Commonwealth of Pennsylvania, Office of Open Records v. Center Township
Commonwealth Court of Pennsylvania
No. 522 MD 2013
June 24, 2014
The Commonwealth Court ruled that the Office of Open Records has the authority to review records in camera – i.e., outside of the parties’ view – to determine if the records are public under the Right to Know Law.
The court also ruled that the OOR has the ability to assess whether records are protected from disclosure by the attorney-client privilege and the work-product doctrine.
Background
Beverly Schenck filed a Right to Know Law request for records with Center Township seeking several months of its solicitor’s invoices.
The township partially denied the request, claiming that some of the information in the records was protected by the attorney-client privilege and work-product doctrine.
Schenck appealed to the Office of Open Records, which asked the township to provide it with the invoices in camera to determine if they were privileged. The township refused, claiming that the OOR did not have the authority to conduct an “in camera review” and that the OOR did not have jurisdiction to evaluate whether the records were privileged. The OOR filed a petition with the Commonwealth Court to enforce its order.
Commonwealth Court decision
In arguing that the OOR does not have jurisdiction to decide whether records are privileged, the township relied on a Commonwealth Court case from 2012, City of Pittsburgh v. Silver, in which the court decided that the OOR did not have the power to order the disclosure of documents protected by a legal ethics rule for confidentiality.
The court explained that Silver dealt with a narrow issue involving whether the disclosure of settlement documents would violate an attorney’s ethical obligations and that later court decisions made clear that the OOR possesses the authority to evaluate whether documents are protected by the attorney-client privilege and work-product doctrine.
The court explained that because the RTKL gives the OOR the power to determine whether a record is public, it authorizes the OOR to make decisions about whether records are privileged, which is necessary for determining whether records are considered public.
The court next considered whether the OOR has the authority to conduct an in camera review – a review in which an appeals officer reviews records behind closed doors to assess whether they should be made public. Though the court recognized that this authority is neither explicitly granted nor denied by the text of the RTKL, the court reasoned that the OOR’s authority to engage in in camera review is implied by the law.
The court stated that “an appeals officer … serves at the initial fact-finder” and that “our Supreme Court has held that the statutory structure of the RTKL grants appeals officers ‘wide discretion.’”
The court then explained that “in some instances, an in camera review may be the only way that an appeals officer can assess, in a meaningful fashion, whether an agency has met its burden of proving that a document is privileged.”
The court ordered the township to submit the unredacted records to the OOR for an in camera review to determine whether the information withheld by the township is shielded by the attorney-client privilege or work-product doctrine.