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expressing that, in view of the RTKL’s overriding purpose of ensuring transparency in Pennsylvania government, exceptions to disclosure are to be construed narrowly
Summary of this case from Pa. Interscholastic Athletic Ass'n v. CampbellOpinion
No. 44 EAP 2019 No. 45 EAP 2019
04-29-2021
CHESTER WATER AUTHORITY, Appellant v. PENNSYLVANIA DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, Appellee Chester Water Authority, Appellant v. Pennsylvania Department of Community and Economic Development, Appellee
Megan Anne Guernsey, Andrew Kabnick Garden, Conrad O'Brien PC, Kevin Dooley Kent, Philadelphia, for Appellant. Scott William Longwell, J. Michael Adams, Jr., Sean Christopher Campbell, Pennsylvania Department of Community & Economic Development, Harrisburg, Justin Andrew Zimmerman, for Appellee. Zachary Nicholas Gordon, Patrick Kennedy Cavanaugh, Del Sole Cavanaugh Stroyd, LLC, Pittsburgh, for The Pittsburgh Post-Gazette, Appellant Amicus Curiae. Scott Everett Coburn, Pennsylvania State Association of Township Supervisors, Enola, for Pennsylvania State Association of Township Supervisors, Appellee Amicus Curiae.
Megan Anne Guernsey, Andrew Kabnick Garden, Conrad O'Brien PC, Kevin Dooley Kent, Philadelphia, for Appellant.
Scott William Longwell, J. Michael Adams, Jr., Sean Christopher Campbell, Pennsylvania Department of Community & Economic Development, Harrisburg, Justin Andrew Zimmerman, for Appellee.
Zachary Nicholas Gordon, Patrick Kennedy Cavanaugh, Del Sole Cavanaugh Stroyd, LLC, Pittsburgh, for The Pittsburgh Post-Gazette, Appellant Amicus Curiae.
Scott Everett Coburn, Pennsylvania State Association of Township Supervisors, Enola, for Pennsylvania State Association of Township Supervisors, Appellee Amicus Curiae.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE SAYLOR
In these consolidated appeals arising under the law generally requiring public access to governmental records in Pennsylvania, the lead issue is whether a statutory deliberative-process exception extends to records exchanged between a Commonwealth agency and private consultants.
I. Background
For almost twenty-five years, the City of Chester has been designated as a distressed municipality under the Financially Distressed Municipalities Act or "Act 47," which is administered by the appellee, the Department of Community and Economic Development (the "Department" or "DCED"). See 53 P.S. § 11701.121. Per this enactment, among the Department's other responsibilities, the agency is tasked with appointing coordinators, which may be DCED employees or a private consultants, to formulate plans to address the financial problems of distressed municipalities. See id. § 11701.221(a), (b).
Act of July 10, 1987, P.L. 246, No. 47 (as amended 53 Pa.C.S. §§ 11701.101-11701.712).
In 2016, DCED entered into a professional services contract with Econsult Solutions, Inc., a private consulting firm, to act -- in the capacity of an independent contractor -- as the recovery coordinator for the City of Chester. Econsult, in turn, subcontracted with Fairmount Capital Advisors, Inc. and McNees, Wallace & Nurick, LLC to serve as subcontractors, respectively providing professional financial and legal services.
In the present briefing, the Department intermittently refers to Econsult and the Fairmount Capital firms as "agents for DCED." See Brief for Appellee at 8. The governing professional services contract, however, explicitly defines Econsult's relationship with the Department as being that of an independent contractor and admonishes that "[n]othing contained herein shall be so construed as to create an ... agency ... relationship[.]" Contract for Professional Services dated Feb. 23, 2016, No. 4000019873, art. IV (DCED). Since the Department offers no accounting, on this point, for the contract that it otherwise recognizes as controlling, we reject the suggestion of an agency relationship from the outset.
Significantly, Act 47 recovery plans must address numerous factors potentially useful in mitigating financial distress, including "[a]n analysis of whether ... privatization of existing municipal services is appropriate and feasible[.]" Id. § 11701.241(8). Accordingly, Econsult was obliged to assess the potential privatization of local municipal authorities -- including Appellant, Chester Water Authority (the "Authority") -- and estimate the impact on the City's financial health. It was (and is) the Authority's position, however, that a cash infusion from the sale of the water authority is not in the best interests of the public, but rather, would benefit only those with an interest in an appearance of a successful financial turnaround for the City in the short term. The Authority therefore sought to remain abreast of the recovery planning.
In late 2017, the Authority submitted two lengthy requests to DCED under the Right to Know Law, which generally requires Commonwealth agencies to provide access to public records upon request. See 65 P.S. § 67.301. The Authority requested copies of documents reflecting communications among the Department, Econsult, and the Fairmount Capital and McNees firms related to the potential sale of the water authority. The Department made a partial tender but redacted and/or withheld a substantial quantity of materials.
Act of Feb. 14, 2008, P.L. 6, No. 3 (as amended 65 P.S. §§ 67.101 -67.3104 ) (the "RTKL" or the "Law").
The requests were tendered by Nolan Finnerty, who was a paralegal with a law firm retained by the Authority. The Authority later requested, and was permitted by this Court, to be substituted as the party-in-interest in the present litigation. For convenience, references to submissions and actions by Mr. Finnerty before DCED, the Office of Open Records, and in the Commonwealth Court are attributed to the Authority herein.
As relevant here, DCED asserted that disclosure of the withheld materials was not required under Section 708(b)(10)(i)(A) of the Law, which excepts from the general requirement for disclosure of public records:
A record that reflects:
(A) The internal , predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency ....
65 P.S. § 67.708(b)(10)(i) (emphasis added). The Department explained that the materials contained "internal staff and contractor recommendations, comments to documents, draft proposals, and discussions that played a role in the Department's Act 47 decision making process." DCED also invoked the privilege applicable to lawyer-client communications and the attorney work-product doctrine. See 65 P.S. § 67.102 (defining, in relevant part, "public record" and "privilege").
