Received 07/21/2014 Commonwealth Court of Pennsylvania Court Harrisburg District Filed 07/21/2014 Commonwealth Court of Pennsylvania 1138 CD 2014

COMMONWEALTH COURT OF PENNSYLVANIA DOCKETING STATEMENT PETITION FOR REVIEW Counsel for Petitioner(s) must complete this form and file it with the Chief Clerk of the Commonwealth Court within 10 days of the date of the Notice of Docketing. Failure to timely file a docketing statement, with required attachments and certificate of service, may result in dismissal of the petition for review. Attach additional sheets if needed. Case Caption:

Pennsylvania Department of Education v. Ryan Bagwell

Commonwealth Court Docket No.: 1138 CD 2014 Required Attachments: (1) Attach a copy of all decisions and opinions, if any, and all pertinent orders in this case (including, for example, the decision of the Workers Compensation Judge, or similar decision). (2) Attach a Statement of Issues of no more than two pages in length, containing a summary sufficient to explain the case, (See Order of September 15, 1999, 29 Pa. Bull. 5064, 210 Pa. Code §79.501) and indicating the relief requested. (3) Attach a certificate of service indicating service of the docketing statement, statement of issues, and all attachments on all other parties. A.

Appealability of Order (1) Is the order appealed a final order? X (2)

Yes

No

If not a final order, pursuant to what Rule of Appellate Procedure is this order being appealed, e.g., Pa. R.A.P. 311, 313, 341(c)? Please explain:

B.

Are there any related cases, including cross-appeals, pending in this court or any other federal or state court or agency? X Yes No If yes, please lest below the court or agency, caption and docket number(s): See attached

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C.

Have there been any previous efforts to settle this matter?

Yes

X

No

If yes, Please explain:

D.

Are you aware of any conflict of interest that may exist with respect to any party, lawyer, or issue in this case that may suggest the need for recusal by any judge of this court? Yes X No If yes, please explain:

Signature:

/s/ Roberto T. Datorre

Name (Printed): Address:

See attached

Date

Roberto T. Datorre

333 Market Street, 9th Floor, Harrisburg, PA 17126-0333

Telephone No.: 717 787-5500

Fax No.:

Counsel for (Name of Party):

Pennsylvania Department of Education

E-mail: [email protected]

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717 738-0347

July 21, 2014

Pennsylvania Department of Education v. Ryan Bagwell, 1138 C.D. 2014 Docketing Statement Additional Responses B.

The Pennsylvania Department of Education and Ryan Bagwell are currently parties in the following appeals pending before the Commonwealth Court of the Office of Open Records, also relating to requests filed with PDE by Mr. Bagwell under the Right-toKnow Law, 65 P.S. § 67.101 et seq.: Commonwealth Court of Pennsylvania Bagwell v. Pennsylvania Department of Education (The Pennsylvania State University, Intervenor), 79 CD 2014 Office of Open Records Bagwell v. Pennsylvania Department of Education (The Pennsylvania State University, Third-Party Participant), AP 2014-0935

D.

In his Docketing Statement filed in Bagwell v. Pennsylvania Department of Education (The Pennsylvania State University, Intervenor), 79 CD 2014, Mr. Bagwell identified that Judge Renee Cohn-Jubilerer’s husband, Senator Robert Jubilerer, was a candidate for the PSU Board of Trustees. Since that time, Senator Jubilerer was elected to the PSU Board of Trustees. PDE does not perceive any conflict of interest for Judge Cohn-Jubilerer resulting from Senator Jubilerer’s candidacy or election for membership on the PSU Board of Trustees.

