DOC v. B. Fiorillo

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Corrections, :

Petitioner :

:

v. : No. 1043 C.D. 2016

: Submitted: November 23, 2016

Ben Fiorillo, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: May 1, 2017

The Department of Corrections (Department) petitions for review of a June

2, 2016 Final Determination of the Pennsylvania Office of Open Records (OOR),

requiring the Department to produce certain documents responsive to a request

made by Ben Fiorillo (Requester) pursuant to the Right-to-Know Law1 (RTKL).

The Department maintains the records are protected from disclosure by the

attorney-client privilege, the attorney work product doctrine, and/or the

predecisional, internal deliberations exception. For the reasons set forth herein, we

affirm in part and reverse in part.

1

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

I. Background

On December 19, 2014, Requester submitted a request to the Department

seeking, inter alia, communications between Department officials “pertaining to

inmate health problems” at the State Correctional Institution – Fayette (SCI-

Fayette) and communications between Department officials and the Department of

Health “pertaining to the review of SCI-Fayette inmate medical records.” (R.R. at

2a-3a.) Following an extension, the Department denied the request in its entirety,

citing nine grounds for exemption, including, inter alia, the attorney-client

privilege, the attorney work product doctrine, and the predecisional, internal

deliberations exception. (R.R. at 4a-7a.)

Requester appealed to OOR on February 13, 2015. (R.R. at 1a, 34a.) On

February 27, 2015, the Department submitted its position statement and amended

response. (R.R. at 40a-173a; R.R. 1c-137c.2) Along with the amended response,

the Department produced a number of documents it determined were responsive,

along with affidavits by Susan McNaughton, Department press secretary;

Christopher Oppman, director of the Bureau of Health Care Services; and Chase

M. Defelice, assistant counsel for the Department, claiming the documents either

did not exist or fell within one of the previously asserted exceptions and therefore

were being withheld. (Id.) On March 26, 2015, OOR directed the Department to

produce the documents in question for in camera review. (R.R. at 175a.) Pursuant

to that order, the Department provided OOR with the requested documents and an

in camera inspection index. (R.R. at 180a-96a.)

2

References to the Second Supplemental Certified Record, which is contained in the

Reproduced Record, are indicated by the letter “c.”

2

OOR issued its Final Determination on June 2, 2016, granting in part,

denying in part, and dismissing as moot in part Requester’s Appeal. OOR

dismissed the appeal as moot to the extent it dealt with documents that the

Department produced during the pendency of the appeal. (Final Determination at

4.) It concluded three documents (Items 14, 61, and 64) were not protected by the

attorney-client privilege or attorney work product doctrine and ordered those

documents be disclosed. (Id. at 4-6.) In addition, OOR found the Department

failed to meet its burden of proof that the remaining documents constituted

internal, predecisional deliberations, with limited exception. (Id. at 6-8.) As such,

OOR ordered the Department to produce the records within 30 days. It is from this

decision that the Department now appeals.3

On appeal, the Department argues OOR erred by ordering access to the

emails. Specifically, it argues Items 61 and 64 consist of legal counsel’s

instructions and analysis directed to Department staff, which is protected by the

attorney-client privilege and/or work product doctrine.4 The Department also

argues that Items 1-12, 15-35, 38-41, and 43-67 are deliberative in nature in that

Department staff discussed planning and strategy, and are therefore protected as

predecisional, internal communications.

In response, Requester argues the Department failed to satisfy its burden of

proving either privilege or exception applies. He argues there is no evidence that

the withheld emails contain legal advice or were created for the purpose of

3

On appeal, our standard of review is de novo, meaning we may substitute our own fact-

finding for that of OOR, and our scope of review is broad or plenary. Bowling v. Office of Open

Records, 75 A.3d 453, 477 (Pa. 2013).

4

The Department is not challenging OOR’s determination that Item 14 is not protected

by the attorney-client privilege or work product doctrine.

3

obtaining legal advice. Nor do the emails contain mental impressions of the

Department’s counsel. As for the remaining emails, Requester claims the

Department’s own filings indicate that the emails primarily concern the gathering

of factual information for the purpose of issuing a press release, which does not

implicate the Department’s decisions regarding law or policymaking.