Justices Dougherty and Wecht highlight that the statute proceeds to encompass "any research, memos or other documents used in the predecisional deliberations." 65 P.S. § 67.708(b)(10)(i). As the Commonwealth Court made clear from the outset of its analysis, however, "[h]ere, the parties dispute only the first element of the internal, deliberation exception, whether the withheld records were " ‘internal to the’ Department [.]" Finnerty v. DCED , 208 A.3d 178, 186 (Pa. Cmwlth. 2019) (emphasis added). Significantly, the intermediate court quite appropriately limited its review according to the arguments with which it was presented.
Accordingly, we leave it for another day -- when we would have the benefit of a pertinent decision from the intermediate court and relevant advocacy -- whether (or to what degree) the research-memos-documents rubric of Section 708(b)(10)(i)(A) might serve as an exception to the statute's specified focus on matters internal to the agency.
Letter from Christopher C. Houston, Chief Counsel of the Governor's Office of General Counsel to Nolan Finnerty dated January 12, 2018, in RTKL-2017-184 (DCED), at 2; Letter from Christopher C. Houston, Chief Counsel of the Governor's Office of General Counsel to Nolan Finnerty dated January 19, 2018, in RTKL-2017-183 (DCED), at 2.
The Authority proceeded to lodge an appeal with the Office of Open Records (the "OOR"). See 65 P.S. §§ 67.1101 -1102 (prescribing for appeals before the OOR and consideration by an appeals officer). The appeals officer declined to conduct a hearing but undertook in camera review of some documents supplied by the Department. Final determinations ensued in which the appeals officer found, in relevant part, that records that DCED had exchanged with Econsult and the Fairmount Capital and McNees firms were internal to the agency, for purposes of the Section 708(b)(10)(i)(A) exception, on account of the contractual relationships among the parties. Finnerty v. DCED , No. AP 2018-0194, slip op. at 10-11, 2018 WL 3091381 (OOR May 14, 2018) ; Finnerty v. DCED , No. AP 2018-0247, slip op. at 16-17, 2018 WL 3425352 (OOR July 11, 2018). In this regard, the appeals officer's reasoning paralleled the position of some federal courts interpreting the federal Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). FOIA protects from disclosure "inter-agency or intra-agency memorandums which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (emphasis added). As the Supreme Court of the United States has explained, some federal circuit courts of appeals have implemented a "functional approach" to the conception of intra-agency documents and adopted a "consultant corollary," extending the exemption to communications between government agencies and outside consultants hired by them. Dep't of Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 7-11, 121 S. Ct. 1060, 1065-67, 149 L.Ed.2d 87 (2001) (quoting 5 U.S.C. § 552(b)(5) ). These courts generally reason that, in "eliciting candid and honest advice from outside consultants," it is "crucial" that the agency and the consultant can expect that their communications will remain confidential. Nat'l Inst. of Military Justice v. DOJ , 512 F.3d 677, 685 (D.C. Cir. 2008) ; see also id. at 683 ("[F]ederal agencies occasionally will encounter problems outside their ken, and it clearly is preferable that they enlist the help of outside experts skilled at unraveling their knotty complexities."). Notably, to date, the Supreme Court of the United States has declined to address the propriety of this consultant corollary in FOIA jurisprudence. See Klamath , 532 U.S. at 12, 121 S. Ct. at 1067.
The OOR's approach in treating deliberations between agencies and consultants as internal to the agencies apparently traces to Spatz v. City of Reading , No. 2010-0655, slip op ., 2010 WL 3925139 (OOR Sep. 7, 2010).
The appeals officer also determined that the redacted content was predecisional and deliberative, for purposes of Section 708(b)(10)(i)(A), because it reflected "proposed courses of action and budget-related recommendations concerning the next steps in the City's ongoing financial recovery process." Finnerty , No. AP 2018-0194, slip op. at 13 ; see also Finnerty , No. AP 2018-0247, slip op. at 20. This facet of the determinations is not presently at issue.
The appeals officer also found that an attorney-client relationship existed between the Department and the McNees firm, and that DCED and Econsult were co-clients of that firm. See Finnerty , No. AP 2018-0194, slip op. at 19 ; see also Finnerty , No. AP 2018-0247, slip op. at 15. For these reasons, he concluded that a portion of the withheld records were protected by the attorney-client privilege and the work-product doctrine. See id.
The Authority filed petitions for review in the Commonwealth Court. Just before oral argument convened, the Department made an additional tender, asserting that it was disclosing all documents that had initially been withheld on the basis of the attorney-client and/or work-product privileges. DCED also sought a stipulation that as a result of the production, the issues were moot, but the Authority did not agree.
Upon its review, the Commonwealth Court affirmed. See Finnerty v. DCED , 208 A.3d 178 (Pa. Cmwlth. 2019) ; see also Finnerty v. DCED , 1090 C.D. 2018, slip op. , 2019 WL 1858392 (Pa. Cmwlth. Apr. 25, 2019). As concerns the statutory deliberative process privilege, the intermediate court's reasoning was consistent with the functionalist approach and the consultant corollary prevailing in some federal courts. While recognizing the legislative policy generally favoring openness and the concomitant requirement for exceptions to be narrowly construed, see, e.g. , PSP v. Grove , 640 Pa. 1, 25, 161 A.3d 877, 892 (2017), the court nevertheless opined that:
[A]s it pertains particularly to the internal, predecisional deliberation exception, [the statutory deliberative process] exception " ‘benefits the public and not the officials who assert the privilege’ " by recognizing " ‘that if governmental agencies were forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.’ "
Finnerty , 208 A.3d at 187 (quoting McGowan v. DEP , 103 A.3d 374, 381 (Pa. Cmwlth. 2014) (quoting, in turn, Joe v. Prison Health Servs., Inc. , 782 A.2d 24, 33 (Pa. Cmwlth. 2001) )).
