Couloumbis v. Senate of Pa.

300 A.3d 1093

Angela COULOUMBIS and Sam Janesch, Petitioners v. SENATE OF PENNSYLVANIA, Respondent

No. 160 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued December 12, 2022

Filed July 18, 2023

Charles Hogle, Washington, DC, for Petitioners.

Matthew H. Haverstick, Philadelphia, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE McCULLOUGH

Angela Couloumbis and Sam Janesch (collectively, Requesters) petition for review of the January 28, 2022 Final Determination of the Legislative Reference Bureau (LRB) Appeals Officer (LRB Appeals Officer), who affirmed the Senate of Pennsylvania (Senate) Open Records Officer's (Senate ORO) partial denial of the request for records sought from the Senate of Pennsylvania (Senate) by Requesters under the Right-to-Know Law (RTKL). ¹ Upon review, we vacate and remand. ²

I. FACTS AND PROCEDURAL HISTORY

The relevant facts of this appeal are not in dispute. On October 15, 2021, Requesters submitted a RTKL request to the Senate ORO, seeking the following: 1) invoices, bills, vouchers, or other financial statements reflecting payment for legal work performed by outside law firms or individual lawyers for the Senate or its employees; 2) engagement or retainer letters signed by any Senate employee or Senate member to provide legal services; 3) expense reports detailing all payments for legal services to outside law firms or individual lawyers hired by the Senate; and 4) any other documents that identify the Senate's legal engagements with outside law firms or lawyers (Request). (Reproduced Record (R.R.) 2a.) The Request covered the period between January 1, 2021, and October 15, 2021. Id. On October 19, 2021, the Senate notified Requesters that a 30-day extension was necessary to respond to the request as the response required redacting the records. See Section 902(a)(1), (4), and (7) of the RTKL, 65 P.S. §§ 67.902(a)(1), (4), (7) ; R.R. 8a.

On November 19, 2021, the Senate's ORO granted, in part, and denied, in part, the Request, and in total, provided 1,039 pages electronically to Requesters. ³ (R.R. 4a-8a.) The Senate provided a report of each caucus and the institutional offices, which was followed by copies of engagement letters and financial records covered within that report. The Senate denied the Request, in part, by redacting portions from the produced records. ⁴ The Senate's ORO explained that three sets of redactions were required under Section 706 of the RTKL, 65 P.S. § 67.706, including: (1) redaction of the Federal Tax identification number found within financial records as it is protected information under 26 U.S.C. § 6103(a) ; (2) redaction of the bank account numbers and routing information as a "confidential personal identification number"; and (3) redaction of information protected under the privileges of "attorney[ ]work product doctrine" and/or "attorney-client privilege" found within the lines of engagement letters and invoices outlining billable hours. (R.R. 4a-7a.) Moreover, the Senate stated:

In providing access to the legal engagement letters and invoices, redactions were made in consideration of Levy v. Senate of [Pennsylvania ], 65 A.3d 361, 373 (2013) (approving redactions to legal invoices on attorney[-]client privilege grounds, holding descriptions of legal services that address the client's motive for seeking counsel, legal advice, strategy, or other confidential communications are undeniably protected under the attorney[-]client privilege) and the attorney[ ]work product doctrine which allows the protection of the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation. Bousamra v. Excela Health , 210 A.3d 967, 976 (2019).

(R.R. 6a.) (internal quotations omitted).

On December 8, 2021, Requesters appealed the Senate ORO's redactions to the Senate Appeals Officer, who recused, and the appeal was transferred to the LRB. (R.R. 10a-14a.) In their appeal, Requesters specifically challenged the redactions based on the attorney-client privilege and work product doctrine, and asserted the redactions were inappropriate under the Sunshine Act. ⁵ Requesters also argued the Senate had not provided any evidence showing that the privileges claimed applied. (R.R. 13a.) Requesters requested that the LRB order all redactions be unveiled or, in the alternative, the LRB conduct in camera review of the records at issue.

The Senate submitted a memorandum of law to the LRB reiterating it had properly redacted the records pursuant to the attorney-client and work product privileges, and further added that "many of the records produced to [Requesters] were also redacted on [the] basis of the speech and debate privilege." (R.R. 224a.) In support, the Senate submitted a privilege log (Privilege Log) and four attestations of (1) Crystal H. Clark, Esq., General Counsel to the Senate Republican Caucus; (2) Megan Martin, Secretary of the Senate; (3) C.J. Hafner, II, Esq., Chief Counsel to the Senate Democratic Leader; and (4) Michael A. Sarfert, Esq., Counsel to the Senate Chief Clerk (Attestations). (R.R. 311a-61a.)

