Township of Worcester v. Office of Open Records

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Worcester :

:

v. : No. 711 C.D. 2015

: Argued: December 7, 2015

Office of Open Records, :

and James Mollick :

:

Appeal of: Office of Open Records :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: January 8, 2016

This appeal involves procedural issues under the Right-to-Know Law

(RTKL).1 In particular, the Office of Open Records (OOR) asks whether the Court

of Common Pleas of Montgomery County (trial court) erred in reversing OOR’s

order that directed the Township of Worcester (Township) to produce, for in

camera inspection, copies of records the Township withheld in response to Dr.

James Mollick’s (Requester) RTKL request as well as an in camera inspection

index, where the Township claimed the records were exempt from disclosure under

the attorney-client and work-product privileges and the predecisional deliberative

exception. Further, as a threshold procedural matter, we are asked whether the trial

court properly determined that OOR’s interlocutory order was an appealable

collateral order over which the trial court had jurisdiction. Upon review, we affirm

the trial court’s determination that OOR’s interlocutory order was an appealable

collateral order. However, we reverse the trial court’s determination that OOR’s

1

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

appeals officer lacked authority to request in camera inspection of the records at

issue or an in camera inspection index or “privilege log” based on the facts

presented here.

I. Background

The parties agree on the following facts. In June 2014, Requester

submitted a request (Request) in accordance with the RTKL for eight sets of

records held by the Township. Reproduced Record (R.R.) at 12a-13a. Shortly

thereafter, the Township obtained a 30-day extension to respond to the Request.

R.R. 14a-15a. Ultimately, the Township granted all but Requester’s seventh

request, which sought emails “with Township Staff regarding meetings with

homeowners association and Brennan Marion regarding transfer of public

improvements of the Stoney Creek Farms development referenced on 2/25/14.”

R.R. at 13a, 16a-19a. In denying this request, the Township explained the records

sought contained internal, predecisional deliberations and were also protected

under the attorney-client and work-product privileges, or the “ethics-based rule of

confidentiality.” R.R. at 17a.

Requester filed an appeal to OOR, challenging the Township’s denial

of access to the requested records. R.R. at 3a-23a. OOR docketed the appeal as

Mollick v. Township of Worcester, OOR Dkt. AP 2014-1179. R.R. at 24a. The

Township submitted a response and memorandum in support of its response to

Requester’s RTKL request, which was supported by a verification signed by the

Township’s open records officer. During the course of the appeal, Requester

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repeatedly asked OOR to conduct an in camera review of records. R.R. at 11a,

R.R. at 209a.2

In September 2014, as part of its fact-finding function, OOR issued an

order directing the Township to produce copies of all records withheld by the

Township for the purpose of conducting an in camera inspection and,

subsequently, issuing a final order as to whether the records are subject to public

access. R.R. at 28a-29a; see Office of Open Records v. Center Twp., 95 A.3d 354,

363-64 (Pa. Cmwlth. 2014) (en banc); see also McGowan v. Pa. Dep’t of Envtl.

Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (ordering OOR to conduct an in camera

review of records). OOR also ordered the Township to provide OOR with three

copies of an in camera inspection index referencing each record at issue by number

and identifying each item within each record that was claimed to be exempt. R.R.

at 28a. In order to accommodate this additional fact-finding, OOR confirmed

Requester’s agreement to an extension of time for OOR to issue a final order. See

Section 1101(b)(1) of the RTKL, 65 P.S. §67.1101(b)(1).

The Township submitted an “Application for an Amendment of an

Interlocutory Order and Position Statement in Opposition of In Camera Review of

Records” to OOR to set forth the statement specified in 42 Pa. C.S. §702(b) so as

2

OOR is an independent, quasi-judicial tribunal charged with, among other duties,

adjudicating appeals of decisions concerning access to records in the possession of

Commonwealth and local agencies under the RTKL. See Sections 1101 and 1310(a) of the

RTKL, 65 P.S. §§67.1101, 67.1310(a); see also Office of Open Records v. Center Twp., 95 A.3d

354, 363-64 (Pa. Cmwlth. 2014) (en banc). OOR is a “Commonwealth agency” as defined by

the RTKL. See Section 102 of the RTKL, 65 P.S. §67.102.

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to permit an interlocutory appeal by permission. R.R. at 30a-45a. OOR denied the

application through an email by OOR’s appeals officer. R.R. at 46a.

Shortly thereafter, the Township filed a document styled a “Petition

for Review of the September 26, 2014 Order of the Office of Open Records in the

Matter of Mollick v. Worcester Township, OOR Dkt. No. AP 2014-1179” with the

trial court. R.R. at 47a-100a. OOR filed a motion to quash the Township’s

petition. R.R. at 101a-09a.

OOR also filed a “Petition to Enforce Order Directing Production of

Documents for In Camera Review” with this Court. R.R. at 110a-298a. By

agreement of the parties, a single judge of this Court transferred that petition to the

trial court. R.R. at 299a. Thereafter, OOR filed an amended motion to quash the

Township’s petition for review in the trial court. R.R. at 300a-06a.

After oral argument, the trial court issued three orders. The first order

denied OOR’s motion to quash. R.R. at 343a. The second order reversed OOR’s

order for production of documents for in camera review and an in camera

inspection index. R.R. at 344a. The third order granted the Township’s motion to

quash an answer to the Township’s petition for review filed by Requester. R.R. at

345a.