FINAL DETERMINATION IN THE MATTER OF

: : RYAN BAGWELL, : Complainant : : v. : : PENNSYLVANIA DEPARTMENT OF : EDUCATION, : Respondent :

Docket No.: AP 2014-0551

INTRODUCTION Ryan Bagwell (the “Requester”) submitted a request (the “Request”) to the Pennsylvania Department of Education (“Department”) pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., (“RTKL”), seeking copies of e-mails between three named individuals on a certain date. The Department denied the Request, arguing the records are protected by the attorney-client privilege, the attorney-work product doctrine and reflect the Department’s internal, predecisional deliberations. The Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final Determination, the appeal is granted and the Department is required to take further action as directed herein. FACTUAL BACKGROUND

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On March 31, 2014, the Request was filed, seeking “copies of all e-mails sent between former secretary of education Ron Tomalis, James Schultz and Stephen Aichele on November 8, 2011.” On April 7, 2014, the Department identified three (3) e-mails as records responsive to the Request, and denied access under the attorney-client privilege, the attorney-work product doctrine, the deliberative process privilege and as records of the internal, predecisional deliberations of the Department. See 65 P.S. § 67.708(b)(10). On April 7, 2014, the Requester appealed to the OOR, challenging the denial and stating that the records are not protected by the asserted privileges, nor Section 708(b)(10) of the RTKL because the information was disclosed to third-party individuals at Pennsylvania State University (“PSU”) to hire a firm to conduct an investigation. The OOR invited both parties to supplement the record and directed the Department to notify any third parties of their ability to participate in the appeal pursuant to 65 P.S. § 67.1101(c). On April 17, 2014, the Department submitted its position statement arguing that the former Department Secretary, the Honorable Ronald Tomalis, was acting on behalf of the Department, as an ex officio member of PSU’s Board, in his communications with the Office of General Counsel (“OGC”), First Executive Deputy General Counsel Schultz and General Counsel Aichele, to provide advice and recommendations to assist him in participating in future-decision making by PSU’s Board relating to hiring attorneys. The Department further argues that the attorney-client privilege was not waived by using the advice provided by Attorney Schultz and Attorney Aichele.

In the Department’s

submission it requested, [t]o the extent that [the Requester] makes factual allegations in additional submissions to the OOR to support his claim of waiver by third-party

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disclosure, the requirements of due process dictate that [the Department] be given an opportunity to respond to those facts.” [Additionally,] “to the extent that any disputed issues of fact are identified by the OOR or raised as a result of this or future submissions by the parties, [the Department] respectfully request (sic) the opportunity to submit an affidavit or verification of or any of the facts herein or any additional facts necessary for disposition of this matter. Subsequently, on April 17, 2014, the Requester submitted his position statement. The Requester contends that PSU decided to form a task force to manage an internal investigation of PSU’s handling of the allegations of child sexual abuse made against former PSU football coach Jerry Sandusky.

The Board met on November 8, 2011

establishing the Special Investigations Task Force.

Prior to the November 8, 2014

meeting Mr. Tomalis sought the advice from OGC attorneys for suggestions of suitable investigative firms. The Requester argues that the withheld e-mails were forwarded by Mr. Tomalis to PSU Board of Trustees Chairman John Surma, and were later passed to PSU Trustee Ken Frazier, thereby waiving the attorney-client privilege. The Requester, asserting that waiver has occurred, submitted an e-mail dated November 11, 2011 from Mr. Tomalis to Mr. Frazier, which states, “RE Freeh and Chertoff—I noted the same thing about Freeh when I had reviewed the names prior to forwarding them to John earlier in the week, and agree that it gives the edge to Chertoff.” On April 18, 2014, the OOR ordered the Department to provide the withheld records for in camera inspection. On April 25, 2014, the Department provided the three (3) e-mails to the OOR for in camera inspection. Additionally, the Requester agreed to extend the date for the OOR’s issuance of the Final Determination until to June 9, 2014 pursuant to 65 P.S. § 67.1101(b)(1).

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As the Department requested an opportunity to address any allegations of waiver, on April 28, 2014 the OOR granted the Department the opportunity to address the November 11, 2011 e-mail and the issue of waiver, including an opportunity to submit an affidavit to support any additional factual allegations. On May 1, 2014, the Department responded stating that it “declines to provide the information as requested.”

The

Department relied on the affidavit already in the record as sufficient to meet its burden. LEGAL ANALYSIS “The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important opengovernment law is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the request.” 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing is discretionary and nonappealable. Id. The law also states that an appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id. Here, the Requester requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter.