As such, the Commonwealth Court reasoned, "it serves, rather than hinders, the RTKL to interpret ‘internal to the agency’ as including the predecisional, deliberative information that was exchanged between the Department and E–consult, McNees, and Fairmount." Id. The intermediate court found this treatment to be particularly apt in the Act 47 setting, in which the Legislature contemplated that DCED might require assistance from consultants to address the many complex problems facing distressed municipalities. See id. at 187-88. And, like the federal courts applying the consultant corollary, the court stressed the desirability of a frank exchange of ideas and opinions between the agency and its consultants. See id. at 188 ; see also id. at 185 ("[I]t would serve no compelling public interest and undermine the purpose of the internal, predecisional deliberation exception to require disclosure of records shared between an agency, a contractor, and an essential subcontractor.").
The Commonwealth Court also highlighted that its assessment was consistent with the OOR's interpretation, which it is authorized to consult in discerning the legislative intent. See Finnerty , 208 A.3d at 188 (citing, inter alia , 1 Pa.C.S. § 1921(c) ).
As to the attorney-client and work-product privileges, the Commonwealth Court indicated that, at oral argument, the Authority had agreed that the records withheld as privileged under the attorney-client and work-product privileges had been disclosed. See id. at 180. Accordingly, the intermediate court deemed the relevant challenge to be moot. See id. Summarily, the court also pronounced that "none of the exceptions to the mootness doctrine apply." Id.
II. The Consultant Corollary
Presently, the Authority argues that, in construing Section 708(b)(10)(i)(A), the Commonwealth Court failed to accord primacy to the plain meaning of the word "internal." See, e.g. , Reply Brief for Appellant at 1 ("Internal means internal . It does not mean external to the agency, pursuant to a contract with the agency, or hired by agency contractors or consultants." (emphasis in original)); Brief for Amicus The Pittsburgh Post-Gazette at 3-4 ("Internal cannot mean both inside and outside the organization."). It is the Authority's position that a functionalist approach and the attendant consultant corollary are unsupportable upon a plain-meaning interpretation of the statute.
To the degree that the statute suffers from any ambiguity, the Authority contends that the Commonwealth Court afforded insufficient weight to the RTKL's policy of openness and transparency. Accord id. at 3-4 ("[T]he goal of the [Law] is transparency and that goal would be furthered by allowing the public to observe the influence of third parties when agencies make controversial decisions."). The Authority also observes that the Commonwealth Court and the Department have failed to recognize the emerging split among federal circuit courts of appeals concerning the appropriateness of the consultant corollary, with a developing line of decisions rejecting the approach as being counter-textual. See, e.g. , Rojas v. FAA , 927 F.3d 1046, 1058 (9th Cir. 2019), reh'g en banc granted , 948 F.3d 952 (9th Cir. 2020) ; Lucaj v. FBI , 852 F.3d 541, 548-49 (6th Cir. 2017).
The Department, on the other hand, embraces the Commonwealth Court's treatment, stressing its belief that the consultant corollary promotes efficient governmental administration and is essential to candid communications between agencies and consultants. Indeed, according to the agency, rejection of this corollary would be absurd and unreasonable, particularly because it would "create a burdensome distinction between Act 47 coordinators which are employees of DCED and those coordinators which are consultants or consulting firms." Brief for Appellee at 22-23 (citing 53 P.S. § 11701.221(b) ).
See Brief for Appellee at 2 ("Forcing an agency to release records which reflect internal, predecisional deliberations between an agency and a third-party contractor will inevitably have a chilling effect on the free and candid exchange of ideas, and, in this case, the quality of administrative decision-making of those parties assisting a financially distressed municipality facing economic failure will suffer."); accord Brief for Amicus Pa. State Ass'n of Twp. Supervisors & Cnty. Commr's Ass'n of Pa. at 2 (positing that the OOR and the Commonwealth Court's construction of Section 67.708(b)(10)(i)(A) "permits agencies to collect information necessary to make decisions without the risk that disclosure of that information at the preliminary, predecisional stage will injure the financial or other interests of the agencies and, by extension, their residents and taxpayers").
At times, the Department does not confine its argument to "consultants", but urges that communications and records shared between a Commonwealth agency and a "third-party contractor must remain ‘internal to the agency.’ " Brief for Appellee at 3. In other passages of its brief, the agency hones in upon Act 47 consultants, thus suggesting that there may be something unique about them -- as contrasted with other consultants -- justifying application of what could be termed an "Act 47 consultant corollary." See, e.g. , id. at 18-19, 22.
While the consultant corollary is supported by a colorable policy-based rationale, a broader "third-party contractor corollary" is both non-textual and lacks any similarly focused justification. We also believe that, had the General Assembly intended uniquely for communications between agencies and Act 47 recovery coordinators -- but not other consultants -- to be excepted from the general requirement for disclosure under the RTKL, it would have said so.
Accordingly, our remaining analysis is of the viability of a generalized consultant corollary under the Law.
There is no dispute that the materials for which the Department has invoked the statutory privilege in issue are public records of an agency as defined in the RTKL and thus subject to public disclosure unless the exception applies. See generally 65 P.S. § 67.701 ("Unless otherwise provided by law, a public record ... shall be accessible for inspection and duplication in accordance with this act."). Both parties also apprehend that, consistent with the Law's goal of promoting government transparency and its remedial nature, see SWB Yankees LLC v. Wintermantel , 615 Pa. 640, 662, 45 A.3d 1029, 1042 (2012) (explaining that the objective of the RTKL is to empower citizens by affording them access to information concerning the activities of their government), exceptions to the requirement for disclosure of public records are to be narrowly construed. See Grove , 640 Pa. at 25, 161 A.3d at 892.
