Office of Gen. Counsel v. Brad Bumsted & LNP Media Grp., Inc.

247 A.3d 71

OFFICE OF GENERAL COUNSEL, Petitioner

v.Brad BUMSTED and LNP Media Group, Inc., Respondents

No. 1764 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued December 8, 2020

Decided February 23, 2021

Thomas P. Howell, Deputy General Counsel, Harrisburg, for Petitioner.

Madeline Lamo, Pro Hac Vice, Washington, D.C., and Terry Mutchler, Philadelphia, for Respondents.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge,¹ HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE BROBSON

Office of General Counsel (OGC) petitions for review of a final determination (Final Determination) of the Pennsylvania Office of Open Records (OOR), dated November 20, 2019, which granted, in part, and denied, in part, an appeal filed by Paula Knudsen (Knudsen) and LNP Media Group, Inc. (LNP) under the Right-to-Know Law (RTKL).^{2 ,3} OOR granted Requesters’ appeal because the requested records were not from individuals seeking employment with an agency or predecisional deliberations that are exempt from public access under the RTKL. For the reasons that follow we affirm, in part, vacate, in part, and remand the matter for further proceedings.

I. BACKGROUND

On October 10, 2019, Requesters filed a RTKL request with OGC, seeking any "[a]pplications submitted to OGC for one vacancy on the Commonwealth Court," noting that the applications were due on October 9, 2019, at 5:00 p.m.⁴ (Reproduced Record (R.R.) at 4a.) On October 17, 2019, OGC denied the request, claiming the "applications and related information of applicants not hired by an agency are exempt from access" pursuant to Section 708(b)(7)(iv) of the RTKL, 65 P.S. § 67.708(b)(7)(iv). (R.R. at 5a.) OGC also stated that it "has not provided records that would reveal the internal, predecisional deliberations of an agency, its officials or employees, or records used in such deliberations," citing Section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10). Finally, OGC maintained that "records or portions of the requested records are protected by the attorney-client or attorney-work product privileges," citing Section 102 of the RTKL, 65 P.S. § 67.102. Requesters appealed OGC's refusal to OOR that same day. (R.R. at 1a-3a.)

OGC, in response to the appeal, provided a position statement supporting the denial along with an affidavit from OGC's Communications Coordinator, Alexis Dinniman, dated October 29, 2019 (Dinniman Affidavit).⁵ (R.R. at 16a.) Ms. Dinniman attested in her affidavit:

5. The responsive records consist of applications submitted by individuals who seek appointment to a vacancy on Pennsylvania's Commonwealth Court. The applications are used by [OGC] and its designees to make recommendations regarding the filling of such vacancy[ ] and to assist the Office of Governor in [its] deliberations regarding such appointment.

6. These applications remain internal to [OGC] and its designees[ ] and are not provided to unrelated third parties.

(Id .)

On November 20, 2019, OOR granted Requesters’ appeal, in part, and denied it, in part. (Final Determination at 1.) OOR concluded that, because OGC failed to demonstrate the applications were records of individuals seeking employment with an agency, the exemption provided by Section 708(b)(7)(iv) of the RTKL did not apply. (Final Determination at 4-7.) OOR also concluded that, because OGC failed to demonstrate that the applications reflected internal predecisional deliberations, the exemption provided by Section 708(b)(10)(i)(A) of the RTKL also did not apply. (Final Determination at 7-10.) OOR directed OGC to provide Requesters with the responsive applications, but it authorized OGC to redact personal identification information.⁶ (Final Determination at 10.) This appeal followed.

II. ISSUES

On appeal,⁷ OGC argues that OOR erred when it concluded that the applications were not records of individuals seeking employment with an agency subject to the employment application exemption set forth in Section 708(b)(7)(iv) of the RTKL. OGC also argues that OOR erred when it concluded that applications were not protected by the deliberative process exemption provided by Section 708(b)(10) of the RTKL.

