On April 16, 2015, Commonwealth Court considered 2 procedural matters in a Right-to-Know-Law appeal: (1) sufficiency of a certified record and (2) sufficiency of a signed verification from the responding agency, here the Department of Education (Department).
Bagwell submitted a RTKL request to the Department for all emails between its Former Secretary and the Office of General Counsel on a specific date, November 8, 2011. The Department identified 3 responsive emails that were believed to pertain to the investigation of Penn State’s handling of the Sandusky matter.
The Department denied access, citing attorney-client privilege, work-product doctrine, and deliberative process privilege. Bagwell appealed to Office of Open Records (OOR) arguing the Department waived the privileges by disclosing the e-mails to PSU, and that the e-mails did not implicate legal advice nor were they deliberative.
The Department submitted a signed verification and position statement explaining that the Former Secretary fell under the executive agency umbrella protected by the attorney-client relationship with OGC. OOR undertook in camera review of the emails, eventually granting the appeal and directing their disclosure. OOR reasoned that the unsworn verification, consisting of legal argument, was not competent evidence to withhold records. Further, OOR found the Department had not met its burden to withhold. The verification did not identify the legal issues under consideration or factual support demonstrating the content was for the purpose of seeking legal services or assistance. The Department appealed.
On appeal Commonwealth Court affirmed OOR’s determination that the Department did not meet its burden with respect to the predecisional deliberative exception. It found the Department’s verification was insufficient because it did not directly address any of the three elements required to establish the predecisional deliberative exception.
As to the other issues, the Court ordered OOR to submit the e-mails under seal, and remanded the waiver issue to OOR so Bagwell could develop a record.
The Court did not rule on whether the unsworn verification was sufficient as a procedural matter.
On appeal to Commonwealth Court, records reviewed in camera should be included with the certified record (under seal if appropriate). This makes sense, as the certified record should contain all evidence the OOR appeals officer considered. While Commonwealth Court did not rule on the issue of whether an unsworn verification is sufficient, a sworn affidavit should be used.