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The Department is a Commonwealth agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.301. Records in possession of a Commonwealth agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a). Similarly, the burden of proof in claiming a privilege from disclosure is on the party asserting that privilege. Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011); Dep’t of Transp. v. Drack, 42 A.3d 355, 364 (Pa. Commw. Ct. 2012) (“[T]he RTKL places an evidentiary burden upon agencies seeking to deny access to records even when a privilege is involved”); In re: Subpoena No. 22, 709 A.2d 385 (Pa. Super. Ct. 1998). Preponderance of the evidence has been defined as “such proof as leads the fact-finder … to find that the existence of a contested fact is more probable than its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). 1.

The Department has failed to meet its burden of proof that the attorney-client privilege and attorney-work product doctrine apply to the withheld records

The Department claims that the three (3) withheld e-mails are protected by the attorney-client privilege and the attorney-work product doctrine. The RTKL excludes

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records subject to a privilege from the definition of “public records.” See 65 P.S. § 67.102.

The RTKL defines “privilege” as “[t]he 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.” Id. The OOR gives paramount respect to both the attorney-client privilege and the attorneywork product doctrine and recognizes the importance of guarding both. The in camera inspection index indicates that the first e-mail withheld from disclosure was sent on November 8, 2011 from First Executive Deputy General Counsel James Schultz to General Counsel Stephen Aichele, with a subject line of “Attorney Recommendations.” The second e-mail withheld from disclosure, as indicated on the inspection index, was sent on the same date from General Counsel Aichele to the then Secretary of the Department, the Honorable Ronald Tomalis with the same subject line. The third e-mail was sent on the same date from Secretary Tomalis to General Counsel Aichele and copying First Executive Deputy General Counsel Schultz with the same subject line. a. Attorney-Client Privilege In order for the attorney-client privilege to apply, an agency must 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; and 4) the privilege has been claimed and is not waived by

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the client. See Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. Ct. 2007).

An agency may not rely on a bald assertion that the attorney-client privilege

applies; instead, the agency must prove all four elements. See Clement v. Berks County, OOR Dkt. AP 2011-0110, 2011 PA O.O.R.D. LEXIS 139 (“Simply invoking the phrase ‘attorney-client privilege’ or ‘legal advice’ does not excuse the agency from the burden it must meet to withhold records”). The Department submitted a statement made under the penalty of perjury from Mr. Tomalis attesting that: 1. As Secretary of the [Department] on November 8, 2011, I was a client of the Office of General Counsel; 2. I communicated with Stephen Aichele and/or James Schultz, attorneys in the Office of General Counsel, on November 8, 2011, as represented in emails of that date described in [the Department’s] response to your Right-to-Know Law (RTKL) request; 3. The emails of November 8, 2011 that are in my possession and identified in [the Department’s] response to your RTKL request include only Mr. Aichele, Mr. Schultz and myself, and contain the mental impressions and/or opinions of Mr. Aichele and Mr. Schultz pertaining to an issue I presented to them for the purpose of seeking legal services or assistance in a legal matter, and was not for the purpose of committing a crime or tort; and, 4. I claim and have not waived the attorney-client privilege regarding the emails of November 8, 2011 identified in [the Department’s] response to your RTKL request that are in my possession. The Requester argues that the attorney-client privilege does not apply to the emails since PSU is not connected with the official duties of the Office of General Counsel, therefore the advice of these attorneys to Mr. Tomalis cannot be considered legal advice.

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As the Commonwealth Court recently held in Bagwell v. Pennsylvania Dep’t of Education, records sent to the Secretary of Education, as a result of his statutory appointment to PSU’s Board of Trustees, are records of the Department under the RTKL. 76 A.3d. 81, 88 (Pa. Commw. Ct. 2013). The Court also stated that, “[t]he Secretary acts as a surrogate for the Department.

