          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Department of                     :
Education,                                     :
                       Petitioner              :
                                               :
               v.                              :     No. 1617 C.D. 2014
                                               :
Ryan Bagwell,                                  :
                              Respondent       :

Pennsylvania State University,                 :
                        Petitioner             :
                                               :
               v.                              :     No. 1729 C.D. 2014
                                               :
Ryan Bagwell,                                  :    Argued: December 7, 2015
                              Respondent       :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge1
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION
BY JUDGE SIMPSON                               FILED: January 29, 2016

               In these consolidated appeals, the Pennsylvania Department of
Education (Department) and the Pennsylvania State University (PSU) petition for
review of the Office of Open Records’ (OOR) final determination that directed
disclosure of records to Ryan Bagwell (Requester) under the Right-to-Know Law
(RTKL).2 Requester sought communications between former Secretary of Education
Ronald Tomalis (Former Secretary) and PSU Board members and administrators


      1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
      2
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
implicating the Gerald Sandusky investigation. The Department did not fulfill the
request; instead, it demanded prepayment before reviewing the records. Before
OOR, the Department claimed the attorney-client and work-product privileges and
certain exceptions in Section 708(b) of the RTKL, 65 P.S. §67.708(b), protected the
records. OOR directed disclosure because the Department did not establish any
exemption. OOR also ruled the Department did not comply with Section 902(b) of
the RTKL, 65 P.S. §67.902(b), because it did not demand fees in its initial
response.


            These appeals present a matter of first impression regarding the
timeframe within which an agency may demand prepayment under Section
1307(h) of the RTKL, 65 P.S. §67.1307(h). The Department and PSU contend
OOR erred in ordering disclosure when the Department did not process the request.
They argue OOR also erred in not bifurcating the appeals process to address the
prepayment issue first.   Alternatively, they assert the Department proved the
exempt status of the records. We are also asked to determine whether PSU has
standing to protect the records under the attorney-client and work-product
privileges as the privilege holder. Upon review, we affirm in part, and vacate and
remand in part.


                                 I. Background
            Requester submitted a request to the Department seeking:

            1. all letters, e-mails, memorandums and reports that
            were sent in July 2012, August 2012 or between October
            1, 2011 and March 31, 2012 … between [Former
            Secretary] and [29 individuals who were PSU
            administrators or Board members].


                                        2
             2. all letters, e-mails, memorandums, and reports that were
             sent in July 2012, August 2012 or between November 1,
             2011 and March 31, 2012, pertain to [PSU], and were sent
             between [Former Secretary] and [former Governor Tom
             Corbett and five members of the former Governor’s
             executive staff and cabinet].

Reproduced Record (R.R.) at 6a-7a.

             The Department sent a response within five business days. It invoked a
30-day extension pursuant to Section 902(a) of the RTKL, 65 P.S. §67.902(a)
(Extension Notice). An extension was necessary based on “[t]he extent or nature of
the request” and to conduct a “legal review” regarding access. R.R. at 10a. The
Extension Notice stated a date certain for a response in accordance with Section
902(b) of the RTKL; it did not contain an estimate of fees.


             On the last day of the extension period, the Department advised
Requester it “located approximately 644 pages of records that are responsive to your
request. This is not a final response. We reserve the right, in our final response, to
assert any exceptions to access to the records under the RTKL[.]” R.R. at 13a
(emphasis added). Notably, the Department demanded prepayment of $338.88
($320 for duplication plus $16.88 for postage) in order to “process” the request. Id.
(Prepayment Demand). The Department explained the 644 pages corresponded to
“the number of potentially responsive records,” as it did not perform a legal review
to assess exemptions. Id.


             Relevant here, the Prepayment Demand stated Requester must pay the
estimate “before [the Department] will provide access to the records since the
estimate exceeds $100” pursuant to 65 P.S. §67.1307(h) (relating to prepayment).


                                          3
Id. Unless Requester made the required prepayment, the Department advised its
“obligations under the RTKL are ended with regard to this request … [as] [a]ll
applicable fees must be paid in order to receive access to the records requested.” Id.
Once Requester paid the fee, the Department would assert any “available exceptions
under the RTKL” at that time. Id.