As the Authority stresses, Section 708(b)(10)(i)(A) prohibits disclosure of "internal , predecisional deliberations of an agency, its members, employees or officials," as well as deliberations between such individuals and another agency. 65 P.S. § 67.708(b)(10)(i)(A) (emphasis added). As a third-party contractor and subcontractors, Econsult and the Fairmount Capital and McNees firms plainly are not agencies, members, employees or officials. Accord Rojas , 927 F.3d at 1055 ("A third-party consultant ... is not an agency" and "’neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders.’ " (quoting Klamath , 532 U.S. at 9, 121 S. Ct. at 1060 )). See generally John C. Brinkerhoff Jr., FOIA's Common Law , 36 YALE J. ON REG . 575, 582–84 (2019) (criticizing that consultant corollary on the basis that "[i]t is doubtful that any reasonable reading of ‘inter-agency or intra-agency’ could encompass third parties"). And "internal," relative to organized structures, commonly means "of, relating to, or occurring on the inside" -- or, in other words, within -- the organization. MERRIAM-WEBSTER DICTIONARY , https://www.merriam-webster.com/dictionary/internal (last visited Apr. 27, 2020).
The RTKL defines "agency" to mean four agencies (Commonwealth, Local, Legislative, and Judicial), all of which have specific definitions centered on governmental status. See 65 P.S. § 67.102. None of the definitions include outsiders.
The words "members, employees or officials" are all undefined in the Law, and thus, we take them according to their common meaning. See Grove , 640 Pa. 1 at 25, 161 A.3d at 892 (citing 1 Pa.C.S. § 1903(a) ).
Accordingly, the statutory provision facially does not apply to communications with outside consultants. See generally N. Hills News Record v. Town of McCandless , 555 Pa. 51, 58, 722 A.2d 1037, 1040 (1999) (explaining that, where the provisions of a statute are clear, courts "are forbidden from diverging from the plain meaning under the mere pretext of pursuing the spirit of the enactment."). And the requirement of narrow construction further solidifies the interpretation that private consultants providing services as independent contractors do not qualify as agencies, members, employees, or officials who may engage in protected internal communications.
To the degree that a further policy assessment would be relevant, we agree with the Authority and its amicus that a balancing of the aim to promote the free exchange of deliberative communications against the Law's overarching policy of openness is required. It is the General Assembly's prerogative, however, to conduct the necessary balancing. See generally Schock v. City of Lebanon , 653 Pa. 330, 355-56, 210 A.3d 945, 961 (2019) (recognizing the role of the Legislature as the policy-making branch). And the balance that the Assembly has presently stricken protects only deliberations that are internal to an agency and its members, employees or officials, or represent deliberative inter-agency communications. Accord Lucaj , 852 F.3d at 549 (recognizing the benefits of a policy that protects frank discussions but emphasizing that, "in the end, Congress chose to limit the exemption's reach [only] to ‘inter-agency or intra-agency memorandums or letters’ " (quoting 5 U.S.C. § 552(b)(5) )). See generally Brinkerhoff, 36 YALE J. ON REG . at 583 ("The government's ‘special need[s]’ [relative to consultations with outsiders] have nothing to do with whether a memorandum is ‘inter-agency or intra-agency.’ " (quoting Soucie v. David , 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) )).
In our judgment, the Department unduly downplays the interest of the citizenry in access to the work product of private consultants retained by the government, in light of the public character of the funds used for their remuneration. It is not an exaggeration to say that some members of the general public would regard consulting contracts of the character of those in issue as being potentially "lucrative" ones. Brief for Appellant at 8. Since "the protection of the public fisc is a matter that is of interest to every citizen," Brock v. Pierce Cty. , 476 U.S. 253, 262, 106 S. Ct. 1834, 1840, 90 L.Ed.2d 248 (1986), "there is an obvious legitimate public interest in how taxpayers' money is being spent, particularly when the amount is large." United States v. Suarez , 880 F.2d 626, 630 (2d Cir. 1989) ).
Significantly, the Legislature knows how to protect agency communications with outsiders; indeed, it has done so in other provisions of the Law. See, e.g. , 65 P.S. § 708(b)(26) (excepting from disclosure, inter alia , pre-acceptance procurement proposals and bidder financial information). And it would have been a straightforward matter, in Section 708(b)(10)(i)(A), to have listed outside consultants along with "members, employees or officials," but the fact of the matter is that the General Assembly did not do so. In light of the strong, competing policy interests involved, we rest our decision upon the statutory language and leave consideration of any adjustments to the open-records regime to the policy-making branch. Accord Rojas , 927 F.3d at 1058 (explaining that, if adherence to the statutory scheme as written proves unworkable, "the proper remedy lies with Congress, not the courts").
We hold that Section 708(b)(10)(i)(A) does not serve to insulate communications exchanged between a Commonwealth agency and a private consultant from the Law's general requirement for openess.
III. The Attorney-Client and Work-Product Privileges
The Authority next argues that, based on an "unverified and unsolicited eleventh-hour production on the eve of argument, the Commonwealth summarily and without analysis dismissed the issues [that the Authority] raised under the attorney client privilege and work product doctrine." Brief for Appellant at 28. The Commonwealth Court explained, however, that the Authority's counsel agreed, at oral argument, that the records withheld as privileged attorney-client communications and under the work-product doctrine had been produced. See Finnerty , 208 A.3d at 180. Presently, the Authority fails to acknowledge the asserted concession in its brief, much less contest the Commonwealth Court's account of it. As such, we have no basis for doubting the intermediate court's position that the matter is settled and, accordingly, the controversy has been mooted.
Invoking the exceptions to the mootness doctrine, the Authority further contends that the attorney-client-privilege and work-product-doctrine issues should be decided under the exception to the mootness doctrine for matters that are capable of repetition yet evading review. See DEP v. Cromwell Twp., Huntingdon Cty. , 613 Pa. 1, 21, 32 A.3d 639, 652 (2011). According to the Authority,
[i]f the Commonwealth Court's brief decision on this issue is permitted to stand, there would be nothing to preclude the Department from taking this path each and every time; withholding documents under sham claims of privilege and then, when it looks as if its unreasonable stance may be subject to scrutiny, producing something to evade a decision on the merits.