OOR subsequently filed two notices of appeal to this Court related to

the trial court’s first two orders, which were docketed at 711 CD 2015 and 712 CD

2015. R.R. at 346a-357a. A single judge of this Court entered an order quashing

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the appeal at 712 CD 2015, stating that only a single notice of appeal was required.

R.R. at 358a-59a.

Thereafter, the trial court issued an opinion in support of its orders in

which it first determined OOR’s order was an appealable collateral order for

purposes of its jurisdiction. The trial court further determined OOR’s order

directing the Township to produce, for in camera inspection, copies of records the

Township withheld in response to Requester’s RTKL request, as well as an in

camera inspection index, was unwarranted under the facts presented here. In so

doing, the trial court distinguished this Court’s decision in Center Township, which

held that OOR has the implied power to conduct in camera inspections, explaining:

Though, [OOR] retains the power to conduct in camera

inspection, the instant case did not warrant the exercise of such

power. Contrary to the response in the Center Twp. case, which

provided nothing more than a bald allegation stating that

privileges prevented disclosure of the documents requested,

here the Township submitted a verified memorandum

supporting its denial of access to the records requested. The

memorandum was verified by F. Lee Mangan, the Open

Records Officer for [the] Township. The memorandum set forth

the legal and factual bases for denying access to the records in

question. This memorandum served the same purposes as

testimonial affidavits frequently used to support denials of

requests. Therefore, the Township presented a document in

support of its decision to deny access.

The verified memorandum maintained that the Township

denied access to records requested by [Requester] in one of his

eight RTKL requests received by [the] Township on June 2,

2014. In his seventh request, [Requester] asked for access to e-

mails with Township Staff regarding meetings with

homeowners association and Brennan Marion regarding the

transfer of public improvements of the Stoney Creek Farms

development referenced on February 25, 2014. [The Township]

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denied access to these records on the primary basis that they

were exempt under the predecisional deliberations exemption of

the RTKL. The Township further denied access to some of the

records under the attorney-client privilege and the work-product

doctrine, inter alia.

[The Township] explained its denial of access to the

records requested in its Verified Memorandum as follows:

Part No. 7 of the Request seeks ‘emails with Township

Staff’ which are ‘referenced in [the Township Solicitor’s]

March 10, 2014 invoice.’ The only emails referenced as

emails ‘with Township staff’ in the Township Solicitor’s

March 10, 2014 invoice are emails between Township

personnel and the Township’s Solicitor. Thus the

Township’s Response indicates, the Request is seeking

emails between a Township consultant (i.e. the Township

Solicitor) and Township Staff which are clearly, internal

to the Township.

As the Township’s Response also indicates, the

potentially responsive emails relate to one or more

proposed courses of action regarding the completion of

improvements, escrow releases and meetings (which had

not yet occurred) prior to any determination being made

on how to proceed. Therefore, the Township has

established all 3 elements necessary to exempt the

potentially responsive records from disclosure under the

internal, predecisional deliberation exemption.

Thus, the Township presented evidence which, if

believed, may be sufficient for [OOR] to sustain the

Township’s denial of [Requester’s] request. [OOR] could

likewise decide that the Township did not carry its burden and

enter an adverse ruling against the Township. [OOR] is

required to decide the case, not to make an unwarranted

demand for an in camera inspection and the creation of an

inspection index. Simply stated, the [OOR] Order compelling

an in camera inspection and the production of an in camera

inspection index was not warranted by the facts of this case.

Tr. Ct., Slip Op., 7/8/15, at 8-10.

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OOR has not issued a final order in the matter of Mollick v. Township

of Worcester, and the appeal remains pending before OOR. This matter is now

before us for disposition.

II. Issues

On appeal,3 OOR argues the trial court committed an error of law by

finding that OOR’s order requiring in camera review of records is a collateral

order. Alternatively, it contends the trial court committed an error of law or

abused its discretion by holding that the Township was not required to provide

records for OOR to conduct an in camera review.

III. Discussion

A. Collateral Order

1. Contentions

OOR first argues that, in erroneously concluding OOR will require

agencies to provide records for OOR’s in camera review in every appeal, the trial

court erred in finding OOR’s order requiring in camera review constituted an

appealable collateral order. As the order is not a collateral order, OOR contends,

the trial court erred as a matter of law in finding jurisdiction over the Township’s

petition for review.

OOR points out that Pa. R.A.P. 313(b) provides for the immediate

right to appeal an order that “is … [(1)] separable from and collateral to the main

3

Our review in a RTKL case where the trial court sits as a reviewing court is whether the

trial court committed an error of law and whether its findings of fact are supported by substantial

evidence. Paint Twp. v. Clark, 109 A.3d 796 (Pa. Cmwlth. 2015).

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cause of action [(2)] where the right involved is too important to be denied review

and [(3)] the question presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.” Id. (clause numbers

added). All elements of this conjunctive, three-prong test must be met in order for

an order to be considered a collateral order. See Rae v. Pa. Funeral Dirs. Ass’n,

977 A.2d 1121 (Pa. 2009).

Applying the three-prong test here, OOR argues that, as to the first

prong, the order at issue must not “implicate the merits of the underlying dispute.”

