Bagwell v. Pennsylvania Department of Education

CONCURRING OPINION BY

Judge McCullough.

I concur in the result reached by the Majority. I write separately to address my concerns regarding the record before the Office of Open Records (OOR) and to expound upon the Majority’s discussion of whether, or under what circumstances, the attorney work-product and attorney-client privileges can be waived under the Right-to-Know Law (RTKL).1

Regarding the record created before the OOR, it is not clear the OOR had “the *422necessary, requisite information and evidence before it to properly adjudicate the matter,” (op. at 413, citing OOR’s Final Determination at 6), or that this Court would not benefit from a more developed record in resolving the legal issues presented in this case. (See op. at 413-14.)

Here, the OOR issued its final determination on December 20, 2013. The day before, the Court of Common Pleas of Dauphin County unsealed the grand jury testimony of Penn State University’s (PSU’s) former general counsel. This testimony related directly to the issue of PSU’s purported waiver of attorney-client privilege. Requester immediately asked for a hearing in this regard but his request was denied by the OOR. The Majority notes that the OOR appears to have considered this grand jury testimony but concedes that the OOR did not discuss the impact that the testimony could have had on its conclusion that PSU did not waive the asserted privileges, (op. at 419.) While the OOR notes in its final determination that PSU and Requester “made various other submissions after the record closed in this matter” and that these submissions “will be considered as part of the record before the OOR,” (OOR’s Final Determination at 5), the OOR never identified what those records were and made no specific mention of the grand jury testimony. Nevertheless, given my conclusion below that waiver would not apply, as well as the OOR’s discretion with respect to holding a hearing and accepting evidence which it deems probative, I cannot conclude that the OOR erred in this regard. See Office of Open Records v. Center Township, 95 A.3d 354 (Pa.Cmwlth.2014) (noting the discretion afforded to an OOR appeals officer to hold a hearing and accept and assess evidence that is deemed probative); Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa.Cmwlth.2013) (en banc) (noting that section 1101(b)(3) of the RTKL, 65 P.S. § 67.1101(b)(3), makes clear that the OOR has discretion to conduct a hearing).

Initially, the Majority notes that our Supreme Court has held that “the work-product doctrine is not absolute but, rather, is a qualified privilege that may be waived,” (op. at 417, citing Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939, 945 (2005)), and states that “[o]nee attorney-client communications are disclosed to a third party, the attorney-client privilege is deemed waived.” (Op. at 417 citing Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406 (1999)). The Majority then assumes that the attorney work-product and attorney-client privileges are waivable for purposes of the RTKL.

However, in a 2012 unpublished opinion, Rittenhouse v. Board of Supervisors of Lower Milford Township, 2012 WL 8685549 (Pa.Cmwlth., No. 1630 C.D.2011, filed April 5, 2012), this Court held that waiver principles did not apply to a requested document which constituted attorney work product and was not accessible in the first place, even if it was disclosed to other parties. In so holding, we relied on, and extended the reasoning of, our decision in LeGrande v. Department of Corrections, 920 A.2d 943 (Pa.Cmwlth.), appeal denied, 593 Pa. 751, 931 A.2d 659 (2007).2

In LeGrande, we held that the Department of Corrections’ (DOC) Sentence Computation Procedures Manual (Manual) constituted attorney work product and, hence, by definition, was not a public record. Additionally, we held in LeGh'ande that even if DOC had disclosed the Manual to third parties, this disclosure would not *423convert the Manual into a public record. Citing LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001), we explained that since work product does not fall under the definition of a “public record,” waiver principles did not apply. We noted that “[a] waiver cannot transform a document, which is by definition not a public record, into a document that comports to the very same definition.” LeGrande, 920 A.2d at 949. Further, we cited the holding of LaValle that “the character of the material as work product serves not as an exception to the disclosure of material which would otherwise qualify as accessible, in which case waiver principles might be pertinent, but rather, as a definitional limitation upon what would be accessible in the first instance. We find that, where records are not the type of materials within the [Lawj’s initial purview, waiver principles cannot be applied to transform them into records subject to its coverage.” LaValle, 769 A.2d at 460 (emphasis in original).

