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

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 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.)

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 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.

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.

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