Commonwealth v. Wright, 78 A.3d 1070, 1077 (Pa. 2013). “[A] claim is

sufficiently separate from the underlying issues for purposes of collateral order

review if it ‘is conceptually distinct from the merits of plaintiff’s claim,’ that is,

where, even if ‘practically intertwined with the merits, [it] nonetheless raises a

question that is significantly different from the questions underlying plaintiff’s

claim on the merits.’” Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa.

2006).

Here, OOR asserts, in the underlying appeal before it, OOR must

answer the question of whether the records sought by Requester are public records.

The order requiring in camera inspection and an inspection index is inherently

entwined with the underlying dispute, as the order requires delivery of the records

to OOR for in camera review and analysis as to whether those records are subject

to public access. Because the most probative and relevant evidence for

determining whether a record is a public record is the actual record at issue, the

order cannot be considered severable from the underlying dispute.

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Next, as to the importance of the right at issue, OOR maintains, in

evaluating whether a right involved in a dispute is too important to be denied

review, our Supreme Court states, “it is not sufficient that the issue be important to

the particular parties[;] [r]ather[,] it must involve rights deeply rooted in public

policy going beyond the particular litigation at hand.” Geniviva v. Frisk, 725 A.2d

1209, 1214 (Pa. 1999).

Here, OOR contends, the Township’s petition for review is primarily

concerned with the Requester in the underlying appeal before the OOR, and that

the Township is being “singled-out” for in camera review. See, e.g., R.R. at 64a at

¶65 (“Singling-out and subjecting [the] Township to in camera review of its

records simply at the request of [Requester] [is] apparently based upon nothing

more than [Requester’s] unfounded allegations of wrongdoing … ”); R.R. at 56a-

58a, ¶¶25-38 (chronicling the history of the Township’s interactions with

Requester and complaints of excessive legal billing). Certainly, these allegations

are uniquely particular to the Township and cannot be considered of significant,

“deeply rooted” public policy concerns.

Based on unfounded fears, OOR argues, the Township grasps at the

wisps of public policy importance by generally claiming OOR will decide to

universally conduct in camera reviews of records in all future cases. OOR asserts

it has neither the desire nor the resources to do so. The overwhelming majority of

cases before OOR do not require in camera review, and it is clear that the General

Assembly, in devising the deadline for issuing final orders, did not anticipate such

review in the majority of cases. See 65 P.S. §67.1101(b)(1). OOR’s intentions are

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evidenced by past practice where in camera review was employed as “a workable

compromise” between the conflicting interests of access to records and the

government’s interests that should only be used when warranted. See Dep’t of the

Air Force v. Rose, 425 U.S. 352, 381 (1976). Far from “singling-out” the

Township, OOR argues, it conducted in camera review approximately 100 times

out of more than 12,000 cases.

OOR maintains the Township does not challenge OOR’s ability to

conduct in camera review of records; rather, it only argues the particular

circumstances of this case do not warrant OOR’s in camera review. R.R. 54a at

¶18; R.R. at 205a. OOR contends that, following guidance from this Court, OOR

seeks only to fulfill its statutory mandate by developing the evidentiary record in

the appeal pending before it in light of legal and factual questions concerning the

records at issue based on the Township’s undeveloped response to OOR during the

appeal. See Office of Governor v. Bari, 20 A.3d 634, 648 (Pa. Cmwlth. 2011)

(“OOR’s reluctance … to perform in camera review of the subject records in this

type of proceeding is confounding” in light of an agency’s “undeveloped

preliminary responses to OOR’s general request for additional information ….”);

see also Harrisburg Area Cmty. Coll. v. Office of Open Records, (Pa. Cmwlth.,

No. 2110 C.D. 2009, filed May 17, 2011), slip op. at 17-18, 2011 WL 10858088 at

*8 (unreported) (“[OOR] has a responsibility to develop a fuller record using the

means granted to it in the RTKL, such as conducting a hearing or examining the

subject records in camera ….”). Because the Township’s concerns are tailored to

its own unique factual circumstances, OOR argues, the order at issue should not be

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considered an appealable collateral order because this matter is not important

enough as to “involve rights deeply rooted in public policy.”

Finally, as to the third prong, OOR contends, the Township must also

show its claims will be irreparably lost if the order is not considered a collateral

order. OOR argues there can be no question that the Township’s allegation that the

records at issue are not subject to public access will be preserved for purposes of

OOR’s eventual final order in this case and potential further review by the trial

court if a party appeals OOR’s final order. To the extent the Township challenges

OOR’s authority to conduct an in camera review of records here, the Township’s

claims may still be raised and resolved in the context of opposing a petition to

enforce brought by OOR. Thus, the Township has not presented any claims that

will be irreparably lost if the order is not treated as a collateral order.

In sum, OOR contends, as the Township has not met any of the three

prongs under Pa. R.A.P. 313(b) for determining whether the order is a collateral

order, the trial court lacked jurisdiction over this matter and its order should be

reversed.