When performing statutorily imposed duties, the

Secretary must act at all times as the Secretary of the Department, and thus is acting in a governmental capacity.” Id. at 88. In the present matter, the Office of General Counsel provides legal representation to the Governor and various Commonwealth agencies, including the Department. Therefore, Mr. Tomalis, as Secretary of the Department, is the “client” for purposes of the attorney-client privilege. The OOR has reviewed the arguments and evidence presented by all parties and conducted an in camera review of the records alleged to be privileged.1

Here, Mr.

Tomalis’ affidavit merely states that the communication is “for the purpose of seeking legal services or assistance in a legal matter.” The Department’s affidavit is conclusory with respect to application of the attorney-client privilege as a basis for withholding that record.

The Department does not provide any factual support in its affidavit that the

content of the communication within the withheld records is for the purpose of seeking legal services or assistance in a legal matter, other than merely parroting the language of the attorney-client privilege in its affidavit. The OOR has held that an agency cannot rely on conclusory affidavits to meet its burden of proof. See Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw. Ct. 2013) (“[A] generic determination or 1

Section IV(D)(11) of the OOR Interim Guidelines provides, among other things, that “[r]eferences to specific records submitted for in camera inspection, or the contents of such records, in the final determination will be ... by reference to generic descriptions or characterizations as set forth in the in camera inspection index.” As such, the OOR's written analysis is constrained to generic descriptions of the withheld records.

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conclusory statements are not sufficient to justify the exemption of public records”). The mere parroting of language of the legal basis upon which a record is withheld from public access is not sufficient evidence for an agency to meet its burden of proof under the RTKL.

Id. at 1103 (“[A] generic determination or conclusory statements are not

sufficient to justify the exemption of public records”). The Department contends that following the release of the grand jury presentment and arrest of Jerry Sandusky, the PSU Board recognized the need of hiring legal and other professionals.

The Department’s unsworn statement contends that “[t]he

information in the records reflect … consultation by Tomalis with his OGC attorneys to assist him with participating in future decision-making by PSU Board relating to the hiring of attorneys.” The Department points out that the Requester concedes that “the Records reflect information ‘obtained for the express purpose of assisting individuals at [PSU] with hiring a firm to conduct an investigation…”

The Requester provided the

November 11, 2011 e-mail as evidence to argue that Mr. Tomalis waived the protection of the attorney-client privilege. The Department’s unsworn statement asserts that “Tomalis’ statement in the November 11, 2011 e-mail reveals only that Tomalis forwarded names, including that of Louis Freeh, to Surma … nothing in Tomalis’ statement reveals that Tomalis forwarded the Records or that he informed Surma or any other PSU Board member that his Office of General Counsel (OGC) attorneys provided him with recommendations of attorneys that PSU could hire.”

While an affidavit or

statement made under the penalty of perjury is competent evidence to sustain an agency’s burden of proof, see Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw.

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Ct. 2010), unsworn statements may not be relied upon as competent evidence to withhold records under the RTKL. See Housing Authority of the City of Pittsburgh v. Van Osdol, 40 A.3d. 209, 2012 Pa. Commw. Ct. LEXIS 87 (2012) (statements of counsel are not competent evidence); City of Philadelphia v. Juzang, July Term, 2010 – 2048 (Philadelphia C.P. June 28, 2011) (factual statements in a legal memorandum are not evidence). In an effort to further develop the record, the OOR provided the Department with the opportunity, as the Department requested, to provide additional information and an affidavit discussing the issue of waiver. The Department expressly declined to submit additional information or affidavits on this issue. Accordingly, the Department’s affidavit fails to provide a sufficient factual basis for the OOR to conclude that the attorney-client privilege was not waived.2 As a result, the Department has not met its burden of proving that the three (3) e-mails are protected from public access under the attorney-client privilege. b. Attorney-Work Product Doctrine The Department also argues that the withheld e-mails are

protected by the

attorney-work product doctrine. The attorney-work product doctrine prohibits disclosure “of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” Pa.R.C.P. 4003.3. The Pennsylvania Supreme Court recently explained that the attorney-work product doctrine “manifests a particular concern with matters arising in anticipation of litigation.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 n.16 (Pa. 2011) (citing Nat’l R.R. Passenger Corp. v. Fowler, 788 A.2d 1053, 1065 (Pa. Commw. Ct. 2001) (stating that “[t]he ‘work 2

While in camera review is valuable tool for the development of the record before the OOR, agencies cannot rely entirely on in camera review to meet their burden of proof in all cases.