Brief for Appellant at 29; accord id. at 30 ("Allowing these issues to be considered moot on this set of facts and with no analysis from the court leaves the Department emboldened and empowered to continue to engage in such dilatory and improper tactics."). Indeed, the Authority claims that it is likely that additional, and purportedly unsupportable, claims of privilege will be lodged in the continuing disputes over public disclosure related to the evaluation of potential privatization of the water authority that was or is underway. See id. at 31.
Initially, the Authority does not identify the applicable standard of review pertaining to the Commonwealth Court's determination that none of the exceptions to the mootness doctrine apply. While this Court has indicated that the issue of mootness is a pure question of law subject to de novo review, Commonwealth v. Dixon , 589 Pa. 28, 35, 907 A.2d 468, 472 (2006), it has also emphasized the discretionary nature of the decision whether to invoke an exception to the mootness doctrine and found that an abuse of discretion standard applied to judicial review of a quasi-judicial determination of mootness. See Ass'n of Pa. State Coll. & Univ. Faculties v. PLRB , 607 Pa. 461, 470-72, 8 A.3d 300, 305-07 (2010). Facially, the same rationale would seem to apply to judicial assessment of the mootness exceptions on appellate review. Absent developed advocacy on the subject, however, we decline to definitively resolve whether a de novo or abuse of discretion standard should apply in the present context.
Responding to the Authority's contentions, as was the case in Association of Pennsylvania State College & University Faculties , we are confident that the judicial system can identify and police serial, unjustified evasions by a Commonwealth agency. See id. at 473, 8 A.3d at 307. Accordingly, we decline to disturb the Commonwealth Court's ruling on the exception to the mootness doctrine for matters that are capable of repetition yet evading review based on the speculative prediction of serial, unjustified assertions of privilege followed by withdrawals.
Finally, the Authority contends that the issues in this case should be excepted from the mootness doctrine because they are of great and immediate public importance. See Cromwell Twp., Huntingdon Cty. , 613 Pa. at 21, 32 A.3d at 652 (referencing the public-importance exception). According to the Authority, every right-to-know request implicates this exception. See Brief for Appellant at 31 ("Pennsylvania has held that the duty of government officials to provide nonpublic information pursuant to a Right to Know Act request involves a matter of great public importance" (citing Lewis v. Monroe Cty. , 737 A.2d 843, 848 (Pa. Cmwlth. 1999) ). The argument continues,
This is especially true when the very existence of a public municipality authority serving more than 200,000 residents and businesses throughout Chester County, Delaware County and the City of Chester safely and effectively is threatened, and information relative thereto is intentionally hidden at the direction and behest of our Commonwealth.
Brief for Appellant at 31.
We do not read the Commonwealth Court's cryptic invocation of the mootness exceptions in Lewis as establishing that the public-importance exception applies in every Right-to-Know-Law controversy. Notably, the Lewis court intermixed the two exceptions and pronounced, in a conclusory fashion, that the hybrid applied. See Lewis , 737 A.2d at 848 ("[C]ourts will review such matters when the issue raised is one of important public interest, capable or repetition unless settled and apt to elude review. We see this as such a case." (citations omitted)).
But the general, prudential approach in Pennsylvania remains that courts do not review moot questions, see, e.g. , Cromwell Twp., Huntingdon Cty. , 613 Pa. at 20, 32 A.3d at 651, and not every claim arising under the Right to Know Law crosses the high threshold for exception. Additionally, in the absence of a continuing course of conduct involving the repeated assertion and withdrawal of privilege claims by the Department -- which may be evaluated in its own right should it arise -- we decline to rest a decision to depart from the general rule upon claims of malfeasance which are undeveloped as of record.
For example, the Authority hasn't undertaken to demonstrate that any discrete record that was withheld per the attorney-client privilege or work product doctrine and later produced had been unlawfully withheld in the first instance. In this regard, there is no bar to voluntary disclosure to resolve a controversy.
IV. Order
The order of the Commonwealth Court is reversed as concerns the application of statutory deliberative-process privilege and affirmed as to the mootness of the attorney-client privilege and work product doctrine issues.
Justices Todd, Donohue and Mundy join the opinion.
Justice Dougherty files a concurring opinion.
Justice Wecht files a dissenting opinion in which Chief Justice Baer joins.
JUSTICE DOUGHERTY, concurring I concur in the result, and I join Part II of the majority opinion only to the extent it holds Subsection 708(b)(10)(i)(A) of the Right-to-Know Law (RTKL), 65 P.S. §§ 67.101 - 67.3104, does not prevent disclosure of communications exchanged between a Commonwealth agency and its private consultant's subcontractors. I view this specific holding as resolving the RTKL issue presently before the Court. I write separately to express my distinct views concerning this RTKL exception.
I fully agree with Part III of the majority's analysis. See Majority Opinion at 1113-16 (resolving attorney-client privilege and work-product doctrine issues).
65 P.S. §§ 67.101 -67.3104.
As the dissent observes — and, as demonstrated by the disparate positions of my learned colleagues — the statutory provision protecting predecisional deliberations from disclosure, particularly when viewed in its entirety, is open to at least two reasonable interpretations. See Dissenting Opinion at 1119-20. As explained by the majority, Subsection 708(b)(10) initially provides exception from disclosure for a record that reflects "[t]he internal , predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency[.]" Majority Opinion at 1109, quoting 65 P.S. § 67.708(b)(10)(i)(A) (emphasis in opinion). This language indicates communications with contracting and subcontracting consultants are not exempt from disclosure under the exception because they plainly are not members, employees, or officials of an agency. See id . at 1112-13. Yet, as noted by the dissent, the provision goes on to include predecisional deliberations relating to, inter alia , a "contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations [,]" and this language indicates "any" documents used in predecisional deliberations are protected from disclosure by the exception, without reference to their particular source. 65 P.S. § 67.708(b)(10)(i)(A) (emphasis added); see Dissenting Opinion at 1119. In my view, a fair reading of the fuller provision reasonably raises the question of whether "internal" describes the predecisional deliberations only, or whether, in order to satisfy the exception's criteria, the subject documents must also be internal.