The Township responds that OOR’s order is an appealable collateral

order. It argues the trial court succinctly laid out the framework for determining

whether or not the order is a collateral order under Pennsylvania law. The

Township contends that, in its brief, OOR goes to great lengths to challenge the

trial court’s finding that OOR’s order, which demands that the Township produce

records for in camera review and create an in camera inspection index is a

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collateral order. In short, the Township maintains, OOR argues: (1) the order is

not severable from the underlying dispute because it requires delivery of the

records at issue to OOR for in camera review to determine whether these records

are subject to public access”; (2) the order does not involve an important right

because “OOR has neither the desire nor the resources” to “universally conduct in

camera reviews of records in all future cases[,]” Br. of Appellant at 15; and, (3) the

Township’s claims will not be lost because, “to the extent that the Township

challenges … OOR’s authority to conduct an in camera review in this matter, the

Township’s claims may still be raised and resolved in the context of opposing a

Petition to Enforce brought by the OOR.” Br. of Appellee at 10. The Township

argues OOR’s reasoning is disjointed and untenable.

As to severability of the order from the underlying matter, the

Township points out that OOR argues, “the most probative and relevant evidence

for determining whether a record is a public record is the actual record at issue”

and, therefore, the order “cannot be considered severable from the underlying

dispute.” Br. of Appellant at 13-14. The Township contends the necessary

implication of OOR’s argument is that, in all appeals, review of the records

requested is required to determine whether those records are subject to public

access. On the other hand, when addressing (and downplaying) the importance of

the Township’s rights, OOR claims, contrary to its own earlier reasoning regarding

the importance of the records at issue as evidence, “the overwhelming majority of

cases before the OOR do not require in camera review [of records], and it is clear

that the General Assembly, in devising the deadline for issuing final orders, did not

anticipate such review in the majority of cases.” Br. of Appellant at 15. The

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Township argues it appears that OOR is arguing against its own reasoning. The

inconsistency of those positions is obvious.

The Township further maintains the order at issue here is a collateral

order. As set forth in trial court’s opinion, our Supreme Court holds that

interrelationship between merits issues and the question sought to be raised in the

interlocutory appeal involving a collateral order is tolerable. See Pridgen. Further,

the trial court’s reasoning regarding severability of the order from the underlying

matter is simple and logical. Clearly, the Township contends, the issue of whether

records are subject to in camera review is severable and significantly different

from the underlying matter of whether records are subject to disclosure.

The Township asserts OOR completely misses the mark as to the

importance of the rights at issue here. The Township reiterates the trial court’s

reasoning regarding this prong.

The Township points out that OOR suggests it has neither the desire

nor the resources to “universally conduct in camera reviews of all records in future

cases.” Br. of Appellant at 15. However, if, in camera review is appropriate and

warranted in this case–where the record is sufficiently developed–then in camera

review is warranted, appropriate and required in all appeals before OOR whenever

requested by a party to the appeal. Not only will OOR (and requesters) have the

ability to burden agencies by requesting submission of documents and the creation

of indices where the record is ripe for disposition, agencies will have the ability,

and right, to burden OOR by not responding to any requests for records and, in

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every appeal, demand OOR conduct in camera review of records in lieu of

responding to the appeal. Thus, the procedural framework of responding to

requests for records set forth in the RTKL will be rendered meaningless–agencies

will be incentivized to ignore requests for records and simply demand in camera

review on appeal–and, of course, regardless of how well the record is developed,

OOR will be forced to comply with all demands for in camera review to avoid

abusing its discretion and arbitrarily deciding when in camera review is

appropriate. Clearly, the Township asserts, the public policy implications at issue

in this matter are of great importance.

The Township further asserts OOR’s reasoning that the Township’s

claims will not be irreparably lost because the Township can challenge OOR’s

authority to conduct an in camera review of records in this matter in the context of

opposing a petition to enforce filed by OOR is a patently absurd non sequitur. The

analysis is whether the question presented is such that, if review is postponed until

final judgment in the case, the claim will be irreparably lost. Pa. R.A.P. 313(b).

Thus, whether or not the Township’s claims will be irreparably lost does not hinge

on the ability of another party–in this case OOR–to file another pleading and

litigate it to its conclusion. Rather, the question is whether the Township’s claims

will be irreparably lost by OOR issuing a final determination in this matter–to

which the answer is emphatically yes.

Moreover, the Township argues, its “claims” are not limited to

whether OOR has authority to conduct an in camera review in this particular case.

The Township’s claims are grounded in public policy concerns: when is the

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significant expense of complying with an in camera review and preparation of a

privilege log appropriate and warranted in any appeal before OOR?

2. Analysis

Pursuant to Rule 313(a) of the Pennsylvania Rules of Appellate

Procedure, “[a]n appeal may be taken as of right from a collateral order of an

administrative agency or lower court.” Rule 313(b) defines a “collateral order” as

one that is “[(1)] separable from and collateral to the main cause of action [(2)]

where the right involved is too important to be denied review and [(3)] the question

presented is such that if review is postponed until final judgment in the case, the

claim will be irreparably lost.” Pa. R.A.P. 313(b) (clause numbers added).

The collateral order doctrine must be narrowly construed, and all three

prongs must be met before collateral appellate review is allowed. Rae. “Narrow

application prevents the collateral order rule from subsuming the fundamental

general precept that only final orders are appealable and from causing litigation to

be interrupted and delayed by piecemeal review of trial court decisions.” Brophy

v. Phila. Gas Works & Phila. Facilities Mgmt. Corp., 921 A.2d 80, 87 (Pa.

Cmwlth. 2007). If “an order satisfies Rule 313’s three-pronged test,” we “may

exercise appellate jurisdiction where the order is not final.” Rae, 977 A.2d at

1125.

