficient to establish applicability of predecisional deliberations exemption).

IV. Conclusion

Because we conclude that the PUC conducted a good faith search for

records responsive to the Request and validly asserted and established with adequate

proof the applicability of the Section 708(b)(10)(i)(A) exemption, we affirm the OOR’s

Final Determination.13

________________________________

PATRICIA A. McCULLOUGH, Judge

13

Given our disposition, we need not address Requester’s assertion of bad faith or her

associated requests for attorneys’ fees and civil penalties pursuant to Sections 1304 and 1305 of the

RTKL. For the same reason, we need not address the PUC’s argument that Requester waived those

issues on appeal by failing to include them in her petition for review. (PUC Br. at 16-18.)

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Mutchler, :

Petitioner :

:

v. : No. 1714 C.D. 2024

:

Pennsylvania Public Utility :

Commission (Office of Open :

Records), :

Respondent :

ORDER

AND NOW, this 6th day of April, 2026, it is ORDERED that the

December 4, 2024 Final Determination of the Pennsylvania Office of Open Records

is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge