Commonwealth Court Addresses Right To Know Law Exceptions

August 2011Newsletters In the Zone

In Kaplin v. Lower Merion Township, 19 A.3d 1209 (Pa.Cmwlth. 2011), decided May 5, 2011, the Commonwealth Court addressed the Right to Know Law (RTKL) and exceptions under that law, specifically under 65 P.S. § 67.708(b)(10)(i) (708 (b)(10)(i)), and how that exception interacts with provisions of the Pennsylvania Municipalities Planning Code (MPC). On appeal, Kaplin (the requestor), an attorney representing the Righters Ferry Association (RFA), argued the trial court failed to interpret the exceptions to the RTKL properly with respect to the MPC because the records sought were not deliberative and the communications were not internal as required under the exception.

RFA retained the requester to represent them in their development of nearly 600 apartments in Lower Merion Township. Pursuant to township policies, RFA filed a conditional use application with the Board of Commissioners (the board) regarding their development, and a hearing was held to examine the application. Prior to the board’s decision on the application, the requester filed a request under the RTKL for access to all written and electronic communications between and among members of the board and township staff with respect to the application as well as regarding specific properties in the township.

Upon review of the request, the township stated that of the 1,215 total pages of documents that came up under the request, various pages fit an exception within the RTKL, under 708 (b)(10)(i), which provides that the exception covers:

[I]nternal, pre-decisional deliberations of an agency, its members, employees or officials, or pre-decisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including…memos or other documents used in the predecisional deliberations. 65 P.S. § 67.708(b)(10)(i).

The township found that because the documents dealt with primarily internal, pre-decisional deliberations between and among board members and township staff, some 322 pages of communications fit the exception under 708 (b)(10)(i) of the RTKL and thus did not need to be disclosed. Moreover, other pages, the township asserted, were protected under attorney-client privilege. The requester thereafter appealed to the Office of Open Records, arguing first that under the definition of deliberation under the “Sunshine Act,” none of the documents the township claimed were exempted could be considered deliberative because, as defined under the Sunshine Act, deliberations are “[t]he discussion of agency business held for the purpose of making a decision.” The requester stated that because under § 913.2(b)(1) of the MPC, the period for deliberation on the application could not have begun prior to the end of the hearings, which was on December 9, 2009—a full three weeks after the requester filed the request—the communications prior to that time could not be considered deliberative, nor internal, particularly when the discussions requested included discussions with township staff and the board. Additionally, the requester argued any documents the township claimed to be protected by attorney-client privilege lacked the proof needed to show the elements of privilege applied.

After two determinations by the Office of Open Records, the Office of Open Records ultimately found that because the township and the board were separate entities, the communications between them could not be considered internal for purposes of determining whether the documents were an internal pre-decisional deliberative process, and the remaining documents were protected by the attorney-client privilege, but the privilege was waived when they disclosed those communications to a third party. Both sides appealed to the trial court.

The trial court found the exception under Section 708(b)(10)(i) included discussions between the township staff and the board and thus rejected the requester’s argument that the communications were not deliberative because they failed to meet the definition of deliberation under the Sunshine Act. The trial court also held that various e-mails between the township staff and the board were subject to the pre-decisional deliberation exception because despite the fact that some staff and the board were separate parties, the communications were ultimately still internal to the township and thus fit the exception in 708(b)(10)(i).

The Commonwealth Court then addressed the requester’s appeal, in which the requester first argued the trial court erred in holding the communications between board members could be subject to the exception under 708(b)(10)(i) when they occurred before the period for deliberation, as set out in the MPC, and second that the communications between the board and township staff could meet the requirements of the exception under 708(b)(10)(i) when the communications were ultimately impermissible ex parte communications and not internal communications as required by the exception.

With respect to the requester’s first argument that the communications occurred prior to the period for deliberation as set out under the MPC and thus should not fall within the 708(b)(10)(i) exception, the court disagreed with the requester. The court stated that under Section 913.2(b)(1) of the MPC, a governing body must make a decision on a conditional use application within 45 days of the end of hearings on the application, but it does not specifically state whether the governing body can communicate prior to the close of hearings. The court found that in no way does the MPC prohibit the board from engaging in deliberative communications prior to the close of hearings. Furthermore, the court dismissed the requester’s reliance on a Pennsylvania Supreme Court case, Wistuk v. Lower Mount Bethel Township Zoning Hearing Board, as misplaced. Despite the requester’s interpretation that Wistuk stood for the secrecy of zoning and hearing processes such that board members are akin to jurors and cannot discuss the application prior to the close of a hearing, the court noted Wistuk simply stood for the proposition that a meeting for purposes of deliberation and discussion did not qualify as a hearing to toll the 45-day period set out under the MPC. As a result, the court affirmed the trial court’s ruling on the first issue.

Regarding the second issue—whether the communications between board members and township staff could fall within the exception as internal communications or whether the communications were impermissible ex parte communications and represented a conflict of interest as described by the requester—the court disagreed with the requester. Because under 708(b)(10)(i), a communication need not be internal within one agency but can be between another agency with respect to pre-decisional deliberations, the court found the communications between the board and the township staff regarding the logistics of issuing a decision—even if the township was required to be considered a separate agency—would still be considered internal, pre-decisional communications between two agencies and thus covered under the exception.

For more information, please contact Kimberly A. Freimuth at 215.918.3627 or [email protected].