Office of General Counsel v. C. Walker & LNP Media Group, Inc.

O
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Office of General Counsel,                       :
                        Petitioner               :
                                                 :
                v.                               :   No. 442 C.D. 2020
                                                 :   Argued: December 8, 2020
Carter Walker and LNP                            :
Media Group, Inc.,                               :
                               Respondents       :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge1
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                              FILED: February 23, 2021

       Office of General Counsel (OGC) petitions for review of the final
determination (Final Determination) of the Pennsylvania Office of Open Records
(OOR), dated February 28, 2020, which granted, in part, and denied, in part, an
appeal filed by Carter Walker (Walker) and LNP Media Group, Inc. (LNP)
(collectively, Requesters) under the Right-to-Know Law (RTKL).2,3 OOR granted

       1
       This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
       2
           Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
       3
          Requesters initiated the subject RTKL request and the appeal to OOR. OGC appealed
the OOR decision to this Court and filed its brief on September 16, 2020. Requesters did not file
a brief in this matter as directed by the Court through its October 29, 2020 order. Consequently,
by order dated November 20, 2020, we precluded Requesters from filing a brief and participating
in oral argument.
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 December 4, 2019, Requesters filed a RTKL request with OGC, seeking
“documentation of all individuals who submitted their names this year, 2019, for
consideration to be appointed to an open seat on [the Court of Common Pleas of
Lancaster County (Common Pleas)].                    Applications were due Nov. 15.”4
(Reproduced Record (R.R.) at 1a.) Shortly thereafter, OGC informed Requesters
that it required a thirty-day extension of time to respond to the request. (R.R. at 3a.)
On January 10, 2020, 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) of the RTKL, 65 P.S. § 67.708(b)(7). (Id.) 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 denial of
their records request to OOR on January 30, 2020. (R.R. at 11a.)
       4
         In Pennsylvania, when a judicial vacancy occurs on a court of common pleas in the middle
of a term, the Governor is empowered to appoint an individual as judge with the advice and consent
of two-thirds of the members elected to the Senate. Pa. Const. art. V, § 13(b). After the Governor’s
appointment and the Senate’s confirmation, the judge “serve[s] for a term ending on the first
Monday of January following the next municipal election more than ten months after the vacancy
occurs or for the remainder of the unexpired term whichever is less.”

Id. 2

       OGC, in response to the appeal, provided a position statement supporting its
denial along with an affidavit from OGC’s Agency Open Records Officer,
Marc Eisenstein, dated February 11, 2020 (Eisenstein Affidavit).5 (R.R. at 7a-9a.)
Mr. Eisenstein attested in his affidavit:
       4. The responsive records consist of applications submitted by
       individuals who seek appointment to a vacancy on [Common Pleas].
       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
       appointments.
       5. These applications are used to advise the Governor on candidates
       for employment pursuant to the Governor’s constitutional, executive
       power to fill vacancies on various courts within this Commonwealth.
       6. These applications remain internal to [OGC] and its designees[] and
       are not provided to unrelated third parties.
       7. These applications contain personal identification and financial
       information of the applicants, including addresses, home phone
       numbers, email addresses, personal and family information, financial
       statements and cell phone numbers, which are exempt from access.

(R.R. at 5a, 6a.)
       On February 28, 2020, 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

       5
          OGC raised the attorney-client and attorney-work product privileges in its response to
the RTKL request but did not address either privilege in the OOR appeal or the appeal before this
Court. Accordingly, we deem OGC’s claims that the requested records are protected by either or
both privileges waived, and the argument will not be considered in this opinion.

                                               3
the RTKL 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, 11.) 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)(i)(A) of the RTKL.




       6
          It appears that this authorization to allow OGC to redact personal identification
information is the extent to which OOR denied Requesters’ appeal. As background, OGC
requested in its position statement to OOR that if OOR reversed any portions of its response to the
RTKL request, thereby requiring the production of responsive documents, OOR should direct that
email addresses of individuals, personal financial information, and telephone numbers or personal
information be redacted pursuant to Section 708(b)(6) of the RTKL, 65 P.S. § 67.708(b)(6).
(See Final Determination at 10.) Section 708(b)(6) of the RTKL exempts personal identification
information from disclosure, including “a person’s Social Security number, driver’s license
number, personal financial information, home, cellular or personal telephone numbers,
personal e-mail addresses, employee number or other confidential personal identification
number[,]” “[a] spouse’s name, marital status or beneficiary or dependent information.” 65 P.S.
§ 67.708(b)(6)(i)(A), (B).
       7
          On appeal from OOR in RTKL cases, this Court’s standard of review is de novo, and our
scope of review is plenary. Bowling v. Off. of Open Recs., 

990 A.2d 813

(Pa. Cmwlth. 2010),
aff’d, 

75 A.3d 453

, 477 (Pa. 2013).

                                                4
                                   III. CONCLUSION
       For the reasons set forth in our opinion in a companion case, Office of General
Counsel v. Brad Bumsted and LNP Media Group, Inc., ___ A.3d ___ (Pa. Cmwlth.,
No. 1764 C.D. 2019, filed February 23, 2021), we affirm the Final Determination to
the extent that it rejected OGC’s claim that the requested records were exempt under
Section 708(b)(7)(iv) and 708(b)(10)(i)(A) of the RTKL. We will vacate the portion
of the Final Determination that ordered OGC to provide the Requesters with the
applications of the individuals who were not selected for the judicial vacancy
appointment.8 We remand this matter to OOR for the sole purpose of reconsidering
the portion of its decision ordering disclosure of the requested records in light of the
Pennsylvania Supreme Court’s decision in PSEA.




                                               P. KEVIN BROBSON, Judge


Judge Crompton did not participate in the decision of this case.




       8
        It is unclear from the record (1) whether OGC notified the individuals whose applications
OGC must produce, and (2) whether OGC performed the balancing test required by Pennsylvania
State Education Association v. Department of Community and Economic Development, 

148 A.3d 142

, 158 (Pa. 2016) (PSEA), and its progeny.

                                               5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Office of General Counsel,             :
                        Petitioner     :
                                       :
            v.                         :   No. 442 C.D. 2020
                                       :
Carter Walker and LNP                  :
Media Group, Inc.,                     :
                         Respondents   :



                                     ORDER


      AND NOW, this 23rd day of February, 2021, it is hereby ordered that the
February 28, 2020 Final Determination of the Pennsylvania Office of Open Records
(OOR) is AFFIRMED, in part, and VACATED, in part.                This matter is
REMANDED to OOR for further proceedings consistent with the reasons set forth
in our opinion in a companion case, Office of General Counsel v. Brad Bumsted and
LNP Media Group, Inc., ___ A.3d ___ (Pa. Cmwlth., No. 1764 C.D. 2019, filed
February 23, 2021).
      Jurisdiction relinquished.




                                       P. KEVIN BROBSON, Judge

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