Somewhat akin to the definition of a “public record” under the former Right to Know Act,3 the definition of a “public record” under the current RTKL does not include a record protected by a privilege, such as attorney work product and attorney-client communications. Additionally, while section 305(a) of the RTKL, 65 P.S. § 67.305(a), states the general rule that “[a] record in the possession of a Commonwealth ' agency or local agency shall be presumed to be a public record,” section 305(a)(2), 65 P.S. § 67.305(a)(2), provides that the presumption shall not apply if “the record is. protected by a privilege.” Notably, the attorney work-product and attorney-client privileges are not enumerated as “exemptions” under section 708 of the RTKL, 65 P.S. § 67.708. Rather, as discussed above, these privileges serve not “as an exception to the disclosure of material ... in which case waiver principles might be pertinent,” but “as a definitional limitation upon what would be accessible in *424the first instance.” LaValle, 769 A.2d at 460. Given Rittenhouse, and the cases upon which it relies, LaValle and LeGrande, it is quite possible that the attorney work-product and. attorney-client privileges can never be waived under the RTKL. However, I believe the Majority correctly declines to adopt such a bright-line rule and, instead, applies a selective/hmited waiver.

Nevertheless, it is not clear to me how the Majority is applying our Supreme Court’s affirmance in Nationwide Mutual Insurance Co. v. Fleming, 605 Pa. 468, 992 A.2d 65 (2010) (op. in support of affir-mance; equally divided court), to “conclude the circumstances here do not warrant waiver of the privileges.” (op. at 420.) In Fleming, both the opinion in support of affirmance and the opinion in support of reversal applied the subject matter waiver doctrine to the attorney-client privilege, but reached opposite conclusions. The opinion in support of affir-mance ultimately held that the disclosure of two documents addressing the same subject matter as the requested document effectuated a waiver of the attorney-client privilege as to the requested document.4 However, the opinion in support of affir-mance did explain that subject matter waiver is grounded on the premise that a party cannot selectively disclose information to its advantage, thereby using the selective disclosure as both “a sword and a shield.” 992 A.2d at 69 (citation omitted.) This opinion also noted that unless the limited disclosure is used in such a manner, the application of subject matter waiver would not be justified. Id.

In the present case, PSU is not using its selective disclosures as weapons to the detriment of Requester or any adverse party. Instead, PSU, through its legal counsel and chief investigator, the law firm of Freeh Sporkin & Sullivan, LLP, provided limited disclosures to certain law enforcement authorities and periodic updates of its investigation to the National Collegiate Athletic Association and the Big Ten Conference, which, according to the affidavit of Frank Guadagnino, another legal counsel for PSU, did not include privileged information. Such limited disclosures, coupled with the fact, as noted by the Majority, that Pennsylvania courts have not generally adopted the subject matter waiver doctrine, support the Majority’s application of a selective/limited waiver in this case.5

As to the burden of proving waiver, I believe the Majority correctly imposed the burden on Requester. This Court has previously addressed the shifting burdens of proof in an attorney-client privilege inquiry. In Joyner v. Southeastern Pennsylvania Transportation Authority, 736 A.2d 35, 38 n. 3 (Pa.Cmwlth.1999), we concluded that our Supreme Court’s holding in Commonwealth v. Maguigan, 511 Pa. 112, 511 A.2d 1327, 1334 (1986), establishes that “the party asserting [attorney-client] privilege has the initial burden to prove that it is properly invoked” and only then does the burden shift to “the other party to prove why the applicable privilege would not be violated by the disclosure, e.g., the privilege was waived, an exception to the *425privilege exists and is applicable, etc.” In Joe v. Prison Health Services, Inc., 782 A.2d 24, 81 (Pa.Cmwlth.2001), we held that “[t]he party asserting [attorney-client] privilege has the initial burden to prove that it is properly invoked, and the party seeking to overcome the privilege has the burden to prove an applicable exception to the privilege.”

For the reasons stated above, I concur in the result reached by the Majority.

. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

. LeGrande was decided under the RTKL's predecessor statute, the Right to Know Act, formerly the Act of June 21, 1957, P.L. 390, 65 P.S. §§ 66.1-66.9.

. Former section 1 of the Right to Know Act, 65 P.S. § 66.1, defined a "public record” as:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records” shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person’s reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

The current RTKL defines "privilege” and "public record” in section 102 as:

"Privilege.” 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.
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"Public record.” A record, including a financial record, of a Commonwealth or local agency that:
(1) is not exempt under section 708;
(2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or
(3) is not protected by a privilege.

65 P.S. § 67.102.

. The opinion in support of reversal concluded that the disclosed documents and the requested document do not contain the same subject matter and, hence, the attorney-client privilege was not waived with respect to the requested document.

. As the Majority notes, our Superior Court recognized the concept of selective waiver in the context of attorney work product in Commonwealth v. Sandusky, 70 A.3d 886 (Pa.Super.2013), holding that the core purpose of the attorney work-product doctrine was not violated by a limited disclosure to the court and the supervising judge of a grand jury.