Compounding this textual ambiguity, our jurisprudence has interpreted the plain language of the RTKL to treat records of contractors differently from records of subcontractors for purposes of determining whether a requested record is a public record (notwithstanding whether any exception or other privilege bars disclosure). Under Subsection 506(d) of the RTKL, records in the possession of a third-party contractor that relate to the governmental function the third party contracts to perform "shall be considered a public record of the agency for purposes of [the RTKL,]" while, pursuant to this Court's ruling, the records of a subcontractor are not. 65 P.S. § 67.506(d)(1) ; Dental Benefit Providers, Inc. v. Eiseman , 633 Pa. 205, 124 A.3d 1214, 1223 (2015) ("[T]he [RTKL] channels access to third-party records through Section 506(d)(1) [and] such provision contemplates an actual contract with a third party in possession of salient records."). Because the records of an agency's contractor are, like the records of the agency, presumed public unless a Subsection 708(b) exception or other exemption applies, see 65 P.S. § 67.305(a) (records of an agency presumed public), but the records of a subcontractor are not presumed public, it stands to reason that the contractor's communications with the agency might be subject to the limitations on disclosure provided by the RTKL, including the predecisional deliberation exception, in the same manner as those limitations apply to internal agency communications, while the agency's communications with a subcontractor should not enjoy that protection. Thus, there may be good reason to treat communications of Econsult differently from the communications of the subcontracting firms. It appears that, in applying its holding to an agency's "outside consultants," the majority does not make this distinction; however, I draw attention to this plausible difference only to underscore the lack of clarity imbued in this RTKL provision, and further note that the issue accepted for review by this Court was limited to the predecisional deliberation exception as it might apply to agency subcontractors. See Finnerty v. DCED , 222 A.3d 755 (Pa. 2019) (per curiam ) (granting Petition for Allowance of Appeal of "[w]hether the Commonwealth Court erred in extending the internal, predecisional deliberative exception under Section 708(b)(10)(i) of the Pennsylvania Right to Know Law to public information shared with agency subcontractors having no direct or proper contractual relationship with the agency") (emphasis added); but see Majority Opinion at 1113 ("[T]he statutory provision facially does not apply to communications with outside consultants.").
Subsection 501(d)(1) provides,
A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.
65 P.S. § 67.506(d)(1).
53 Pa.C.S. §§ 11701.101-11701.712.
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In fulfilment of our duty to interpret the language of the Commonwealth's statutes, our goal is to ascertain and effectuate the intent of the Pennsylvania General Assembly. 1 Pa.C.S. § 1921(a). While the federal Freedom of Information Act (FOIA) and the RTKL share some attributes, they are by no means identical. Textually, RTKL Subsection 708(b)(10) contains multiple subsections outlining specific parameters of the predecisional deliberation exception, and bears little similarity to the analogized FOIA Exemption 5 which, somewhat more broadly, exempts from disclosure the inter- and intra-agency communications "that would not be available by law" except in litigation. 5 U.S.C. § 552(b)(5). Furthermore, while the federal FOIA jurisprudence cited by both the majority and the dissent might illuminate some contours of assessing whether a contractor's or subcontractor's communications are internal as contemplated by the deliberative process privilege doctrine, they are neither binding on this Court nor consistent or conclusive. Consequently, I prefer to look to state law principles to undertake an analysis of this RTKL exception.
Exemption 5 of FOIA exempts from public availability "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested[.]" 5 U.S.C. § 552(b)(5).
Where the words of a statute are ambiguous, as I view this RTKL provision to be, we may ascertain the intention of the General Assembly by considering, inter alia , "[t]he occasion and necessity for the statute[,]" "[t]he mischief to be remedied[,]" "[t]he object to be attained[,]" "[t]he former law, if any, including other statutes upon the same or similar subjects[,]" and "[t]he contemporaneous legislative history." 1 Pa.C.S. § 1921(c). We presume "the General Assembly intends to favor the public interest as against any private interest[,]" id . § 1922(5), and remedial legislation, including the RTKL, "shall be liberally construed to effect [its] objects and to promote justice[,]" id . § 1928(c). See Levy v. Senate of Pa. , 619 Pa. 586, 65 A.3d 361, 380, 381 (2013) ; Bowling v. Office of Open Records , 621 Pa. 133, 75 A.3d 453, 466 (2013).
The enactment of the RTKL in 2008 resulted from the passage of Senate Bill 1 of 2007, a widely-supported bill that underwent several revisions over the course of a year. See S.B. 1, Gen. Assemb. Reg. Sess. 2007-2008. The law ultimately rewrote and completely replaced prior right-to-know legislation to significantly broaden access to public records by removing the burden of production from a requestor and creating the presumption that all records in an agency's possession are public, unless the agency can prove a requested record falls within a specifically enumerated exception. See id .; Levy , 65 A.3d at 381 ("enactment of the RTKL in 2008 was a dramatic expansion of the public's access to government documents"); see also Bowling , 75 A.3d at 457. At each occasion the bill was placed before the Senate for voting, its sponsors and supporters testified regarding the historic and transformative nature of the legislation, as well as its collaborative revision process; preceding its final passage, bill sponsor Senator Pileggi remarked on the law's dramatic expansion designed to make more types of records publicly available, noting its purposeful "transparency gives the public the ability to review government actions, to understand what government does, to see when government performs well, and when government should be held accountable." S.B. 1, PN 1583 - Pa. Legis. J., No. 89, Reg. Sess. of 2007-2008, Bill on Third Consideration and Final Passage, at 1405 (Pa. 2007) (Sen. Pileggi).
