The Requester argued that the privileges had been waived by disclosure of the subject matter to third parties.  

The only issues raised for the court's consideration were 1) whether applying the work-product doctrine was in error when there was no evidence that the records were prepared in anticipation of litigation and 2) whether PSU waived any privileges when it entered waiver agreements with third parties and disclosed materials pertaining to the same subject as the information requested.  

Work product doctrine:

In analyzing whether the attorney work-product doctrine applies, the Court noted that it provides broader protection than the attorney-client privilege. The Court rejected the Requester's argument that the protection applies only when records are "prepared in anticipation of litigation." The Court held that "[t]he anticipation of litigant part of the work-product doctrine is not an absolute requirement" and that such materials merely "constitute[] and example of the doctrine's coverage." 

Waiver:

The Requester argues that PSU deliberately disclosed the subject matter of the records sought and thus waived the protections of the attorney-client privilege or attorney work product doctrine. The Court found that even if PSU allowed Freeh to waive the privilege applying to specific information in a specific form the limited waiver would not apply unless the Court applied a broad subject matter wavier, which it declined to do noting that "Pennsylvania courts have not adopted subject-matter waiver." The Court held "[t]he circumstances here weigh in favor of selective or limited waiver, retaining the privileged nature of the records where they contain mental impressions.

In this unpublished opinion the Court analyzed whether the OOR erred in failing to consider a Requester's grounds for release when an exemption for withholding records from public disclosure applied.  The Requester sought emails regarding a grant the Department of Community and Economic Development ("DCED") issued to Point Township.   

Upon reviewing the records in camera the OOR upheld the denial of all but two of the redacted emails concluding that the predecisional deliberations exemption applied. The Court found "no basis upon which to reverse OOR's determination that DCED established the factual prerequisites for the predecisional deliberative exception" because the Requester essentially conceded that the exemption applies by stating that the redactions "contain deliberations," and are "most likely" between agency officials regarding the matter and how to respond.