In determining whether an order is separable from and collateral to the

main cause of action, we must first decide whether review of the order implicates

the merits of the main cause of action. Wright. In other words, we examine

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“whether the issues appealed can be addressed without analysis of the underlying

claims on the merits.” Brophy, 921 A.2d at 87. Where review of the order at issue

does not implicate or affect the merits of the underlying dispute, it is separable

from and collateral to the main cause of action. Wright. With regard to

separability, our Supreme Court “has adopted a practical analysis recognizing that

some potential interrelationship between merits issues and the question sought to

be raised in the interlocutory appeal is tolerable.” Pridgen, 905 A.2d at 433

(citations omitted). “This standard is more permissive than the previous standard

adopted by Pennsylvania courts, which required that, in order to meet the

separability test, the order could ‘not relate in any way’ to the merits of the

underlying action.” 20 Darlington et al., PENNSYLVANIA APPELLATE PRACTICE

§313:2 (2014-15 ed.).

As to the second prong, “[a]n issue is important if the interests that

would potentially go unprotected without immediate appellate review of that issue

are significant relative to the efficiency interests sought to be advanced by the final

judgment rule.” Geniviva, 725 A.2d at 1213 (citation omitted). “[I]t is not

sufficient that the issue be important to the particular parties. Rather[,] it must

involve rights deeply rooted in public policy going beyond the particular litigation

at hand.” Id. at 1214.

Finally, as to the third prong, we ask “whether a right is ‘adequately

vindicable’ or ‘effectively reviewable.’” Id. at 1213 (quoting Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 878-79 (1994)). This question “cannot be

answered without a judgment about the value interests that would be lost through

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rigorous application of a final judgment requirement.” Id. For instance, the

substantial cost a party would incur in defending a claim may equate to an

irreparable loss of a right to avoid the burden entirely. See Pridgen.

Here, the trial court determined OOR’s interlocutory order requiring

the Township to produce for in camera inspection the records sought by Requester

and an in camera inspection index constituted an appealable collateral order under

Pa. R.A.P. 313(b). No error is apparent in the trial court’s determination.

Specifically, as to the first prong, whether the order is separable from

and collateral to the main cause of action, the trial court explained that a claim is

sufficiently separate from the underlying issues for purposes of collateral order

review if it is conceptually distinct from the merits of the plaintiff’s claim.

Pridgen. That is, where, even if practically intertwined with the merits, it

nonetheless raises a question that is significantly different from the questions

underlying a plaintiff’s claim on the merits. Id. In analyzing the separable nature

of a claim, our Supreme Court recognizes that some potential interrelationship

between merits issues and the question sought to be raised in the interlocutory

appeal is tolerable. Id.

Here, the underlying question in Requester’s case is whether the

records responsive to Requester’s seventh request are subject to disclosure under

the RTKL, or whether a privilege or exemption bars disclosure. The order directly

at issue in this appeal presents a question of whether OOR erred in requiring the

Township to provide an in camera inspection index and to submit all records

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responsive to Requester’s seventh request to OOR’s appeals officer for in camera

review. As the trial court explained, the fact that the issues involved in the

underlying litigation and the instant appeal are conceptually distinct is illustrated

by the fact that an order reversing OOR’s order does not directly implicate the

merits of the underlying case. Thus, the practical effect of the trial court’s order

reversing OOR’s order was to conclude OOR had a sufficient factual record before

it to decide the underlying dispute. As a result, although this issue is, to some

extent, intertwined with the merits of the underlying case, the question presented in

this appeal is conceptually distinct from that presented by the underlying litigation.

As to the second prong, whether the right involved is too important to

be denied review, an issue is considered important if the interests that would

potentially go unprotected without immediate appellate review of the issue are

significant relative to the efficiency interests sought to be advanced by the final

judgment rule. Geniviva. It is not sufficient that the issue be important to the

particular parties; rather, the issue must involve rights deeply rooted in public

policy going beyond the particular litigation at hand. Id. The issue here concerns

OOR’s authority to request in camera inspection of records and an inspection

index or “privilege log.” Because a decision further delineating OOR’s authority

to require in camera inspection of records has the potential to extend well beyond

the confines of this particular case, the right involved is too important to be denied

review, satisfying the second prong.

Finally, as to the third prong, whether the question presented is such

that if review is postponed until final judgment, the claim will be irreparably lost,

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if in camera review and creation of an in camera inspection index or “privilege

log” is required here, the issue of whether OOR can require in camera review

notwithstanding an affidavit supporting a claimed privilege or exemption is likely

to be irreparably lost if the Township prevails on the merits before OOR. In such a

circumstance, the Township will not be aggrieved, and it would not have standing

to appeal further. Additionally, the Township would be required to bear the

expense of creating an inspection index or “privilege log.”

For all these reasons, the trial court correctly determined OOR’s order

in this case is a collateral order under Pa. R.A.P. 313(b) and, as a result, the trial

court had jurisdiction over the Township’s appeal.

B. In Camera Review

1. Contentions

OOR also contends the trial court committed an error of law and

abused its discretion in holding the Township is not required to submit records to

OOR for in camera review. It argues that, even if the trial court had jurisdiction

here, its order should be reversed because it abused its discretion and misapplied

the law by: (1) ignoring the wide discretion afforded to OOR appeals officers; and,

(2) improperly assessing the evidence presented by the Township prior to issuance

of a final order by OOR.