Moreover, this Court has consistently recognized that the overriding objective of the RTKL "is to empower citizens by affording them access to information concerning the activities of their government," and we are thus "obliged to liberally construe the [RTKL] to effectuate its salutary purpose of promoting access to official government information in order to prohibit secrets, scrutinize actions of public officials and make officials accountable for their actions." Uniontown Newspapers, Inc. v. Pa. Dep't of Corrections , ––– Pa. ––––, 243 A.3d 19, 33 (2020), quoting , respectively, SWB Yankees LLC v. Wintermantel , 615 Pa. 640, 45 A.3d 1029, 1041 (2012) and Dep't of Pub. Welfare v. Eiseman , 633 Pa. 366, 125 A.3d 19, 29 (2015) ; see Levy , 65 A.3d at 382 (overriding purpose of the RTKL relates to ensuring expanded and expedited transparency in Pennsylvania government). Importantly, " ‘[c]onsistent with the RTKL's goal of promoting government transparency and its remedial nature, the exceptions to disclosure of public records must be narrowly construed.’ " Easton Area Sch. Dist. v. Miller , ––– Pa. ––––, 232 A.3d 716, 724 (2020), quoting Pa. State Police v. Grove , 640 Pa. 1, 161 A.3d 877, 892 (2017).
In sum, the Subsection 708(b)(10) exception contains ambiguous statutory language; given the RTKL's salutary statutory purpose of transparency — for the public to understand what government does and when it should be held accountable — as well as the public presumption clearly embedded by the General Assembly in RTKL Section 305, and our guiding principle of statutory construction that the General Assembly "intends to favor the public interest as against any private interest," I agree that we should decline to afford the protection from disclosure under the predecisional deliberation exception to an agency's communications with subcontractors.
JUSTICE WECHT, dissenting
The Majority concludes that "communications exchanged between a Commonwealth agency and a private consultant" cannot be shielded from disclosure under the Right-to-Know Law's ("RTKL")1 predecisional deliberations exception. Maj. Op. at 1114. I disagree. The Commonwealth Court struck the proper balance between an agency's confidential pursuit of expert advice in furtherance of its governmental functions and the public's interest in government transparency. Because the frank exchange of ideas on complex issues is crucial to the smooth operations of government, I do not believe that the RTKL requires an agency to reveal its confidential communications with, or the proprietary work product of, consultants with whom it contracts for professional services under the particular circumstances before us.
Section 708 of the RTKL exempts from disclosure, inter alia , any "record that reflects ... [t]he internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between" the same, and those of "another agency, including ... any research, memos or other documents used in the predecisional deliberations." 65 P.S. § 67.708(b)(10)(i)(A). By its plain terms, the exemption would appear to cover the work product and communications of Econsult Solutions, Inc., and its legal and financial subcontractors under the "other documents used" catch-all. Indeed, these "other documents"—consisting of legal and financial analyses and recommendations—were central to the Department of Community and Economic Development's ("the Department") confidential, predecisional deliberations regarding the City of Chester's recovery pursuant to the Financially Distressed Municipalities Act ("Act 47").2 Although the pertinent provision of the RTKL requires that a record must reflect the "internal" deliberations of an agency in order for the exemption to apply, it does not explicitly exclude from its protections records that were generated by an external actor under contract with the agency or communications between the two, like those at issue here. In fact, the General Assembly expressly contemplated that records possessed by "a party with whom the agency has contracted to perform a government function on behalf of the agency ... shall be considered a public record of the agency" subject to disclosure unless otherwise exempt under the Act. 65 P.S. § 67.506(d).
While the Department urges this Court to adopt a more expansive reading of the exemption, the Chester Water Authority urges a far narrower construction, by which a record cannot be deemed reflective of "internal" deliberations if it was generated—or at any point possessed—by a non-governmental entity. Given the reasonableness of the parties’ dueling textual interpretations, I find the statute's contemplation of exemptions for records reflecting "internal" deliberations to be ambiguous.
To discern the General Assembly's intent, we may benefit by looking to the abundant federal authority interpreting the Freedom of Information Act ("FOIA"), the federal analogue from which the RTKL draws its inspiration. In Department of the Interior v. Klamath Water Users Protective Association , 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), the United States Supreme Court analyzed the reach of FOIA's "Exemption 5," which protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for the exemption, a record must satisfy two conditions: "its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Klamath , 532 U.S. at 8, 121 S.Ct. 1060. Exemption 5, like Subsection 708(b)(10)(i)(A) of the RTKL, codifies the deliberative process privilege, which encompasses "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Nat'l Lab. Relations Bd. v. Sears, Roebuck & Co. , 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).
Although the High Court in Klamath acknowledged that the plain language of Exemption 5 was silent about communications with non-governmental entities, it recognized that several of the federal Courts of Appeals have held that, in some circumstances, documents prepared by individuals outside of the Government might qualify as "intra-agency" for purposes of the exemption. The Court cited Justice Scalia's dissent in Department of Justice v. Julian , 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988), the facts of which are not relevant here. In Julian , Justice Scalia, joined by Justices White and O'Connor, explained that "the most natural meaning of the phrase ‘intra-agency memorandum’ " in Exemption 5 "is a memorandum that is addressed both to and from employees of a single agency—as opposed to an ‘inter-agency memorandum,’ which would be a memorandum between employees of two different agencies." Id. at 18 n.1, 108 S.Ct. 1606 (Scalia, J., dissenting). He cautioned, however, that "[t]he problem with this interpretation is that it excludes many situations where Exemption 5's purpose of protecting the Government's deliberative process is plainly applicable." Id.
"Consequently," Justice Scalia observed, "the Courts of Appeals have uniformly rejected" requests to limit the exemption solely to those records that are generated by, and kept within, a federal agency. Id. (citing Ryan v. Dep't of Justice , 617 F.2d 781, 789-91 (D.C. Cir. 1980) (applying the exemption to information furnished by Senators to the Attorney General concerning judicial nominations); Gov't Land Bank v. Gen. Servs. Admin. , 671 F.2d 663, 665 (1st Cir. 1982) (applying the exemption to reports prepared by outside consultants)). Pertinently, the Julian dissenters considered lower court decisions extending Exemption 5 to outside consultants’ work product to be "supported by a permissible and desirable reading of the statute." Id. Justice Scalia explained:
It is textually possible and much more in accord with the purpose of [Exemption 5], to regard as an intra-agency memorandum one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency—e.g. , in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) that is authorized or required to provide advice to the agency.