              Requester appealed to OOR, asserting his request was deemed denied
because an agency may not issue interim responses and reserve denial grounds. As
to the prepayment request, Requester argued an agency must include an estimate of
fees in its initial five-day response under Section 902 of the RTKL if it elects to
invoke an extension.     Contending the Department’s response was not “final,”
Requester asked OOR to order disclosure of the 644 potentially responsive records.
R.R. at 4a.


              OOR invited both parties to supplement the record and directed the
Department to notify any interested third parties of their opportunity to participate
in the appeal pursuant to Section 1101(c) of the RTKL, 65 P.S. §67.1101(c). PSU
requested to participate in the appeal, and OOR granted PSU’s request.


              Both parties and PSU, as a direct interest participant, supplemented
the record. In its submission, the Department requested OOR to bifurcate the
appeal to first address the prepayment issue.


              Additionally, the Department argued certain responsive records were
exempt from disclosure under the attorney-client and work-product privileges, as



                                          4
well as the predecisional deliberative exception and the noncriminal investigative
exception.      The Department submitted an affidavit of the Former Secretary
(Tomalis Affidavit). In its position statement, PSU explained the Department did
not identify the responsive records. As a result, PSU was unable to review the
records and assess applicable exemptions. Based on the subject matter, PSU
asserted the records would include communications between counsel and PSU
Board members implicating the attorney-client and work-product privileges. R.R.
at 49a. Both the Department and PSU asked OOR to bifurcate the appeals process
to address prepayment prior to accepting evidence regarding the substantive
exemptions.


               Ultimately, OOR issued its final determination granting access to the
records, with redactions, Bagwell v. Department of Educ., OOR Dkt. No. AP
2014-0935 (filed August 13, 2014) (Final Determination). Interpreting the RTKL,
OOR found that the Department waived its ability to seek prepayment under Section
1307(h) of the RTKL because it did not include its fee estimate within the five-day
notice. R.R. at 68a. OOR explained “the RTKL does not create or mention any
extension mechanism or ‘interim response’ process outside of the thirty day time
period, without written authorization from the requester.” R.R. at 68a-69a. As a
result, OOR deemed the Prepayment Demand the “response”3 because it was issued
after invoking a 30-day extension. Id.




       3
          “Response” is defined as: “Access to a record or an agency’s written notice to a requester
granting, denying or partially granting and partially denying access to a record.” Section 102 of the
RTKL, 65 P.S. §67.102.



                                                 5
               As to the merits, OOR determined the Department did not establish
any exemption protected information other than telephone numbers and email
addresses, and home addresses of minors. Specifically, OOR found the Tomalis
Affidavit insufficient because it merely parroted the elements of the privileges, and
it contained only conclusory statements without factual support that the records
constituted deliberations or investigations.             Accordingly, OOR ordered the
Department to disclose the records with minimal redaction.4


               The Department filed a petition for review of the Final Determination
to this Court, which was docketed at No. 1617 C.D. 2014. PSU filed a notice of
intervention in this appeal, which Requester challenges in his brief. PSU then
appealed the Final Determination in a separately docketed proceeding No. 1729
C.D. 2014, which Requester asks this Court to quash for lack of standing. This
Court then consolidated the petitions for review. OOR filed an amicus curiae
brief. After hearing argument by all parties and OOR, we address these appeals in
our appellate capacity.


                                        II. Discussion
               The RTKL is remedial in nature and “is designed to promote access to
official government information in order to prohibit secrets, scrutinize the actions


       4
         After OOR issued its final determination, PSU sought reconsideration. It asserted lack
of an opportunity to establish exemptions. In conjunction with its reconsideration petition, PSU
submitted an affidavit pertaining to four emails it speculated were within the potentially
responsive records. However, it explained the affidavit was incomplete because the Department
did not identify or furnish any responsive records to PSU for a legal assessment. OOR did not
reconsider its determination, claiming the petition for reconsideration was denied by operation of
law when the Department appealed.



                                                6
of public officials, and make public officials accountable for their actions.” Pa.
State Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014). Consistent with the
RTKL’s goal of promoting government transparency and its remedial nature, the
exceptions to disclosure of public records must be narrowly construed. Id.


