Government Agencies Receiving RTKL Requests Face Expanded Scrutiny
A recent Pennsylvania Commonwealth Court decision has given the Office of Open Records expanded leeway to review materials that government agencies claim are exempt from Pennsylvania Right-to-Know Law (RTKL) requests under attorney-client privilege and the work-product doctrine. The RTKL provides a process by which anyone can obtain access to records of the transactions and activities of governmental agencies on the state and local levels. While records are generally presumed to be public and accessible through RTKL requests, there are exceptions. For one, records relating to communications between the agency and their attorneys may fall under, or be “privileged” by, the attorney-client privilege and be exempt from RTKL requests. This also may apply to materials prepared by or for an attorney in the course of their legal representation of the agency—especially if it is in preparation for litigation—under the work-product doctrine.
So what has changed? In Office of Open Records v. Center Township, 522 M.D. 2013 (Pa. Commw. Ct. June 24, 2014), the Commonwealth Court held that the Office of Open Records (OOR) has the authority to evaluate whether documents that Center Township had asserted were privileged, are in fact privileged. Further, the court found that the OOR can conduct in camera, or private, review of the disputed documents.
The case arose from a RTKL request for invoices from the Township solicitor. The Township responded by releasing the invoices, but redacted certain portions that they asserted were privileged. The requestor appealed to the OOR and asked them to conduct in camera review of the invoices. The Township refused to provide the OOR with a privilege log, or document that describes the items being withheld, because they claimed that the OOR lacked the authority or jurisdiction to make such an evaluation.
After the parties filed a Joint Motion for Summary Relief, the Commonwealth Court determined that the OOR did have the authority to evaluate the invoices, and could conduct in camera examinations. The court found that the RTKL specifically conferred subject matter jurisdiction on the OOR to make determinations about whether agencies have satisfied their burden of proof to withhold information as privileged. Further, the court determined that the OOR has the implied authority to conduct in camera review of such documents because it is derivative of their duty to develop an adequate evidentiary record for future reviewing courts.
In light of the Commonwealth Court’s recent holding, municipalities that deny a RTKL request on the basis that requested documents are protected by attorney-client privilege will be required to justify that claim on any appeal to the OOR. This means that the municipality will need to produce a privilege log detailing the disputed documents or the disputed information in the documents to the OOR for its independent review, and, if OOR determines that the requested information is not privileged, the records must be produced.