Office of the Governor v. Scolforo
Commonwealth Court of Pennsylvania
No. 739 C.D. 2011
April 23, 2013
The Commonwealth Court held that, although an entry on the governor’s calendar may be exempt from disclosure pursuant to the exemption for internal predecisional deliberations, the entries at issue must be disclosed because the affidavit submitted by the Governor’s Office in support of redacting the entries was insufficiently detailed to carry his burden of proof.
Background
AP reporter Mark Scolforo requested the governor’s schedule between January 18, 2011 and February 4, 2011, and all emails from January 18, 2011 to the date of the request.
The governor’s office granted the request in part, providing many of the requested records, including redacted calendar pages, from which they removed the subject of meetings, but left visible the names of the participants. The governor claimed that the redacted entries were protected by the internal predecisional deliberation exemption. He submitted an affidavit of his open records officer to the effect that the redacted calendar entries reflected “internal deliberations that preceded decisions related to subjects including the transition into the new administration, personnel, budgetary and policy decisions, related courses of actions and implementation of changes in the direction of the administration.”
Scolforo appealed to the Office of Open Records. In its final determination, the OOR reversed the governor on the calendar redactions, holding that the affidavit provided by the governor was irrelevant and that “[t]he factual topic of a meeting with the governor is facially not ‘deliberative,’ as such a notation does not, in itself, reveal the actual deliberations.”
The OG appealed to the Commonwealth Court.
Commonwealth Court Decision
The Commonwealth Court took a broad view of the deliberative process exemption, noting that the calendar entries at issue might qualify for protection under the exemption because “[c]alendars may contain the topic of the meeting, along with specific points that are to be discussed, or proposed actions, along with a list of the individuals scheduled to attend the meeting.”
The court also concluded that the OOR had erred in disregarding the affidavit of the open records officer, and then turned to an examination of the affidavit.
The court reasoned, “Because this affidavit is not detailed, but rather conclusory, it is not sufficient, standing alone, to prove that the calendar entries are exempt from disclosure.”
Therefore, the court concluded that the governor had failed to meet his burden of proving that the redacted entries fell within the exemption and it thus affirmed the OOR’s final determination with respect to the entries.