California University of Pennsylvania (the “University”) petitioned the Commonwealth Court for review of a final determination made by Pennsylvania’s Office of Open Records (OOR) in January 2017. The final determination held that records relating to the University’s investigation of a structural failure in an on-campus parking garage were recoverable. The Commonwealth Court affirmed in part and vacated and remanded in part the ORR’s final determination. Specifically, the Commonwealth Court held that the University failed to show that certain records were exempt from disclosure under Pennsylvania’s Right-to-Know Law (the “RTKL”) as records of a noncriminal investigation or as records of predecisional deliberations. However, the Commonwealth Court did remand potentially privileged records to OOR for an in camera review.
On September 14 and 19, 2016, Bill Schackner (the “Requester”) requested from the University copies of all University correspondence between August 24, 2016 and September 19, 2016 related to fallen concrete in an on-campus parking garage. The University partially denied the request, withholding correspondence regarding the investigation into the causes of the structural failure, its internal deliberations, and drafts of web content and University statements. The Requester appealed the denial to the OOR.
At the OOR, the University contended that its continued withholding of several records was lawful because these records were exempt under the RTKL as either records relating to a noncriminal investigation, records relating to predecisional deliberations, or records that were protected from disclosure by the Attorney–Client privilege. The OOR rejected the University’s defenses, ordering that the University produce the records related to its internal investigation. The University appealed to the Commonwealth Court.
First, the Commonwealth Court disagreed with the University’s contention that records were exempt under Section 708(b)(17) of the RTKL. Under Section 708(b)(17), a record is exempt as being part of a noncriminal investigation if it involves notes, correspondence, reports, investigative materials, or other records that would reveal the initiation, progress, or result of an investigation. However, to qualify, these records must be created pursuant to an agency’s official duties. While the University did conduct an investigation into the structural failure of the parking garage, it failed to establish that it had an official agency obligation to do so. Notably, the Commonwealth Court distinguished between an “official probe or an investigation” and “routine duties, such as determining the cause of a structure failure and the cost of repairs.”
Second, the Commonwealth Court rejected the University’s contention that several of its records represented the predecisional deliberations of its agents. Section 708(b)(10)(i)(A) of the RTKL exempts records from disclosure if they are internal to a government agency, they are deliberative, and they reflect deliberations made prior to a decision. To prove that a record is “deliberative,” an agency must present specific facts that show how the information relates to a deliberation, such as confidential deliberations of law or policy, opinions, recommendations, advice. In this particular case, the privilege logs and affidavits presented by the University did no more than establish that inquiries and communications regarding the parking garage occurred, and they did not provide enough basis for the Commonwealth Court to determine the nature of the relevant records. Instead, the affidavits and privilege logs “merely list the subjects involved.”
However, the University was successful in getting the case remanded to the OOR so that the OOR could perform an in camera review of certain records. The OOR has the authority to conduct an in camera review to determine whether or not they are privileged, and this power is very important where an agency seeks to protect the Attorney–Client privilege. As such, while the University’s privilege logs and affidavits did not make it clear whether certain material was in fact privileged, the Commonwealth Court remanded records that the University claimed were privileged to the OOR. The OOR will now need to conduct an in camera review to determine what records, if produced, would violate the privilege.
Click here to read: Calif. Univ. of Pa. v. Schackner, No. 104 C.D. 2017 (Pa. Commw. Ct. Aug. 22, 2017).