II. Discussion

Under Section 305(a) of the RTKL, there is a presumption that all records5

in the possession of a Commonwealth agency are public records unless: (1) the

record is exempt under Section 708 of the RTKL; (2) the record is protected by a

privilege; or (3) the record is exempt from disclosure under any other federal or

state law or regulation or judicial order or decree. 65 P.S. § 67.305(a). The burden

falls on the Commonwealth agency to prove, by a preponderance of the evidence,6

that the record is exempt from disclosure. Section 708(a)(1) of the RTKL, 65 P.S.

§ 67.708(a)(1). One method of satisfying this burden is producing affidavits that

provide justification for any claimed exemption. Office of Governor v. Scolforo,

5

A record is defined under the RTKL as:

[i]nformation, regardless of physical form or characteristics, that documents a

transaction or activity of an agency and that is created, received or retained

pursuant to law or in connection with a transaction, business or activity of the

agency. The term includes a document, paper, letter, map, book, tape, photograph,

film or sound recording, information stored or maintained electronically and a

data-processed or image-processed document.

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

6

A preponderance of the evidence is such evidence as would lead a factfinder to find that

the existence of a contested fact is more probable than the nonexistence of the contested fact. Pa.

Office of Attorney Gen. v. Bumsted, 134 A.3d 1204, 1210 n.12 (Pa. Cmwlth. 2016); Pa. State

Troopers Ass’n v. Scolforo, 18 A.3d 435, 438-39 (Pa. Cmwlth. 2011).

4

65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (Scolforo I). However, conclusory

affidavits alone will not satisfy the burden of proof an agency must sustain to show

that a requester may be denied access to records under the RTKL. McGowan v.

Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014); Heavens v. Pa.

Dep’t of Envtl. Prot., 65 A.3d 1069, 1074 (Pa. Cmwlth. 2013). Furthermore,

because the RTKL is considered remedial in nature and was “designed to promote

access to official government information in order to prohibit secrets, scrutinize the

actions of public officials, and make public officials accountable for their actions,”

Pennsylvania State Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014), in

evaluating whether a record is exempt from disclosure, the exemptions must be

narrowly construed so as not to frustrate the RTKL’s remedial purpose, Scolforo I,

65 A.3d at 1100.

A. Internal, predecisional deliberation exemption

As stated above, a record that fits one of the enumerated exceptions in

Section 708 of the RTKL is not presumed to be a public record subject to

disclosure. 65 P.S. § 67.305(a). Relevant to this case is the exception found in

Section 708(b)(10)(i)(A), which exempts from 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, 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).

5

In order to qualify for this exemption, the agency asserting it must show that

the information sought to be withheld is: (1) internal; (2) prior to an agency

decision or course of action; and (3) deliberative in nature. Twp. of Worcester v.

Office of Open Records, 129 A.3d 44, 61 (Pa. Cmwlth. 2016). The inability to

establish any of the three elements bars application of the exemption. Pa. Dep’t of

Educ. v. Bagwell, 114 A.3d 1113, 1123 (Pa. Cmwlth. 2015). Through affidavits or

otherwise, “an agency must explain how the information withheld reflects or

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

making.” Twp. of Worcester, 129 A.3d at 61. Under this exception, only

“confidential deliberations of law or policymaking, reflecting opinions,

recommendations or advice” are protected, not factual information. Id. “[P]urely

factual material is severable and, in general, should be disclosed even when it is

located within a document containing exempted predecisional deliberations.”

McGowan, 103 A.3d at 386. Factual material can qualify as deliberative

information only if its “‘disclosure would so expose the deliberative process within

an agency that it must be deemed exempted,’” or stated another way, “‘would be

tantamount to the publication of the [agency’s] evaluation and analysis.’” Id. at

387 (quoting Trentadue v. Integrity Comm., 501 F.3d 1215, 1228-29 (10th Cir.

2007)).

In Scolforo I, we noted that the General Assembly opted to use the term

“reflect,” which is broader than the term “reveal,” when it crafted the exception.

“The term reflect means ‘mirror’ or ‘show,’ while the term reveal means ‘to make

publicly or generally known’ or, in other words, ‘disclose.’” Scolforo I, 65 A.3d at

1101 (emphasis in original). Therefore, the exception “protects information where

an agency demonstrates that the information merely reflects, or, in other words,

6

‘mirrors’ or ‘shows,’ that the agency engaged in the deliberative process; it does

not require that an agency establish that the information itself reveals or ‘discloses’

deliberative communication.” McGowan, 103 A.3d at 383 (emphasis in original).

