Opinion
No. 595 C.D. 2013
01-28-2014
James D. Schneller, Appellant v. City of Philadelphia
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
James D. Schneller (Requester), pro se, appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) affirming the final determination of the Office of Open Records (OOR) denying his request for documents from the City of Philadelphia Law Department (Law Department) pursuant to the Right-to-Know Law (RTKL). For the reasons that follow, we affirm the trial court.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 - 67.3104.
On April 22, 2011, Requester submitted a RTKL request to the City of Philadelphia Law Department Open Records Officer seeking information related to a Planning Commission application approval and an amendment to the Zoning Code. In his request, Requester acknowledged that he had previously submitted similar RTKL requests, but was now seeking to broaden those prior requests. Specifically, he stated:
I recently filed on March 3, 2011, a right to know request requesting:
-Copies, and to inspect, all documents and electronic files that are records of any kind in your office regarding a) the application of HSP Gaming for Planning Commission approval which was granted by the Planning Commission of the City of Philadelphia on July 20, 2009, and (b) the decisions signed by the Mayor of Philadelphia on June 3, 2009, June 17, 2009, and July 22, 2009, which passed bill[] Nos. 090294 and 090295, and bill No. 90170, which amend the Zoning Code regarding Commercial Entertainment Districts and ... create a Delaware River Riverfront Overlay District...
Said March 3, 2011 request followed a determination by the Office of Open Records which found that your answer to the first, initial request in this matter, had precluded appeal to that office.
I repeat this request again because I did not appeal your refusal to answer my March 3, 2011 request, due to personal and professional hardship and workload. I apologize for the redundancy and in the interests of efficiency I note that I seek first and foremost to inspect the document that you claimed in said initial request was the only public record in your files, namely, the letter to HSP Gaming informing them of approval by the Philadelphia Planning Commission of their application issued around July 20, 2009[.]
I now include a broadening of the prior two requests and that is:
-Yours and any other office's records of mailing said letter to HSP Gaming, and any and all proofs of postal service, or other carrier, mailing or delivery of items that pertain to said letter, and to letters mailed 7 days prior to and 7 days after said item, including any and all documents showing or tending to show or conceivably showing the manner of mailing, date of mailing, and/or specific details of the date and/or manner of mailing letters to outsiders notifying them of decisions and/or determinations of the City of Philadelphia and [its] agencies.(Supplemental Reproduced Record (S.R.R.) at 8a).
As stated in the prior request served on March 3, 2010:
-This request includes but is not limited to all memoranda and internal correspondence, and portions thereof, that are not confidential, and/or that may be public record upon [redaction] of pages or parts of them; all predecisional material that became public records, or public records in part, after the City of Philadelphia's decisions were reached in this matter; all public records including postal service records like certified mail and return receipt requested receipts, and an accounting of disclosure stating all other parties and documents regarding other Right to Know requests to you in this regard. This request includes a request to inspect all public records herein requested, in person.
and I add now:
-This request includes but is not limited to all of the requested public record that is electronically recorded or otherwise kept on electronic media, including scanned documents and photographs.
Requester submitted his initial RTKL request in December 2010, which the Law Department partially denied, only granting access to a letter from the Planning Commission dated July 20, 2009. Requester's appeal to the OOR of that denial was docketed at AP 2011-0119 and was ultimately dismissed by order dated February 25, 2011, for failure to attach required exhibits. Requester subsequently appealed that dismissal to this Court, and the Law Department filed a motion to dismiss. This Court granted the Law Department's motion to dismiss the appeal at AP 2011-0119 as untimely. (See S.R.R. at 135a-137a).
After invoking a 30-day extension to respond pursuant Section 902 of the RTKL, 65 P.S. §67.902, the Law Department denied the request as duplicative and unreasonably burdensome pursuant to Section 506(a)(1) of the RTKL, 65 P.S. §67.506(a)(1). With respect to the portion of the request that was not duplicative of previous requests, relating to proof of mailing of certain documents, the Law Department stated that it was not able to identify any such responsive records within its possession. To the extent that any other portion of the request was not duplicative of prior requests, the Law Department denied disclosure of any other responsive documents based on attorney-client privilege and the attorney-work product doctrine.
That section provides that "[a]n agency may deny a requester access to a record if the requester has made repeated requests for that same record and the repeated requests have placed an unreasonable burden on the agency."
Requester appealed to the OOR asserting that the request was not disruptive and that responsive records exist. In response, the Law Department submitted an "Attestation of Non-Existence of Records and Applicable Privilege" (Affidavit) signed by Deputy City Solicitor Joshua Stein (Stein). In its final determination, the OOR found that while the Law Department failed to provide sufficient evidence demonstrating that the request was unreasonably burdensome, the Law Department did prove through its Affidavit that records related to proof of mailing do not exist and that any responsive records are privileged. Accordingly, the OOR denied Requester's appeal. Requester then appealed to this Court, which transferred the appeal to the trial court. After oral argument at which Requester did not appear, the trial court entered an order denying Requester's appeal and affirming the OOR's determination. This appeal followed.
Our review of a trial court's decision in an RTKL case is limited to determining whether findings of fact are supported by competent evidence or whether the trial court committed an error of law or abuse of discretion in reaching its decision. Allegheny County Dept. of Administrative Services v. Parsons, 61 A.3d 336, 342 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 72 A.3d 604 (2013).