              These appeals present several issues for this Court’s review,5 involving
procedural questions, statutory construction, and disclosure disputes. First, we
address Requester’s challenge to this Court’s jurisdiction over PSU’s direct appeal,
and whether this Court should quash PSU’s intervention notice.                   Second, we
consider whether the RTKL requires an agency invoking an extension to demand
prepayment within five days where fees are expected to exceed $100. Third, we
address whether OOR erred in directing disclosure of responsive records when the
Department did not review the records before seeking prepayment, and when the
Department submitted the Tomalis Affidavit as evidence to establish privileges and
RTKL exceptions. Fourth, we consider whether OOR erred by not bifurcating the
appeal to first decide the propriety of the Prepayment Demand. Finally, we assess
whether attorney fees are warranted.


                         A. PSU’s Standing and Party Status
              Initially, we address Requester’s contention that this Court lacks
jurisdiction over PSU’s appeal and that it should quash PSU’s intervention notice.
In this case, PSU appealed OOR’s Final Determination, docketed at 1729 C.D.

       5
         In a RTKL appeal involving a Commonwealth agency, this Court has the discretion to
rely upon the record created below or to create its own. Dep’t of Labor & Indus. v. Heltzel, 90
A.3d 823 (Pa. Cmwlth. 2014) (en banc); see also Bowling v. Office of Open Records, 990 A.2d
813 (Pa. Cmwlth. 2010) (en banc), aff’d, 75 A.3d 453 (Pa. 2013).



                                              7
2014, and filed a notice to intervene in the Department’s appeal of the same
determination, docketed at 1617 C.D. 2014.


             PSU’s direct interest participation under Section 1101(c) of the RTKL
does not confer party status under the RTKL. Allegheny Cnty. Dep’t of Admin.
Servs. v. A Second Chance, Inc., 13 A.3d 1025 (Pa. Cmwlth. 2011). As neither the
requester nor the agency before OOR, PSU has no right to appeal under the RTKL.
See Sections 1301(a) and 1302(a) of the RTKL, 65 P.S. §§67.1301(a), 67.1302(a)
(stating “a requester or the agency may file a petition for review”). However, PSU
asserts a due process right to appeal founded in the Pennsylvania Constitution as
implemented by the Judicial Code.


             We consider whether PSU has a due process right to directly appeal,
and a separate right to participate in these proceedings.


                                 1. Right to Appeal
             This Court recently addressed a motion to quash a direct interest
participant’s petition for review in West Chester University v. Schackner (Bravo)
124 A.3d 382 (Pa. Cmwlth. 2015). There, a third-party contractor petitioned for
review from OOR’s determination requiring disclosure of a marketing contract.
The contractor alleged the contract contained confidential proprietary information
and trade secrets exempt under Section 708(b)(11) of the RTKL, 65 P.S.
§67.708(b)(11). We considered the legislative intent to protect trade secrets under
the RTKL and the Uniform Trade Secrets Act (Act), 12 Pa. C.S. §§5301-5308. In
our analysis, we noted the Act instructs courts to preserve secrecy of trade secrets



                                          8
by any reasonable means, including “granting protective orders in connection with
discovery proceedings, holding in camera hearings, sealing the records of the
action.” Bravo (quoting 12 Pa. C.S. §5306). After recognizing proprietary records
and trade secrets implicate a property interest, we held the contractor had a due
process right, outside the RTKL, to preserve its interest in protected information.
Thus, the contractor had standing predicated on its due process right to protect its
property interest.


             Here, the interest PSU seeks to protect is the attorney-client and work-
product privileges as the privilege holder. Similar to trade secrets, our courts
recognize the sanctity of preserving the privileges asserted here. Gillard v. AIG
Ins. Co., 15 A.3d 44 (Pa. 2011); McGowan v. Dep’t of Envtl. Prot., 103 A.3d 374
(Pa. Cmwlth. 2014); Dages v. Carbon Cnty., 44 A.3d 89 (Pa. Cmwlth. 2012).