III. DISCUSSION

"The enactment of the RTKL in 2008 was a dramatic expansion of the public's access to government documents" and the "objective of the RTKL ‘is to empower citizens by affording them access to information concerning the activities of their government.’ " Levy v. Senate of Pa. , 619 Pa. 586, 65 A.3d 361, 381 (2013) (quoting SWB Yankees LLC v. Wintermantel , 615 Pa. 640, 45 A.3d 1029, 1042 (2012) ). "[C]ourts should liberally construe the RTKL to effectuate its purpose of promoting ‘access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.’ " Id. (quoting Allegheny Cnty. Dep't of Admin. Servs. v. A Second Chance, Inc. , 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) ). Generally, the RTKL requires state and local agencies to provide access to public records that are within their possession upon request.⁸ Furthermore, Section 305 of the RTKL, 65 P.S. § 67.305, makes clear that the presumption that a record within an agency's possession is a public record does not apply if it is proven that "(1) the record is exempt under Section 708 [of the RTKL]; (2) the record is protected by a privilege; or (3) the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree." Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), requires the agency that is receiving the RTKL request to bear the burden to prove, by a preponderance of the evidence, that the requested record is exempt from public access.⁹

A. Exemption Under Section 708(b)(7)(iv) of the RTKL

We first address whether OOR erred in concluding that the requested records were not exempt from disclosure under Section 708(b)(7)(iv) of the RTKL. Section 708(b)(7) of the RTKL generally exempts from access by a requester certain "records relating to an agency employee." Subsection (iv) of Section 708(b)(7) of the RTKL specifically exempts "[t]he employment application of an individual who is not hired by the agency." OGC argues that Section 708(b)(7)(iv) exempts the requested records—i.e. , applications of individuals who sought but did not receive an appointment to fill the vacant elected office of a commissioned Commonwealth Court judge—from access, because it exempts applications of individuals who are "not hired by an agency."

OGC, in support of its position, notes that Section 708(b)(7)(i) of the RTKL, 65 P.S. § 67.708(b)(7)(i), exempts from disclosure a "letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation." (Emphasis added.) OGC seems to suggest that Section 708(b)(7)(i)’s express exception to the exemption for letters of reference or recommendations related to appointments to fill a vacancy in an elected office constitutes a tacit acknowledgment that materials relating to appointments generally are protected under Section 708(b)(7) of the RTKL, 65 P.S. § 67.708(b)(7). OGC reasons that, if vacancy appointment applications are not among the types of material protected, then there would have been no need for the General Assembly to except letters of reference or recommendation for vacancy appointments from the general exemption.

Requesters counter that Section 708(b)(7)(iv) of the RTKL is not applicable to the request at issue, because Commonwealth Court judges are not "agency employees" within the limited meaning of the RTKL and, therefore, applications for appointment to the Commonwealth Court are not exempt from disclosure under the RTKL's employment application exemption in Section 708(b)(7)(iv). Requesters argue that the exception to the exemption is a reference to "public officials," not "agency employees," and that OGC's interpretation directly conflicts with the threshold qualification of Section 708(b)(7) of the RTKL that expressly provides that the record exemptions only apply to agency employees. Requesters’ argument relies upon a distinction for RTKL purposes between prospective "agency employees" and prospective "appointees for public office positions," such as Commonwealth Court judgeships.¹⁰

Requesters, in addition to their statutory construction argument, advance a policy argument as to why the requested records should not be exempt from access, emphasizing that the RTKL is "remedial legislation designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." See Bowling , 990 A.2d at 824. Accordingly, "exemptions from disclosure must be narrowly construed." Id. Requesters maintain that, "[j]ust as the public would have access to the full list of candidates who appear on the ballot were the Commonwealth Court position to be filled through the electoral process, the public is entitled to know who sought consideration for the vacant seat that was filled by gubernatorial appointment." (Requesters’ Brief at 9.)

When interpreting a statute, this Court is guided by the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. §§ 1501 - 1991, which provides that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa. C.S. § 1921(a). "The clearest indication of legislative intent is generally the plain language of a statute." Walker v. Eleby , 577 Pa. 104, 842 A.2d 389, 400 (2004). "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. C.S. § 1921(b). Only "[w]...