[J-75A-2020 and J-75B-2020] [MO: Saylor, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CHESTER WATER AUTHORITY, : No. 44 EAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: 4/25/2019 at No. 801 CD 2018
v. : affirming the Order of the Office of
: Open Records entered on 5/14/2018
: at No. AP 2018-0194.
PENNSYLVANIA DEPARTMENT OF :
COMMUNITY AND ECONOMIC : ARGUED: September 16, 2020
DEVELOPMENT, :
:
Appellee :
CHESTER WATER AUTHORITY, : No. 45 EAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: 4/25/2019 at No. 1090 CD 2018
v. : affirming the Order entered on
: 7/11/2018 of the Office of Open
: Records at No. AP 2018-0247.
PENNSYLVANIA DEPARTMENT OF :
COMMUNITY AND ECONOMIC : ARGUED: September 16, 2020
DEVELOPMENT, :
:
Appellee :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: April 29, 2021
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.1 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.
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 2-3. 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 4, 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 10-11. 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 2. In my view, a fair reading of the fuller provision reasonably raises
the question of whether “internal” describes the predecisional deliberations only, or
1 I fully agree with Part III of the majority’s analysis. See Majority Opinion at 13-16
(resolving attorney-client privilege and work-product doctrine issues).
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 2
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.2 65 P.S. §67.506(d)(1); Dental
Benefit Providers, Inc. v. Eiseman, 124 A.3d 1214, 1223 (Pa. 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
2 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).
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 3
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, pre-
decisional 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 11 (“[T]he statutory provision facially does not apply to communications with
outside consultants.”).
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).3 Furthermore, while the federal FOIA jurisprudence cited by both the majority
3Exemption 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
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 4
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.
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., 65 A.3d 361, 380, 381 (Pa. 2013); Bowling v. Office of Open Records, 75 A.3d
453, 466 (Pa. 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
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).
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 5
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,
243 A.3d 19, 33 (Pa. 2020), quoting, respectively, SWB Yankees LLC v. Wintermantel,
45 A.3d 1029, 1041 (Pa. 2012) and Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 29
(Pa. 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, 232 A.3d 716, 724 (Pa. 2020), quoting Pa.
State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017).
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 6
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.
[J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 7