Office of the Governor v. Scolforo
Commonwealth Court of Pennsylvania
No. 739 C.D. 2011
June 7, 2012
The Commonwealth Court vacated a final determination of the Office of Open Records (OOR) that had required the governor to release complete copies of his calendar entries.
The court sent the case back to the OOR to review the calendar entries to determine whether they were exempt under the Right to Know Law’s exception for documents that reflect predecisional deliberations.
Background
Mark Scolforo, a reporter for The Associated Press, requested copies of the governor’s calendar.
The governor’s office provided the reporter with calendar entries, but redacted them to withhold information about the subject of the governor’s meetings. The governor’s office claimed that this information was exempt under the law’s exception for “internal, predecisional deliberations of an agency.”
The OOR rejected the governor’s argument, ruling that the evidence he had submitted to support his claim was insufficient. The governor’s office appealed to the Commonwealth Court.
Commonwealth Court decision
The Commonwealth Court held that the OOR erred when it determined that the topic of a meeting as recorded in the Governor’s calendar could never reflect predecisional deliberations. The court stated that calendar entries might, for example, contain a description of discussions about controversial proposed legislation that could expose the Governor’s legislative strategy.
The court explained that determining whether information is predecisional and deliberative is a “highly fact-specific inquiry.” As a result, the OOR should have considered an affidavit submitted by the governor’s office that attempted to justify the decision to withhold the calendar entries.
In this case, the court ruled, the affidavit made the minimally sufficient showing required to establish that the “predecisional deliberation” exemption applied.
Consequently, the OOR should have reviewed the calendar entries in camera – that is, examined them privately outside of public view – to determine whether the specific redacted entries were exempt under the law.
The court remanded the case back to the OOR so that it could review the calendar entries in camera and then issue a new determination based on its examination of the records.