Under the RTKL, OOR is charged with developing an evidentiary

record before its appeals officers to ensure meaningful appellate review. See Pa.

Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1121 (Pa. Cmwlth. 2015). In so doing,

“the RTKL grants appeals officers wide discretion with respect to procedure ….”

19

Bowling v. Office of Open Records, 75 A.3d 453, 467 (Pa. 2013). OOR asserts

this Court recognizes OOR is charged with the duty to determine whether a

privilege is applicable, and it is obligated to rule on all procedural issues related to

disposition of the matter.

OOR maintains that in Center Township, this Court reasoned that

appeals officers have the authority to conduct in camera review “to better enable

appeals officers to develop an adequate record for judicial review, and at the same

time, to render an informed and reasoned decision—one that is based upon a

sufficient factual predicate—especially with regard to matters concerning

privileged or sensitive material.” Bagwell, 114 A.3d at 1121 (quoting Center

Twp.).

OOR argues the facts here are indistinguishable from those in Center

Township, where this Court held OOR properly exercised its discretionary power

to order in camera review of records. In that case, as here, a township alleged

records were protected under the attorney-client privilege and made a submission

on appeal to OOR. OOR asked the township to produce a privilege log identifying

which records were withheld from public access based on attorney-client privilege.

On the application of the requester, OOR issued an order requiring the township to

provide the allegedly privileged records for OOR’s in camera review. The

township in that case, just like the Township here, refused to provide either a

privilege log or the records for OOR’s in camera review.

OOR argues that, because its appeals officers are vested with wide

discretion to determine whether in camera review of records is necessary and the

20

instant matter is indistinguishable from Center Township, the trial court erred in

failing to recognize OOR’s discretionary power to order in camera review.

Similarly, OOR asserts, the trial court erred by allowing the Township

to shortcut the appeals process here. To that end, under the RTKL, OOR

adjudicates appeals concerning denials of access to records. After OOR issues a

final order, parties are statutorily entitled to appeal to reviewing courts. On appeal,

courts may, in reviewing a final order, accept new evidence and conduct de novo

review. Here, because, as discussed above, OOR has yet to issue a final order, the

trial court erred in allowing the Township to “leapfrog” OOR’s fact-finding and

adjudicatory functions as mandated by the RTKL.

The Township acknowledges and agrees that, under this Court’s

holding in Center Township, OOR has authority to conduct in camera review of

records where appropriate and when warranted. The Township argues that in

Center Township, this Court did not, however, expressly provide a test for when in

camera review is “appropriate and warranted.” As set forth in the trial court’s

well-reasoned opinion:

[T]he Township presented evidence which, if believed, may be

sufficient for [OOR] to sustain the Township’s denial of

[Requester’s] request. [OOR] could likewise decide that the

Township did not carry its burden and enter an adverse ruling

against the Township. [OOR] is required to decide the case, not

to make an unwarranted demand for an in camera inspection

….

Tr. Ct., Slip Op., at 9. In short, the Township argues, OOR abused its discretion by

ordering the Township to produce records for in camera inspection and further

21

abused its discretion by ordering the Township to produce an in camera inspection

index. Thus, this Court should affirm the trial court’s order.

The Township contends there must be reasonable limits on what

“when appropriate and warranted” means, or OOR will be inundated with requests

for in camera reviews and privilege logs in every case where a public record is

deemed exempt or redacted.

The Township argues OOR’s position appears to be that, under Center

Township, OOR appeals officers are vested with the discretion and authority to

order in camera review of records in any appeal before OOR on request by any

party to the appeal. If OOR’s position is correct, then every step of the procedure

for responding to a request for records under the RTKL–including but not limited

to, the step of an agency rendering a substantive response to a request and the step

of an agency issuing a verified position statement or affidavit in support of its

substantive response to a requester which is on appeal to OOR–is rendered

meaningless. And, instead of spending time, effort and taxpayer money on careful

responses to RTKL requests and affidavits or verified position statements in

support of denials of access to records appealed to OOR, agencies should simply

ignore requests for records under the RTKL and demand OOR conduct in camera

review of records if a “deemed denial” is appealed by a requester. Then, if an

agency is unhappy with OOR’s decision, the agency can simply appeal to a court

with jurisdiction for de novo review. The Township maintains neither the General

Assembly, nor this Court, intended for OOR to be a records clearinghouse for

every agency in the Commonwealth.

22

The Township reiterates the trial court’s reasoning on this issue.

Moreover, it asserts, contrary to OOR’s allegation that the Township

“leapfrogged” OOR’s fact-finding and adjudicatory functions, the trial court

expressly left the question of whether or not the records at issue in the underlying

appeal before OOR are subject to disclosure for OOR to decide.

The Township further argues OOR fails to recognize the fundamental

distinguishing fact between Center Township and this case: in Center Township,

the agency baldly alleged a privilege applied whereas, here, the Township

expressly provided reasoning as to why the records are exempt from disclosure by

way of a verified, non-conclusory position statement. Nowhere in any pleading or

otherwise did OOR allege bad faith by the Township. Thus, the record before

OOR in the underlying appeal must be sufficiently developed for OOR to issue a

final determination.

In sum, the Township contends, OOR has not provided sufficient

evidence to show the trial court committed an error of law or abused its discretion.