The Privilege Log includes:

1) The record type;

2) The record dates;

3) The authors;

4) The recipients;

5) A description of the legal work; and

6) The legal basis for the redaction.

(R.R. 348a-61a.) The Attestations each include, among other items, the following:

1) The attestant's name, position, and job responsibilities;

2) The attestant's familiarity with the Request;

3) The details of the searches each performed for responsive documents;

4) The individual attorneys and law firms who generated responsive documents;

5) The specific categories, subjects, and topics of information that were redacted from the Request; and

6) The rationale why information was redacted under attorney-client, work product, and speech and debate privileges.

(R.R. 311a-61a.) Additionally, one of the Attestations includes a specific example showing how the redactions were performed in a scenario where the subject matter was repeated in the engagement letter and the invoice. (R.R. 314a.) The Senate asserted that its comprehensive Privilege Log and four Attestations established that the redactions made to the 1,039 pages of records produced to Requesters were appropriate and justified. Furthermore, the Senate argued the Senate ORO's "limited and focused" redactions of certain aspects of the records were necessary to preserve privilege. (R.R. 215a.)

By a decision dated January 28, 2022, the LRB Appeals Officer affirmed the partial denial of the Request. (Requesters’ Br., Ex. A.) The LRB Appeals Officer concluded that the redactions found in the produced engagement letters and invoice captions "were based on attorney-client ‘privilege’ or attorney[ ]work product doctrine." (Requesters’ Br., Ex. A at 16-117.) The LRB Appeals Officer further concluded that Requesters failed to "provide[ ] any factual basis for objecting" to the Senate's "characterization" that redactions based on the speech and debate privilege were "limited to those portions of the records containing descriptions of specific legal work performed within the sphere of legislative activity and confidential communications with legal counsel concerning legislative matters." (Requesters’ Br., Ex. A at 11.) The LRB Appeals Officer determined that Requesters’ reliance on the Sunshine Act was misplaced as the appeal does not involve a public meeting. (Requesters’ Br., Ex. A at 12.) The LRB Appeals Officers expressly rejected Requesters’ demand for in [ ] camera review holding that " in-camera inspection would be inappropriate and unnecessarily intrude upon privilege." (Requesters’ Br., Ex. A at 8.) The LRB Appeals Officer conducted a line-by-line review of the produced documents and determined that "[a] focus on the redacted portion of each document verified that the likely content of the shaded sections is subject to redaction as a description of ‘the client's motive for seeking counsel, legal advice, strategy, or other confidential communications[.]’ " Id.

Thereafter, Requesters petitioned for review to this Court.

II. ISSUES PRESENTED⁶

On appeal, Requesters assert the LRB erred in concluding that the Senate's redactions of subject matter of outside attorneys’ services from engagement letters and invoice captions was proper under the RTKL. Requesters have narrowed the scope of their appeal and challenge only the redactions made to 24 of the 1,039 pages produced, arguing that the redacted information is not subject to attorney-client privilege, the work product privilege, or the speech and debate privilege. (Requesters’ Br. at 9, 15-16.)

Ultimately, Requesters are asking this Court to order either that the Request be released immediately or that the LRB hold a hearing and review the Request in camera . Requesters rely on the Pennsylvania Supreme Court's interpretation of the RTKL in Levy , 65 A.3d 361, and argue an in camera review of the records is warranted because the engagement letters and invoice captions are unlikely to reveal privileged information. Additionally, Requesters argue that, like the information at issue in Reading Eagle Co. v. Council of City of Reading , 156 Pa.Cmwlth. 412, 627 A.2d 305 (1993), which was necessary to fulfilling the purposes of the Sunshine Act, the information at issue in this case is necessary to fulfilling the purposes of the RTKL.

III. DISCUSSION

A. Standard and Scope of Review

When deciding questions of law under the RTKL, such as whether certain information is exempt from disclosure by the attorney-client, attorney work product, or speech and debate privileges, our scope of review is plenary, and our standard of review is de novo . Levy v. Senate of Pennsylvania , 34 A.3d 243 (Pa. Cmwlth. 2011) ( Levy II ). In reviewing matters under Section 1301...