Board of Supervisors of Milford Township v. McGogney
Commonwealth Court of Pennsylvania
No. 2387, C.D. 2009
January 6, 2011
The Commonwealth Court held that an agency’s open records officer cannot waive the agency’s attorney-client privilege by unilaterally deciding to release privileged records.
Background
Glenn McGogney submitted a Right to Know Law request to Milford Township seeking certain records.
The township’s open records officer consulted with its solicitor, who told her that the records contained information protected by the attorney-client privilege and would need to be redacted before being provided to McGogney.
While the solicitor was reviewing the records, the open records officer grew concerned about the timeliness of the township’s response and provided the documents to McGogney before they were redacted.
After discovering that the unredacted records were disclosed, the township board filed suit to get them back and bar McGogney from disclosing them to anyone else. A trial court granted the board’s request and instructed McGogney to return the documents.
McGogney appealed to the Commonwealth Court.
Commonwealth Court Decision
Under the Right to Know Law, privileged records are exempt from disclosure. Indeed, even though the law allows an agency to exercise its discretion to release other exempt records, the law prohibits agencies from releasing privileged records.
Typically, a client waives the attorney-client privilege by releasing privileged information. But, in this case, the court held that the township’s open records officer could not waive the township’s privilege.
The court explained that the officer did not possess the authority to waive the privilege for the township, as her role was “ministerial” and “administrative.” The township itself had taken precautions to ensure that the privileged documents were not publicly released and then took swift action upon learning of the disclosure.
Consequently, the court reasoned that the township did not waive its attorney-client privilege.
January 6, 2011 — Commonwealth Court Opinion — No. 2387, C.D. 2009