             As to the importance of protecting these privileges in the RTKL
context, our Supreme Court explained:

             The RTKL … specifically exempts privileged documents
             from disclosure by defining public records subject to
             disclosure as ‘[a] record, including a financial record, of
             a Commonwealth or local agency that … is not protected
             by a privilege.’ 65 P.S. §67.102; see also [Section 305(a)
             of the RTKL,] 65 P.S. §67.305(a) (‘A record in the
             possession of a Commonwealth agency or local agency
             shall be presumed to be a public record.                The
             presumption shall not apply if . . . the record is protected
             by a privilege.’). … While an agency ‘may exercise its
             discretion to make any otherwise exempt record
             accessible,’ it does not have such discretion if the record
             is privileged. [Section 506(c)(2) of the RTKL,] 65 P.S.
             §67.506(c)(2).



                                          9
Levy v. Senate of Pa. (Levy II), 65 A.3d 361, 368 (Pa. 2013) (emphasis added).
Our courts also attempt to preserve attorney privileged material through various
methods, including in camera review and privilege logs. Id.; Dep’t of Educ. v.
Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015) (Bagwell (2015)).


              We are persuaded by federal jurisprudence approving standing to
challenge disclosure of privileged records. Generally, standing inures to the person
or entity holding the privilege to preserve it. In re Grand Jury, 705 F.3d 133 (3d
Cir. 2012) (holding interest in non-disclosure of work product and attorney-client
privileged material conferred standing on corporation to object to their disclosure).


              Further, akin to the apparent intent to protect trade secret status, there
is a clear legislative and judicial intent to protect attorney-client material. See 42
Pa. C.S. §5904 (codifying attorney-client privilege); Pa. R.C.P. No. 4003.3
(protecting work product from discovery). “The General Assembly specifically
chose to protect this type of information in [Section 102] of the RTKL.
[Therefore], granting access to the requested record would eviscerate the protection
that was expressly provided by the General Assembly.” Dep’t of Corr. v. Maulsby,
121 A.3d 585, 593 (Pa. Cmwlth. 2015).


              Mindful that attorney-client and work-product privileges enjoy
statutory protection and that privileged records are not public records to which the
public has a statutory right of access, the privilege holder has an interest in their
protection.   Not permitting the privilege holder to defend against disclosure
“violates the statutory scheme of the RTKL.” Pa. State Educ. Ass’n v. Dep’t of



                                          10
Cmty. & Econ. Dev. (PSEA), 110 A.3d 1076, 1086 (Pa. Cmwlth. 2015) (en banc).
Accordingly, we hold attorney privileges constitute a sufficient interest to allow a
privilege holder standing to appeal an order directing disclosure of allegedly
privileged material.


                In addition, Article V, Section 9 of the Pennsylvania Constitution
guarantees the right to an “appeal ... from an administrative agency to a court of
record or to an appellate court, the selection of such court to be as provided by
law.” PA. CONST. art. V, §9. This constitutional right is “implemented by Section
5105(a) of the Judicial Code, 42 Pa. C.S. §5105(a).[6]” Com. v. Englert, 457 A.2d
121, 126 (Pa. Super. 1983). Although the provision applies only to agency actions
that are adjudications or “decisions that are …judicial in nature[,]” this Court
explicitly declared: “[S]ection 5105(a)(2) of the Judicial Code … grants the right
to appeal agency determinations that are not considered adjudications pursuant to




       6
           Section 5105(a)(2) of the Judicial Code provides:

                There is a right of appeal under this subsection from the final order
                (including an order defined as a final order by general rule) of
                every:
                                                ****
                     (2) Government unit which is an administrative agency within
                the meaning of section 9 of Article V of the Constitution of
                Pennsylvania to the court having jurisdiction of such appeals. An
                order is appealable under this paragraph notwithstanding the fact
                that it is not appealable under Chapter 7 of Title 2 (relating to
                judicial review).

42 Pa. C.S. §5105(a)(2).




                                                11
the Administrative Agency Law[.][7]” Wheeler v. Pa. Bd. of Prob. & Parole, 862
A.2d 127, 129 (Pa. Cmwlth. 2004) (emphasis added).