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product rule’ is closely related to the attorney-client privilege but is broader because it protects any material, regardless of whether it is confidential, prepared by the attorney in anticipation of litigation”)); see also Heavens v. Pa. Department of Environmental Protection, 65 A.3d 1069, 1077 (Pa. Commw. Ct. 2013) (“[U]nder the RTKL the workproduct doctrine protects a record from the presumption that the record is accessible by the public if an agency sets forth facts demonstrating that the privilege has been properly invoked”). In his affidavit, Mr. Tomalis attests, “[t]he emails of November 8, 2011 … contain the mental impressions and/or opinions of Mr. Aichele and Mr. Schultz pertaining to an issue I presented to them for the purpose of seeking legal services or assistance in a legal matter …” The Department’s submission discusses the attorneywork product doctrine by reiterating the rule. The Department states that: [i]n an affidavit, provided to [the Requester] with [the Department’s] Response, Tomalis set forth … facts to assert the attorney work-product doctrine. [The Department] met its burden to assert the privileges and set forth the necessary facts to show the privileges have been invoked.” See Heavens, 65 A.2d at 1076-77 (holding that an agency met its burden to establish the attorney-client and attorney work-product privileges through the submission of affidavits). In Schneller, the Commonwealth Court also determined that the agency’s affidavit was sufficient to meet its burden that certain records were also protected by the attorney-work product doctrine, attesting: 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.

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Schneller v. City Pittsburgh, No. 595 C.D. 2013, 2014 Pa. Commw. Unpub. LEXIS 60 (Pa. Commw. Ct. 2014). Here, Mr. Tomalis’ affidavit merely states that the records contain “the mental impressions and/or opinions of Mr. Aichele and Mr. Schultz pertaining to an issue I presented to them for the purpose of seeking legal services or assistance in a legal matter.”

The Department’s affidavit is conclusory with respect to application of the

attorney-work product doctrine as a basis for withholding that record. The OOR has held that an agency cannot rely on conclusory affidavits to meet its burden of proof. Unlike the affidavits in Schneller, which specifically identified the legal issues under consideration, the Department’s affidavit includes generic statements regarding the application of the attorney-work product doctrine and fails to provide a sufficient factual basis for the OOR to conclude that the attorney-work product doctrine applies. As a result, the Department has not met its burden of proving that the three (3) e-mails are protected by the attorney-work product doctrine. 2.

The Department did not meet its burden of establishing that the records are protected as internal, predecisional deliberations

The Department also denied the Request on the basis that the e-mails are exempt from disclosure as records of internal, predecisional deliberations. 65 P.S. § 67.708(b)(10)(i)(A). Section 708(b)(10) of the RTKL exempts from public disclosure a record that reflects: 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, including predecisional deliberations relating to a budget

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recommendation, ...or course of action or any research, memos or other documents used in the predecisional deliberations. 65 P.S. § 67.708(b)(10)(i)(A). To withhold a record under Section 708(b)(10)(i)(A), an agency must show: (1) the deliberations reflected are internal to the agency, including representatives, (2) the deliberations reflected are predecisional, i.e., before a decision on an action; and (3) the contents are deliberative in character, i.e., pertaining to a proposed action. See Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011); Martin v. Warren City Sch. Dist., OOR Dkt. AP 2010-0251, 2010 PA O.O.R.D. LEXIS 285; PHFA v. Sansoni, OOR Dkt. AP 2010-0405, 2010 PA O.O.R.D. LEXIS 375; Kyle v. DCED, OOR Dkt. AP 2009-0801, 2009 PA O.O.R.D. LEXIS 310. Under the RTKL, an affidavit may serve as sufficient evidentiary support. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010).