Id.
In support of the lower courts’ view "that the exemption extends to communications between Government agencies and outside consultants hired by them," the Klamath Court noted that "the records submitted by outside consultants in such cases played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done." Klamath , 532 U.S. at 10, 121 S.Ct. 1060. Although the Court acknowledged that, as independent contractors, the consultants at issue "were not assumed to be subject to the degree of control that agency employment could have entailed," the Court declined to interpret those decisions "as necessarily assuming that an outside consultant must be devoid of a definite point of view when the agency contracts for its services." Id. Rather, the Court found significant the fact that consultants in typical cases do not represent their own interests or those of any other client when advising an agency. See id. at 11, 121 S. Ct. 1060 ("Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do."); id. at 12, 121 S. Ct. 1060 ("Consultants whose communications have typically been held exempt have not been communicating with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant. In that regard, consultants may be enough like the agency's own personnel to justify calling their communications ‘intra-agency.’ ")).
Because the result in Klamath did not turn on the consultant-employee analogy, the Court simply assumed that consultant reports might qualify as intra-agency records for purposes of the deliberative process exemption. But in leaving it to the lower courts to hash out whether to extend the exemption to non-governmental parties, the Court admonished against "draining" Exemption 5's first condition—i.e. , "that the communication be ‘intra-agency or inter-agency’ "—"of its independent vitality." Id. at 12, 121 S. Ct. 1060, 1065-67. The federal appellate courts largely, though not universally, have continued to extend the deliberative process privilege to the work of outside consultants who contract with governmental agencies. See, e.g. , Gov't Land Bank , 671 F.2d 663 ; Am. Mgmt. Servs., LLC v. Dep't of the Army , 703 F.3d 724 (4th Cir. 2013) ; Nat'l Inst. of Military Justice v. Dep't of Justice , 512 F.3d 677 (D.C. Cir. 2008) ; Hoover v. Dep't of the Interior , 611 F.2d 1132 (5th Cir. 1980) ; Lead Indus. Ass'n, Inc. v. Occupational Safety & Health Admin. , 610 F.2d 70 (2d Cir. 1979). But see Lucaj v. Fed. Bureau of Investigation , 852 F.3d 541 (6th Cir. 2017) (declining to apply Exception 5 to letters and memoranda shared with federal agencies by foreign governments). Only the United States Court of Appeals for the Ninth Circuit explicitly has rejected the so-called "consultant corollary," though that recent decision was vacated by a grant of reargument en banc . See Rojas v. Fed. Aviation Admin. , 927 F.3d 1046, 1058 (9th Cir. 2019), rehearing en banc granted , 948 F.3d 952 (9th Cir. 2020).
I find Justice Scalia's dissent in Julian , and the consistent rationales relied upon by the federal courts, to be persuasive. Accordingly, I would apply that reasoning to the circumstances here to deny the compelled disclosure of the responsive records held by the Department, insofar as those documents reflect predecisional deliberations between the Department and the consultants with whom they have contracted for professional services.
In its initial prospectus, which was incorporated into a professional services contract with the Department, Econsult specifically identified—and appended a budget allotting payment for the services of—a financial consulting firm (Fairmount Capital Advisors, Inc.) and legal counsel (McNees, Wallace & Nurick, LLC) that would act collectively with Econsult as the Act 47 Coordinator for the City of Chester. In assenting to the contract, the Department tasked the team with using its considerable expertise to create a recovery plan for the City involving a blend of both financial and legal analysis. Although the team was to operate independently, it also was obliged to provide the Department with progress reports and recommendations as part of the agency's confidential deliberations over the City's path toward long-term solvency. Moreover, according to the Department's Open Records Officer, Econsult's final report "was created solely for" the Department, and the Department did not "share the [Econsult] Report ... with outside parties." Agency Affirmation of Jennifer Fogarty, 2/14/2018, at 2 ¶ 6.
The consultants also agreed not to enter into any additional contracts without the Department's approval. For all intents and purposes, then, Econsult, Fairmount, and McNees were exclusive agents of the Department throughout the deliberative stages of the Act 47 recovery process. Assuming that the responsive records appropriately reflected the Department's "predecisional deliberations," there is little doubt that they would be exempt from disclosure under Subsection 708(b)(10)(i)(A) but for the Act 47 Coordinator's designation as an agency "consultant."
The Majority acknowledges the necessity of weighing the costs and benefits of "promot[ing] the free exchange of deliberative communications against the [RTKL's] overarching policy of openness." Maj. Op. at 1113. But in rejecting the Department's plea for a narrowly-tailored "consultant corollary," the Majority short shrives the consequences of full disclosure. As reflected in the present dispute, the need for such an exemption may be especially acute in the Act 47 context, where the Department must make difficult choices from a range of likely unpopular, even contentious, options to facilitate the recovery of financially distressed municipalities. To force the release of expert advice relied upon by the Department in making such fraught decisions undoubtedly would have a chilling effect on its earnest efforts to satisfy its statutory mandate moving forward. And to do so while deliberations over aspects of the recovery process remain ongoing would be doubly pernicious given the risks that such disclosures might pose to the strategies being contemplated.
More broadly, consultants might self-censor or decline to render their services at all in light of reasonable concerns that their contracted-for confidentiality during the deliberative process no longer can be guaranteed by an agency under the RTKL in light of today's decision. This Court should not overlook the deleterious effects of deterring agency professionals from seeking the unvarnished advice of non-governmental experts. The cost to taxpayers—particularly those denizens who reside in financially distressed municipalities—from the loss of this expertise might not be trivial in the long run. On balance, I do not believe that the General Assembly intended this result. For these reasons, I respectfully dissent.
Chief Justice Baer joins this dissenting opinion.