On appeal, Requester argues that the trial court erred in affirming the OOR's determination that the Law Department offered sufficient evidence to prove the non-existence of the requested "proof of mailing" records or that any existing responsive records were privileged because the Law Department's Affidavit is overly broad and vague and does not establish that the requested records either do not exist or are privileged. Under the RTKL, all records in the possession of an agency are presumed to be "public" unless they are: (1) exempt under Section 708 of the RTKL; (2) protected by privilege; or (3) exempt "under any other Federal or State law or regulation or judicial order or decree." Section 305 of the RTKL, 65 P.S. §67.305; Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). Where the agency is asserting a privilege, the burden of proof is on the agency to demonstrate that the privilege applies. Heavens v. Department of Environmental Protection, 65 A.3d 1069, 1074 (Pa. Cmwlth. 2013). Generally, an affidavit may serve as sufficient evidence of the non-existence of records. See Hodges v. Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011) (affidavit of agency's Open Records Officer was dispositive evidence that requested records did not exist); Moore v. Office of Open Records, 992 A.2d 907, 908-909 (Pa. Cmwlth. 2010) (agency's submission of sworn and unsworn affidavits that it was not in possession of requested records was sufficient to satisfy its burden of proving non-existence of record). Similarly, an affidavit is sufficient to satisfy an agency's burden of proof that a privilege applies. See Heavens, 65 A.3d at 1076-77 (holding that agency met burden of proving that attorney-client and attorney-work product privileges applied through submission of affidavits).
In conjunction with this argument, Requester asserts that the trial court committed reversible error by dismissing his case based upon his failure to appear at oral argument at the scheduled time. However, the record clearly shows that his appeal was not dismissed because he failed to appear at the date and time when the matter was to be heard. The trial court's opinion specifically states that its denial was "[b]ased on oral argument presented by the City Law Department, the complete Certified Record, and Briefs submitted by [Requester] and the City Law Department." (Trial Court's May 31, 2013 Opinion at 5; S.R.R. at 169a) (emphasis added).
Section 102 of the RTKL defines "privilege" as "the attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth." 65 P.S. §67.102.
Regarding the non-existence of proof of mailings, the Affidavit submitted by the Law Department stated that Stein personally spoke to the various attorneys within the Law Department who would have possession or knowledge of the "proof of mailing" records sought by Requester, and that these attorneys searched the agency's files to the best of their ability but were unable to locate any such records. Because an affidavit alone is sufficient to satisfy an agency's burden of proving the non-existence of a record, we find no error in the trial court's determination that the Law Department proved that the requested "proof of mailing" records do not exist.
We also agree with the trial court's determination that the Law Department met its burden of proving that any responsive documents were protected by attorney-client and attorney-work product privilege. Utilizing the test for the application of the attorney-client privilege set forth in Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. 2007), Stein stated that all four prongs of that test are satisfied here, attesting that:
Under that case, in order for the attorney-client privilege to apply, an agency must affirmatively demonstrate that:
1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
1) The holder of the privilege is the City of Philadelphia Planning Commission, an agency of the City of Philadelphia, which is a client of the City's Law Department.
2) The persons to whom the communications were sent, or who sent the communications were at all relevant times attorneys of the Law Department, and in good standing with the Pennsylvania Bar. The lead attorney on the review was James P. Leonard, Esq., Chief Deputy City Solicitor, and those attorneys working with him.(S.R.R. at 54a-55a). With respect to those responsive documents which are not "communications" protected by attorney-client privilege, the Law Department's Affidavit states that those documents are protected by the attorney-work product doctrine. As Stein attested:
3) The contents of these records related directly to the legal review of the application by HSP Gaming for Planning Commission approval, including specific legal questions submitted by the Planning Commission, requests for interpretation of law, and memorandum related to issues of law.
4) The Planning Commission has claimed this privilege, and has not waived it. If necessary, a relevant official of the Planning Commission is prepared to submit a separate attestation to this effect.
I have reviewed the relevant documents and/or worked directly with the attorneys who created the documents, or directed the documents to be created by attorneys working for the Law Department, and the records are mental impressions, conclusions or opinions - consisting of notes, drafts and similar documents, regarding the duties of the Planning Commission in its review of the application of
HSP Gaming, the requirements under the law, and risks and liabilities associated.(S.R.R. at 55a). Despite Requester's argument to the contrary, we find that the Affidavit is sufficiently specific and comprehensive to demonstrate that any responsive documents within the possession of the Law Department are privileged and, therefore, not subject to disclosure.
"The work-product doctrine offers broad protection to the mental impressions, theories, notes, strategies, research and the like created by an attorney in the course of his or her professional duties, particularly in anticipation or prevention of litigation." Heavens, 65 A.3d at 1077.
Requester also argues that the Affidavit is insufficient because it does not address the portion of his RTKL request seeking records relating to bills signed by the Mayor regarding zoning changes. Because those bills originated in the Planning Department and the Affidavit states that all discussions relating to those bills are privileged, this argument is without merit.
Accordingly, the trial court's order is affirmed.
Requester also argues that the trial court erred in dismissing his initial appeal at AP 2011-0119, and that the Law Department improperly omitted documents from the present matter that were related to that initial appeal. Because we only have jurisdiction to review those claims related to the instant appeal, we will not address those arguments. --------
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 28th day of January, 2014, the order of the Court of Common Pleas of Philadelphia County, dated March 7, 2013, at April Term 2012, No. 00171, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Nationwide Mut. Ins. Co, 924 A.2d at 1264.