Here, the

Department merely provided an unsworn statement that the records reflect internal, predecisional deliberations of the Department. Unsworn statements may not be relied upon as competent evidence to withhold records under the RTKL. See Housing Authority of the City of Pittsburgh, supra; City of Philadelphia, supra. Based on the materials provided, the Department has not met its burden of proof under the RTKL. See 65 P.S. § 67.708(a). CONCLUSION For the foregoing reasons, Requester’s appeal is granted and the Department is required to provide the withheld e-mails within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Commonwealth Court. 65 P.S. § 67.1301(a).

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All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond as per Section 1303 of the RTKL.

This Final

Determination shall be placed on the OOR website at: http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: June 9, 2014

APPEALS OFFICER JILL S. WOLFE, ESQ.

Sent to:

Ryan Bagwell (via e-mail only); Roberto Datorre, Esq. (via e-mail only); Larry McComsey (via e-mail only)

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STATEMENT OF ISSUES The Pennsylvania Department of Education (PDE) received a request for records under the Pennsylvania Right-to-Know Law (RTKL), 65 P.S. § 67.101 et seq., from Ryan Bagwell (Bagwell) seeking: “[C]opies [of] all e-mails sent between former [S]ecretary of [E]ducation Ron Tomalis, James Schultz and Stephen Aichele on November 8, 2011.” On November 8, 2011, Ron Tomalis served as PDE’s Secretary of Education and a member of the Governor’s cabinet, James Schultz served as First Executive Deputy General Counsel for the Governor’s Office of General Counsel (OGC), and Steven Aichele served as the Governor’s General Counsel. PDE issued a final response to Bagwell’s request denying access to the three e-mails responsive to the request (Records) for the reasons that the Records are exempt from access under the RTKL because they are protected by the attorney-client communications and attorney work-product privileges and due to the fact that they reflect internal, predecisional deliberations of an agency, it members, employees or officials or between agencies, their members, employees or officials. PDE’s denial was accompanied by a properly prepared and executed affidavit from Tomalis in which he avers the specific facts necessary to assert the cited privileges. Bagwell appealed PDE’s denial to the OOR. PDE and Bagwell filed additional information with the OOR in the form of written arguments in support of their respective positions on appeal. In response to the OOR’s order for in camera review, PDE submitted the Records to the OOR along with additional information in support of the cited privileges and exemptions. PDE met its burden to claim the cited privileges and exemption, and the burden of rebutting the privileges and exemptions should have shifted to Bagwell. Instead, the OOR requested additional information from PDE to specifically address the question of waiver of the privileges, to which PDE responded. Also, in response to a

separate request by Bagwell for a hearing, PDE filed additional information in support of the cited privileges and exemptions, including a second affidavit from Tomalis to support the PDE’s assertion that there is no evidence of waiver. The OOR did not hold a hearing to take additional evidence or resolve any purported disputed issues of material fact. In its final determination, the OOR acknowledged that there was no dispute about the nature of the information in the Records – the Records contain information received by Tomalis from legal counsel in OGC for the express purpose of providing legal advice and assistance to Tomalis, as a member of Pennsylvania State University’s (PSU) Board of Trustees, with decisions relating to PSU’s hiring of legal counsel to conduct an investigation of the allegations against Gerald Sandusky.

The OOR also recognized PDE’s affidavit, which includes four

separate and detailed averments of fact to assert the attorney-client and attorney work-product privileges. Despite the detailed affidavit and other competent, substantial evidence and sound legal arguments submitted by PDE, the OOR erroneously found that PDE’s affidavit was conclusory and that PDE: had not established that the attorney-client privilege had not been waived; had not provided sufficient facts to establish the legal issue involved to assert the attorney work-product privilege; and, had not established that the Records reflect internal, predecisional deliberations. PDE respectfully requests that this Honorable Court find that the Records are protected from disclosure by the attorney-client privilege, the attorney work-product privilege, and the RTKL’s exemption for internal, predecisional deliberations.

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