OOR does not have unlimited authority to demand production of records or a

privilege log for in camera review of records. Rather, in camera review is only

appropriate and warranted when the record is undeveloped. The Township asserts

that OOR baldly argues the record before it in the underlying appeal here is

“undeveloped,” but it completely avoids any analysis of how or why the record

before it is “undeveloped.” Br. of Appellee at 20. Because, in part, the Township

provided a detailed, non-conclusory position statement, the trial court found the

23

record before OOR in the underlying appeal is sufficient for OOR to issue a final

determination. For the reasons set forth above, this Court should affirm the trial

court. Also, the Township contends, the trial court recognized the financial impact

on agencies if OOR is given unfettered discretion to require in camera review and

production of privilege logs where: (1) those rights have been implied (but not

expressly stated) under the RTKL; and (2) where the record is sufficiently

developed to permit a decision on the merits by OOR.

2. Analysis

As more fully explained below, the trial court erred in two ways. First

and foremost, the trial court abused its discretion in second-guessing the fact-

finder’s efforts to create a record appropriate for appellate review. Further, the

trial court erred legally by accepting the Township’s flawed analysis of the

predecisional deliberative exception.

One of an appeals officer’s duties under Chapter 11 of the RTKL is to

develop an adequate factual record on appeal. Bagwell (citing Levy v. Senate of

Pa., 94 A.3d 436, 442 (Pa. Cmwlth.), appeal denied, 106 A.3d 727 (Pa. 2014)

(“[i]n the ordinary course of RTKL proceedings [receipt of evidence] will occur at

the appeals officer stage and a reviewing court will defer to the findings of the

appeals officer.”) (citing Bowling)).

An appeals officer functions as the initial fact-finder, and acts in a

quasi-judicial capacity pursuant to Section 1102 of the RTKL. Center Twp.

(appeals officer may conduct in camera review to perform fact-finding functions);

Levy (appeals officer receives evidence to resolve factual disputes as reviewing

24

courts rarely act as fact-finder); see also Dep’t of Labor & Indus. v. Heltzel, 90

A.3d 823 (Pa. Cmwlth. 2014) (remanding to OOR as initial fact-finder to consider

application of exemption in the first instance). In these circumstances, it is

incumbent upon an appeals officer to create an adequate factual record in order to

issue a determination. 65 P.S. §67.1102(a); Bagwell.

Moreover, an appeals officer should consider procedural matters as

the fact-finder in the first instance. Center Twp.; Bagwell v. Dep’t of Educ, 76

A.3d 81 (Pa. Cmwlth. 2013) (en banc). In Center Township, we reasoned that

appeals officers had the authority to conduct in camera review “to better enable

appeals officers to develop an adequate record for judicial review, and at the same

time, to render an informed and reasoned decision ….” Center Twp., 95 A.3d at

370.

Thus, appeals officers are empowered to develop the record to ensure

Chapter 13 courts may perform appellate review without the necessity of

performing their own fact-finding. Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113,

1121 (Pa. Cmwlth. 2015); Center Twp.; Levy.

In Center Township, the township partially denied an RTKL request

seeking the township solicitor’s invoices. Specifically, the township redacted

portions of the invoices allegedly pertaining to litigation services on the grounds

the redacted portions concerned the progress and avenues explored in litigation and

litigation-related issues and, as such, were exempt from disclosure under the

attorney-client privilege or work-product doctrine. The requester appealed to OOR

25

and asked that OOR conduct in camera review of the documents. OOR directed

the township to provide a privilege log identifying each record withheld and

explaining why a privilege applied to each redacted entry. The township declined

to do so. OOR subsequently granted the requester’s request for in camera review

and directed the township to produce for in camera review unredacted copies of all

responsive records withheld. The township refused, asserting OOR lacked

statutory authority to compel and undertake in camera review.

Thereafter, OOR filed a petition to enforce its order in this Court,

seeking an order compelling the Township to produce the records in unredacted

form for in camera inspection. After undertaking a thorough examination of case

law concerning the availability and benefits of in camera review, a unanimous en

banc panel of this Court rejected the township’s argument that OOR lacked

authority to conduct in camera review.

Thus, in camera review is appropriate to assess claims of privilege

and predecisional deliberations. See, e.g., Bagwell v. Dep’t of Educ., 103 A.3d

409 (Pa. Cmwlth. 2014) (en banc). Additionally, review of an index or “privilege

log” of withheld records may be proper in determining whether records are exempt

from disclosure. Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth.

2013).

Moreover, while testimonial affidavits found to be relevant and

credible may provide sufficient evidence in support of a claimed exemption, id.,

conclusory affidavits, standing alone, are insufficient to prove records are exempt.

26

Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (en banc);

Carey v. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013).

In light of our decision in Center Township, OOR’s appeals officer

acted within his broad discretion here in requesting that the Township produce the

records at issue for in camera inspection as well as an in camera inspection index

referencing each record by number and identifying each item within each record

that is claimed to be exempt. This conclusion is directly supported by our decision

in Center Township. More particularly, in this case: (1) Requester made a request

for OOR to conduct in camera review of the records at issue, see R.R. at 11a, 209a;

(2) the Township submitted a verified memorandum to OOR in which it asserted

the records at issue were exempt under, among other things, the predecisional

deliberative exception, but, as set forth more fully below, did not fully or correctly

discuss or analyze this exception; and, (3) the Township refused to provide an

index or “privilege log.”

