concluding that where our legislature expressed its intent to codify the common law deliberative process privilege into section 708(b)(10)(i) of the RTKL, the legislature demonstrated its intent to specifically exempt the common law deliberative process privilege from disclosure
How later courts described this case
- concluding that where our legislature expressed its intent to codify the common law deliberative process privilege into section 708(b)(10)(i) of the RTKL, the legislature demonstrated its intent to specifically exempt the common law deliberative process privilege from disclosure
- stating that the affidavit was conclusory because it merely included a list of subjects to which internal deliberations have related, and did not permit the OOR to ascertain how disclosure of the entries would reflect the internal deliberations of those subjects
- holding that an affidavit that was “not detailed, but rather conclusory . . . [was] not sufficient, standing alone, to prove that the [redacted information was] exempt from disclosure” under the RTKL
- holding that a generic and non-specific affidavit is insufficient by itself for OOR and the courts to determine whether a record falls under an enumerated exemption
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
Judge McCullough.
I concur in the Majority’s analysis insofar as it concludes that the affidavit of Open Records Officer Michael Downing submitted on behalf of the Office of the Governor was insufficient to prove that the Governor’s schedule from January 18, 2011, to February 4, 2011 (hereafter Calendars) are exempt from disclosure under the predecisional deliberative exception in section 708(b)(10) of the Right>-to-Know Law (RTKL). 1 I further agree with the Majority that, because the Office of the Governor did not raise the “notes and working papers” exception found in section 708(b)(12) of the RTKL, 65 P.S. § 67.708(b)(12), as a defense to disclosing the information contained in the Calendars on the grounds that the Calendars were for the Governor’s personal use, 2 we cannot address that exemption on appeal.
*1105 However, unlike the Majority, I would address the issue of the authority of the Office of Open Records (OOR) to sua sponte direct an agency to produce unre-dacted records that are the object of a RTKL request for in camera review. Indeed, by order dated July 25, 2012, we granted the application of the Office of the Governor for reconsideration of our original June 7, 2012 Opinion and Order, 3 and by subsequent order dated August 16, 2012, we specifically directed the parties to file supplemental briefs limited to the issue which the Majority now avoids. 4
In this regard, while section 1101(b)(3) of the RTKL, 65 P.S. § 67.1101(b)(3), makes clear that the OOR has discretion to conduct a hearing, and, in fact, declined to do so even though a hearing was requested by the Office of the Governor, there is no similar provision in the RTKL that gives the OOR the authority to conduct in camera reviews sua sponte. Although the OOR has argued that conducting in camera reviews would more efficiently dispose of cases than conducting hearings, the Legislature, in crafting the RTKL, did not provide for such means of disposition.
The authority of this Court to order an in camera review by the OOR remains unchallenged; but because the right of the OOR to sua sponte conduct in camera reviews was raised in this case, I would hold that the Legislature did not grant such authority. Consequently, it is up to the Legislature to confer such authority by statutory amendment.
. Act of February 14, 2008, P.L. 6, 65 P.S. § 67.708(b)(10).
. See City of Philadelphia v. Philadelphia Inquirer, 52 A.3d 456, 461-62 (Pa.Cmwlth.2012) (holding that the mayor’s and city council members’ Calendars were exempt from dis *1105 closure under the "notes and working papers” exception because the requested documents were created solely for the convenience of the mayor's and city council members’ personal use in scheduling daily activities and were not circulated outside of the officials' offices).
. The parties also addressed this issue extensively at en banc argument on February 13, 2013.
. This Court’s original Opinion and Order vacated the portion of the Final Determination of the OOR directing the Office of the Governor to provide the Governor’s Calendars, without redactions, for all information withheld on the basis of Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10), and/or privilege, and remanded this matter to the OOR to conduct an in camera review of the unredacted Calendar entries of the Office of the Governor in order to determine whether the predecisional deliberative exception set forth in Section 708(b)(10)(i) of the RTKL, 65 P.S. § 67.708(b)(10)(i), applied.