In addition, we concluded that Section 708(b)(10)(i)(A) “exempts all predecisional

deliberations where agency officials and/or employees ‘contemplate’ or ‘propose’

a future ‘course of action.’” Id.

Here, the Department claims that Items 1-12, 15-35, 38-41, and 43-67 are

exempt under this provision because the emails were internal to the Department or

internal to it and the Department of Health, were deliberative in nature, and were

made prior to the Department’s decision regarding how to handle press inquiries

and/or respond to the recently published investigative report, “No Escape:

Exposure to Toxic Coal Waste at State Correctional Institution Fayette” (No

Escape Report), alleging increased health problems in prisoners housed at the

facility. The Department further claims that the exemption is needed to ensure an

open line of communication is maintained within the Department, which was

essential to the Department’s response to the important issue of inmate health.

Requester, on the other hand, asserts that the Department does not point to

any “operative decision” to which the emails relate. Instead, Requester argues that

the Department makes general assertions about unspecified decisions and/or

policies. Requester also argues the Department admits the documents relate to

fact-gathering, which would not be protected. Furthermore, Requester claims that

to the extent the documents included discussion of how to respond to press

inquiries, this is not the sort of policymaking that the exemption is designed to

protect.

7

To determine whether the internal, predecisional deliberations exception

applies, we begin with an in camera review of the records at issue. See Twp. of

Worcester, 129 A.3d at 60 (finding in camera review of records is an appropriate

means of assessing claims of predecisional deliberations and/or privilege). We

agree with OOR that many of the records merely contain factual information

without deliberation. This includes Items 1-12, 15-22, 27-28, 30-31, 34-35, 39, 41,

43, 46, 48-49, 52-54, 56-58, 60, 62-63, and 65-67, which are subject to disclosure

in their entirety. We also agree with OOR’s determination that Items 29, 32-33,

and 55 are subject to limited disclosure, as set forth in detail in OOR’s Final

Determination. We therefore affirm as to these Items.

However, our review of the records indicates that OOR erred in concluding

other records or portions thereof were merely factual and therefore subject to

disclosure. Several documents contain communications between the Department

and/or the Department of Health officials that reflect the Department’s review and

discussion of potential courses of action in responding to the No Escape Report

and resulting press inquiries. Therefore, they are internal7 and deliberative in

nature to the extent they contemplate or propose a future course of action.

McGowan, 103 A.3d at 383. In addition, they predate the Department’s official

response to the No Escape Report, thus, satisfying the other element of the

exemption. Id.

To the extent requested documents which are public records contain

discussion concerning how to respond to general media inquiries that are not

7

Under Section 708(b)(10)(i)(A) of the RTKL, predecisional deliberations between two

agencies, are also protected. 65 P.S. § 67.708(b)(10)(i)(A). Therefore, the Department’s

communications with the Department of Health does not destroy the privilege.

8

related to a pending investigation, we agree with Requester that, generally, such

communications will not be protected. However, we are cognizant that such a

determination is also fact specific, and, here, the record reflects that the very

limited communications that do concern how to respond to the media inquiries are

inextricably intertwined with the Department’s internal, predecisional deliberations

relating to a contemplated or proposed course of action – its ongoing investigation

into the No Escape Report. Because the Department’s approach to handling media

inquiries regarding the No Escape Report is dependent upon the Department’s

overarching course of action regarding the pending investigation of the No Escape

Report, in general, we find discussions among Department personnel on how to

respond to requests from the media regarding the report are also protected. Similar

to the documents in which only the Department’s proposed course of action are

discussed, which OOR agreed were protected, these emails pertaining to how to

respond to media inquiries satisfy the three-part test for protection under the

predecisional deliberations exception. They are internal to Department staff and

clearly took place prior to any decision regarding what course of action the

Department would take in response to the report; thus, they are predecisional.

Furthermore, the emails are deliberative in nature because they relate to managing

how the Department would publicly respond to the pending investigation regarding

the No Escape Report, which garnered considerable publicity, while its internal

investigation was underway.

Consistent with the above, we find the following documents8 contain

internal, predecisional deliberations, which are exempt from disclosure:

8

Several of the items below involve the same or substantially similar email chains. As a

result, several emails listed below have been repeated, resulting in multiple items being subject

(Continued…)

9

 Items 23-25 in their entirety.9

 Item 26 – email dated September 5, 2014 at 2:35 p.m. The remainder of the

document is disclosable.