Based on these circumstances, OOR’s appeals officer was within his

authority to direct the Township to produce the records at issue for in camera

inspection and, at a minimum, an in camera inspection index or “privilege log.”

We defer to OOR’s appeals officer, the initial fact-finder, on this procedural issue

rather than second-guess his attempt to adequately develop a record beyond the

intertwined assertions of fact and law set forth in the Township’s verified

memorandum of law on issues such as the predecisional deliberative exception.4

4

See Section 1102(b)(3) of the RTKL (“In the absence of a regulation, policy or

procedure governing appeals under this chapter, the appeals officer shall rule on procedural

matters on the basis of justice, fairness and the expeditious resolution of the dispute.”); Levy

(Footnote continued on next page…)

27

Further, the predecisional deliberative exception set forth in Section

708(b)(10)(i) codifies the deliberative process privilege. Section 708(b)(10)(i)

exempts from disclosure:

(10)(i) A record that reflects:

(A) The 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, including predecisional

deliberations relating to a budget recommendation,

legislative proposal, legislative amendment,

contemplated or proposed policy 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). “According to the language of Section 708(b)(10)(i)[A],

protected records must be predecisional and deliberative.” Kaplin v. Lower

Merion Twp., 19 A.3d 1209, 1214 (Pa. Cmwlth. 2011).

Thus, in order to establish the predecisional deliberative exception,

the Township was required to show that the information is: (1) internal; (2) prior to

agency decision or course of action; and, (3) deliberative in character. Scolforo.

“Only … confidential deliberations of law or policymaking, reflecting opinions,

recommendations or advice [are] protected as ‘deliberative.’” Carey, 61 A.3d at 378.

(continued…)

(citing Bowling) (describing success of administrative regime of RTKL; concluding most

disputes will end at appeals officer level); see also Bowling, 75 A.3d at 477 (concurring op. by

Saylor, J., favoring wide latitude in appeals officer discretion and deference to administrative-

level developments); id. at 478-79 (dissenting op. by Castille, C.J., expressing concern about

fact-finding in the Commonwealth Court in RTKL cases).

28

Factual information is not deliberative in character. McGowan (remanding to

OOR to assess factual content and direct disclosure of same in redacted form).

To qualify for exemption under the predecisional deliberative

exception, an agency must explain how the information withheld reflects or shows

the deliberative process in which an agency engages during its decision-making.

Carey. Agencies may meet this burden by submitting an affidavit that sets forth

sufficient facts enabling a fact-finder to draw its own conclusions. Id.

Here, in its verified memorandum, the Township misidentified the

required elements to establish the predecisional deliberative exception. See R.R. at

157a. Further, the Township cited no authority in support of the purported test it

set forth to establish this exception. Id. More importantly, the Township’s

discussion of the predecisional deliberative exception omitted reference to the third

element, that the information is deliberative in character. R.R. at 157a-58a.

Rather, the conclusory statements regarding the predecisional deliberative

exception in the memorandum are strikingly similar to statements this Court

previously held were insufficiently specific to establish records were exempt under

the predecisional deliberative exception. See Scolforo, 65 A.3d at 1104 (“It is not

enough to include in the [a]ffidavit a list of subjects to which internal deliberations

may have related. The [a]ffidavit must be specific enough to permit [OOR] or this

Court to ascertain how disclosure of the entries would reflect the internal

deliberations on those subjects.”)

29

Based on the Township’s failure to more completely address the key

element of the predecisional deliberative exception, that the information is

“deliberative in character,” it was entirely appropriate for OOR’s appeals officer to

request in camera review of the records at issue or an in camera inspection index

or “privilege log.” In short, it is simply unclear from the Township’s verified

memorandum whether the records at issue are exempt from disclosure under the

predecisional deliberative exception. Thus, OOR’s appeals officer acted well

within his authority in requesting more information under these circumstances.

For the foregoing reasons, we reject as entirely without merit the

Township’s strained arguments of OOR misusing its authority to direct in camera

review. If anything, we express concern about the potential for an agency to by-

pass OOR as the fact-finder in the first instance and seek a more receptive

audience in a Chapter 13 court. Thus, we reverse the trial court’s order to the

extent it reversed OOR’s order.

Having now confirmed the law in this area, it is hard to imagine any

significant public policy interest supporting judicial review of non-final OOR

orders which seek to create an adequate record. In other words, it would be a very

rare case which would support interlocutory review of an OOR order similar to the

one here.

ROBERT SIMPSON, Judge

Judge Cohn Jubelirer concurs in the result only.

30

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Worcester :

:

v. : No. 711 C.D. 2015

:

Office of Open Records, :

and James Mollick :

:

Appeal of: Office of Open Records :

ORDER

AND NOW, this 8th day of January, 2016, the order of the Court of

Common Pleas of Montgomery County at No. 2014-27790, dated March 27, 2015,

that denied the Office of Open Records’ Amended Motion to Quash Appeal is

AFFIRMED. The order of the Court of Common Pleas of Montgomery County at

No. 2014-27790, dated March 27, 2015, that reversed the September 26, 2014

Order of Office of Open Records Order in James Mollick v. Township of

Worcester, OOR Dkt. No. AP 2014-1179 is REVERSED. This matter is

remanded to the Court of Common Pleas of Montgomery County for further

remand to the Office of Open Records for proceedings consistent with the

foregoing opinion.

Jurisdiction is relinquished.

ROBERT SIMPSON, Judge