               OOR’s determination is “judicial in nature” because OOR is “a quasi-
judicial tribunal[.]’” Office of Open Records v. Center Twp., 95 A.3d 354, 363
(Pa. Cmwlth. 2014) (en banc). Our Supreme Court recently recognized,

               OOR, with its Executive Director at the helm, is a unique
               administrative agency tasked with applying the standards
               established in the RTKL and making decisions about
               whether government agencies and officials … have acted
               timely, carried their burden of establishing why a record
               is not subject to public access, as well as myriad other
               issues.

Arneson v. Wolf __ A.3d __, __ (Pa., No. 51 MAP 2015, filed October 27, 2015)
(emphasis added).


               Further, addressing the right to an appeal, our Court recently
emphasized “[t]his constitutional proviso” offers a means of seeking judicial
review of quasi-judicial action, recognizing “the fact that both property rights and
personal rights can be seriously affected by [administrative agency] decisions.”
Center Twp., 95 A.3d at 364 (quotation omitted); see also Bravo, 124 A.3d at 391
n.13. However, in order to rely on Section 5105 of the Judicial Code, a party
“must show [it] meet[s] the traditional test for standing.” Cent. Storage & Transfer
Co. v. Pa. Pub. Util. Comm’n, 477 A.2d 568, 571 (Pa. Cmwlth. 1984).



      7
          2 Pa. C.S. §§501-508, 701-704.



                                           12
              The traditional test for standing requires a party seeking to challenge
an agency action to show a “direct and substantial interest [and] a sufficiently close
causal connection between the challenged action and the asserted injury” so the
interest qualifies as immediate. DeFazio v. Civil Serv. Comm’n of Allegheny
Cnty., 756 A.2d 1103, 1105 (Pa. 2000).                Our Supreme Court defined these
elements as follows:

              [A] substantial interest requires some discernible adverse
              effect to some interest other than the abstract interest of
              all citizens in having others comply with the law. …
              Direct simply means that the person claiming to be
              aggrieved must show causation of the harm to his interest
              by [the government’s actions]. The immediacy or
              remoteness of the injury is determined by the nature of
              the causal connection between the action complained of
              and the injury to the person challenging it.

Id. (quotation omitted).


              As privilege holder, PSU is able to show a sufficient nexus to the
disclosure dispute to afford it standing to challenge OOR’s Final Determination.
PSU is aggrieved by an order directing disclosure of records that implicate its
attorney-client and work product privileges.             Accordingly, we hold PSU may
appeal from OOR’s Final Determination. As such, this Court exercises jurisdiction
over PSU’s appeal, and we find no merit in Requester’s request to quash it.8




       8
         Because PSU has standing to appeal, we also determine PSU had a sufficient interest to
intervene in this matter. However, PSU erred in filing a notice to intervene because it was not a
party below. See Pa. R.A.P. 1531(a). Nevertheless, PSU may participate as a party aggrieved.



                                               13
                              2. Right to Participate
             Our courts recognize third parties who are the subjects of the record,
or whose information is at risk, may participate in appeals of final determinations
when they participated, or attempted to participate, below. See Bravo (explaining
Section 1101(c) participation does not confer standing, but allows participation
before the courts when either a requester or agency appeals under Chapter 13 of
the RTKL); State Emps. Ret. Sys. v. Fultz, 107 A.3d 860 (Pa. Cmwlth. 2015).


             This Court recognizes a due process right to be heard extended to
third parties in two distinct scenarios: (1) individuals’ home addresses under the
personal security exception, Section 708(b)(1)(ii); and, (2) proprietary or trade
secret information under the trade secrets exception, Section 708(b)(11). See, e.g.,
State Emps.’ Ret. Sys. v. Pennsylvanians for Union Reform (SERS v. PFUR), 113
A.3d 9 (Pa. Cmwlth. 2015) (remanding for OOR to address individuals’ objections
to home address disclosure); Maulsby (recognizing third party’s due process right
to assert exemption as to health care service contract implicating release of
proprietary information).   In both situations, we considered the legislature’s
recognition of the importance of the exemption, and the importance of protecting
the information at issue when the RTKL did not provide for the impact of
disclosure on third parties who have a legitimate interest in protecting the
information at issue.


