Recent Court Decision Further Increases OOR Access to Municipal Records

Decisions of the Pennsylvania Office of Open Records (“OOR”), concerning right-to-know requests, continues to trend toward allowing a public OOR scrutiny of municipal documents. The most recent case will cause municipalities and their solicitors to wonder how much - if any - detail should be included in their invoices, when such documents can be exposed to public and OOR scrutiny.

In June 2014, the Commonwealth Court of Pennsylvania issued a decision in the matter of Commonwealth Office of Open Records v. Center Township, __A.3d__ (Pa. Cmwlth. June 24, 2014). The case reached the Commonwealth Court when the Township refused to comply with an order by the OOR, and the OOR sought court action to enforce its order. The order at issue required the Township to provide the OOR with copies of material the Township claimed was exempt from disclosure under the attorney-client privilege. The Commonwealth Court ruled in favor of the OOR and held that the OOR is authorized to review records that are claimed to be privileged to determine whether the records really are exempt from disclosure under the Right to Know Law.

The case dealt with a request for production of invoices from the Township’s solicitor. The Township provided the requested records, but redacted portions of the bills that it claimed contained privileged material. The OOR requested that the Township provide unredacted copies of the bills for review by the OOR in order for it to determine whether the redacted portions were really privileged and exempt from disclosure. The Township refused to do so and argued that the OOR lacked the authority to conduct in camera (private) review of documents, and that the OOR could not render a determination on whether particular material is privileged under the attorney-client privilege. The Commonwealth Court rejected both of the Township’s arguments.

The Court held that as a “quasi-judicial” agency, the OOR had the authority to order the production of documents for in camera review, and that in such cases, the OOR could apply the provisions of the Right to Know Law and other applicable legal doctrines to determine whether a request falls within the ambit of attorney-client privilege, or other disclosure exemption.

The implications of the Center Township case appear to be sweeping. Public agencies will not be permitted to avoid disclosing documents it claims to be exempt from disclosure simply by asserting the applicable exemption.  Whether the agency asserts attorney-client privilege, work product doctrine, proprietary information or trade secrets exemption, or the public safety exception, it may be required to submit to the OOR the very material it believes to be exempt. This concept is sure to foster some level of discomfort among municipalities and other public agencies. 

However, the Center Township court was careful to identify the protections provided to requesters and agencies both under the Right to Know Law.  An agency may appeal an OOR decision to the Court of Common Pleas, which would delay any required disclosure at least until the court renders a decision, and likely during any further appeal. So, the fact that a potentially privileged document must be submitted to OOR for review does not necessarily mean that the document will ultimately be disclosed to the requester of the public, even if the OOR believes it should be.

Following Center Township public agencies should be additionally vigilant in responses to requests for privileged material. Any claims that material is privileged or otherwise exempt from disclosure should be supported by factual and legal authority. The OOR must be presented with sufficient factual information and legal argument to enable it to determine that material is exempt from disclosure.  Public agencies seeking to avoid disclosure of existing records should consult their solicitor for assistance in developing a response to a Right to Know request or on an OOR appeal.

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