Attorney Audrey Buglione's electronic newsletter keeping you
"In the Know" on the Right to Know Law

October 23-29, 2014 - In This Issue:
Case law review
To keep you In the Know, each week we review select Office of Open Records Final Determinations and decisions issued by the Commonwealth Court or Supreme Court.  
Commonwealth Court
Bagwell v. Pa. Dept. of Education, 79 C.D. 2014, October 31, 2014 - Affirmed: Pennsylvania has not adopted subject matter waiver of privileges.
- Attorney work-product doctrine
- Waiver of privileges

The records requested in this matter involve the investigation conducted by the law firm of Freeh Sporkin & Sullivan (Freeh) and the scandal involving former PSU football coach Jerry Sandusky. The Request sought emails, letters, memos, contracts and reports sent to former Department of Education Secretary Ron Tomalis from various individuals including Louis Freeh and PSU Board members. The Department partially denied the Request citing the attorney work-product and attorney-client privileges, as well as various exemptions set forth in the RTKL. 

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:

:The records at issue were received by the Secretary in his role as a co-chairperson of the PSU Task Force investigating the Sandusky scandal. In finding that the privilege applies to the withheld records, the Court found that "[a]s a [PSU] Board member, the Secretary falls under the client umbrella and is protected by the privileges."  


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." 



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.


For more detail on this case, visit our  website.
Heintzelman v. Dept. of Community and Economic Development, 512 C.D. 2014, October 30, 2014 - Affirmed:
- Section 708(b)(10): Predecisional deliberations

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.  


For more detail on this case, visit our  website.
OOR Decisions
Fennel v. Philadelphia Police Department 
- Denied: Requester failed to comply with agency policy requiring use of a form
- Section 504

The Request in this matter was submitted to the Department's open records officer and clearly indicated that it was a RTKL Request.  The Department timely responded to the Requester denying the Request because the Requester failed to use a form to submit the Request as required by the Department's policy. 

The OOR made clear that the RTKL does not require a Requester to use a form, but does permit an agency to "promulgate regulations and policies to govern its administration of the RTKL."  The OOR affirmed the denial noting that the Requester was also notified of the policy on at least four prior occasions.

Question of the Week:
Is a Requester required to use a specific form to submit a RTKL Request?     
Generally speaking, no - unless an agency has created and posted a policy requiring the use of a form. The Pennsylvania Right to Know Law permits an agency to promulgate policies and procedures for complying with the RTKL. One of those polices could be requiring a Requester to use a form when submitting a RTKL Request.  An agency may develop its own form, but it must also accept the Office of Open Records standard form.

With or without a policy, an agency cannot ignore a Request that is submitted without a form.  The agency is required to timely respond to the Request and notify the Requester of the agency's policy. If the agency does not have a written and publicly available policy, it cannot deny a Request simply because the Request is not submitted on a form.

For  more information on how the Law Office of Audrey Buglione can assist you in drafting policies or reviewing current policies to ensure they are in compliance with the RTKL, contact us at 717-657-1597 or via email at 
IMPORTANT:   The answers to these questions should not be deemed legal advice or be acted upon without prior consultation with appropriate professional advisors. 
Learn more about the RTKL and how it affects you, your agency or your business
OOR Annual Training held Oct. 22, 2014
If you missed the 2014 Annual Training presented by the Office of Open Records in Harrisburg, you can watch in courtesy of PCN TV here.

Got RTKL issues? We can help.
Our goal is to help make your job as the Agency Open Records Officer responding to Right to Know Request as efficient and painless as possible. Knowing the proper response to an uncommon or confusing request for records can be difficult without spending hours keeping up with the ever changing RTKL.  Commonwealth Agency Open Records Officers have dedicated attorneys to turn to when such questions arise. Until now, smaller agencies did not. The Law Office of Audrey Buglione offers rapid legal guidance to your pressing RTKL questions. Giving the right response from the beginning helps to avoid protracted and costly litigation before the Office of Open Records or courts. As a former appeals officer, Audrey is intimately familiar with the RTKL and the subtle differences between what makes one record public and a similar record not public. 

For more information on how we can assist your agency from the Request through any appeals and avoid wasting taxpayer dollars on unnecessary RTKL litigation, contact us at  717-657-1597or 

Are your agency policies in compliance with the RTKL?  Are your employees up-to-date on how the RTKL impacts their duties? Are your procedures for complying with the RTKL efficient and cost-effective?  Do you have a records management plan? 

If your answer is No to any of those questions, you may be needlessly wasting tax payer dollars and putting your agency at risk for increased public scrutiny leading to expensive litigation.

As a former Appeals Officer and Training Coordinator for the Office of Open Records Audrey knows first hand the difficulties agencies may face in complying with the RTKL. Audrey offers consulting services to review your current policies, draft new policies or revise existing policies, and provide a detailed plan on how to manage records and respond to RTKL requests in an efficient and cost effective manner that increases public confidence in your agency.

Audrey is also available to provide customized training sessions or speak at your upcoming meeting or conference.

For more information on how consulting and training, contact us at  717-657-1597 or 

Has a denial or failure to respond to a request resulted in an appeal or the necessity of an appeal to the Office of Open Records or beyond? The RTKL and OOR procedures establish a very rapid response period to appeals with little time to get up to speed on the status of the law. If you have a RTKL matter, it is important that you seek legal guidance as soon as possible. Audrey handles RTKL matters for private citizens, media, and government agencies in all Pennsylvania counties including appeals before the Office of Open Records, courts of common pleas and Commonwealth Court.

For more information on how Audrey can represent you, your agency or your organization in the appeals process or attorney referral options, contact us at  717-657-1597 or 

In the News

In the Know
A weekly electronic newsletter on the Pennsylvania Right to Know Law presented by 
The Law Office of Audrey Buglione
4304 New Jersey Avenue
Harrisburg, PA 17112
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Keeping you "In the Know on the Right to Know"

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Disclaimer: This newsletter is for general information only. The information presented is not legal advice, and your use of it does not create an attorney-client relationship. No visitor to this newsletter or the website should act on the basis of any content included therein without seeking the appropriate legal advice from counsel. Any prior results described do not guarantee a similar outcome. The attorney responsible for maintaining this newsletter is Audrey Buglione.


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