 Items 38 and 40 – emails dated September 16, 2014 at 8:13 a.m. 10 and 6:19

p.m. The remainder of the document is disclosable.

 Items 44 and 45 – emails dated September 16, 2014 at 8:13 a.m. 11 and 6:19

p.m. and email dated September 22, 2014 at 9:39 a.m. The remainder of the

document is disclosable.

 Items 47, 50-51, and 59 – emails dated September 16, 2014 at 8:13 a.m.12

and 6:19 p.m. and email dated September 25, 2014 at 9:11 a.m. The

remainder of the document is disclosable.

We therefore reverse OOR’s determination as to these records to the extent it

is inconsistent with our holding the above.

B. Attorney-client privilege and/or work product

Section 305(a) of the RTKL also protects documents from disclosure that are

privileged. 65 P.S. § 67.305(a). Under the RTKL, a “privilege” is defined as

including the attorney-client privilege and the attorney-work product doctrine.

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

To establish that a document is protected by the attorney-client privilege, the

agency must show: (1) that the asserted holder of the privilege is or sought to

become a client; (2) that the person to whom the communication was made is a

member of the bar of a court or his or her subordinate; (3) that the communication

relates to a fact of which the attorney was informed by the client, without the

to redaction. For instance, the September 5, 2014 email at 2:35 p.m. found in Item 26 is also

common to Items 23 through 25. As reflected below, the September 16, 2014 emails at 8:13 a.m.

and 6:19 p.m., the September 22, 2014 email at 9:39 a.m., and the September 25, 2014 email at

9:11 a.m. are also common to multiple items.

9

OOR found only portions of Item 25 were protected.

10

OOR found only the September 16, 2014 email at 8:13 a.m. was protected.

11

OOR found only the September 16, 2014 email at 8:13 a.m. was protected.

12

OOR found only the September 16, 2014 email at 8:13 a.m. was protected.

10

presence of strangers, for the purpose of securing an opinion of law, legal services,

or assistance in a legal matter; and (4) that the claimed privilege has not been

waived by the client. Bagwell, 114 A.3d at 1123-24; Chambersburg Area Sch.

Dist. v. Dorsey, 97 A.3d 1281, 1289 (Pa. Cmwlth. 2014).

“The work-product doctrine, while closely related to the attorney-client

privilege, provides broader protection.” Bagwell, 114 A.3d at 1124. Instead of

confidential communications with the client, the work-product doctrine protects

“mental impressions, theories, notes, strategies, research and the like created by an

attorney in the course of his or her professional duties.” Heavens, 65 A.3d at 1077

(emphasis added). Similar to the predecisional deliberations exception, the

attorney-client privilege and work product doctrine does not protect mere facts.

Bagwell, 114 A.3d at 1124.

Here, the Department maintains that Items 61 and 64 are privileged because

they are communications between Department’s counsel and his client, wherein the

attorney provides an opinion on the scope of a different RTKL request, explains

the law itself and its exemptions, and then advises the client about the types of

exemptions potentially applicable. Having reviewed the documents, we agree that

the documents are privileged. The records involve correspondence between

Theron R. Perez, chief counsel, and Department employees, and provide legal

advice, as well as counsel’s mental impressions concerning the request. Therefore,

OOR erred in ordering that Items 61 and 64 be disclosed.

11

III. Conclusion

For the foregoing reasons, we reverse OOR’s Final Determination as it

relates to Items 23-26, 38, 40, 44-45, 47, 50-51, and 59, which we find are in

whole or in part subject to the internal, predecisional deliberations exemption. We

also reverse OOR’s Final Determination as it relates to Items 61 and 64, which we

find are protected by the attorney-client privilege and work product doctrine.

OOR’s Final Determination is affirmed in all other respects.

________________________________

RENÉE COHN JUBELIRER, Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Corrections, :

Petitioner :

:

v. : No. 1043 C.D. 2016

:

Ben Fiorillo, :

Respondent :

ORDER

NOW, May 1, 2017, the Final Determination of the Office of Open Records,

dated June 2, 2016, is hereby AFFIRMED, in part, and REVERSED, in part. The

Order is REVERSED insofar as it relates to Items 23-26, 38, 40, 44-45, 47, 50-51,

59, 61, and 64, as set forth in the foregoing opinion.

________________________________

RENÉE COHN JUBELIRER, Judge