             Our recent jurisprudence recognizes a third party may be entitled to
due process during the appeals process through notice and an opportunity to
meaningfully defend against disclosure. PSEA; SERS v. PFUR; Fultz; Maulsby;



                                        14
Dep’t of Conservation & Natural Res. v. Vitali (Pa. Cmwlth., No. 1013 C.D. 2014,
filed July 7, 2015) (unreported) (relating to third-party contractor’s confidential
proprietary information). It is now well-established that agencies are not permitted
to waive a third party’s interest in protecting the records. Maulsby; Vitali. At a
minimum, third parties may submit evidence before the initial fact-finder to show
an interest in shielding certain information from disclosure.     See, e.g., PSEA
(relating to protection of home addresses under the personal security exception,
Section 708(b)(1)(ii)); Maulsby (relating to protecting confidential proprietary
information under the trade secrets exception, Section 708(b)(11)).


            Under these circumstances, when PSU had no opportunity to review
records in the Department’s possession to which OOR’s disclosure order applied,
PSU established a deprivation of due process that merits a remand. In its direct
interest statement, PSU explained its inability to submit evidence as to the 644
records potentially at issue. Thus, PSU did not have a meaningful opportunity to be
heard before the initial fact-finder, OOR. Accordingly, we remand this matter to
OOR to allow PSU a meaningful opportunity to preserve its privilege. See Fultz
(remanding for OOR to consider employees’ direct interest submissions).


                             B. Prepayment Demand
            The Department contends it was not required to seek prepayment in
its Extension Notice, and there is nothing in the RTKL requiring a prepayment
notification to be made within five days. Requester counters that Section 902(b)
requires an extension notice to include an estimate of fees, and by expansion, a
request for prepayment when the fee estimate exceeds $100.



                                        15
                We begin by reviewing the relevant statutory framework. Section 901
of the RTKL, which sets forth the general rule for an agency response, states:

                Upon receipt of a written request for access to a record,
                an agency shall make a good faith effort to determine if
                the record requested is a public record, legislative record
                or financial record and whether the agency has
                possession, custody or control of the identified record,
                and to respond as promptly as possible under the
                circumstances existing at the time of the request. All
                applicable fees shall be paid in order to receive access to
                the record requested. The time for response shall not
                exceed five business days from the date the written
                request is received by the open-records officer for an
                agency. If the agency fails to send the response within
                five business days of receipt of the written request for
                access, the written request for access shall be deemed
                denied.


65 P.S. §67.901 (emphasis added). However, when an agency needs additional
time to fulfill a request, Section 902 of the RTKL allows an agency to invoke a 30-
day extension in certain circumstances.9
       9
           An agency may invoke an extension for the following reasons:

                (1) the request for access requires redaction of a record …;
                (2) the request for access requires the retrieval of a record stored
                    in a remote location;
                (3) a timely response to the request for access cannot be
                     accomplished due to bona fide and specified staffing reasons;
                (4) a legal review is necessary to determine whether the record is a
                    record subject to access under [the RTKL];
                (5) the requester has not complied with the agency’s policies
                    regarding access to records;
                (6) the requester refuses to pay applicable fees authorized by this
                    act; or
                (7) the extent or nature of the request precludes a response within
                    the required time period.
65 P.S. §67.902(a).



                                                16
             Regardless of whether an agency proceeds under Section 901 or
Section 902, an agency must respond within five business days either: (1) by
granting or denying access to requested records; or, (2) by invoking an extension
notifying a requester when to expect a substantive response. As to the content of
this notice, Section 902(b) provides: “[t]he notice shall include a statement
notifying the requester that the request for access is being reviewed, the reason for
the review, a reasonable date that a response is expected to be provided and an
estimate of applicable fees owed when the record becomes available.” 65 P.S.
§67.902(b)(2) (emphasis added).


             Additionally, when a fee estimate is expected to exceed $100, an
agency is entitled to demand prepayment “[p]rior to granting a request for access.”
65 P.S. §67.1307(h). Section 1307(h) does not contain a specific timeframe for
demanding prepayment. As both provisions relate to fee estimates, it is reasonable
to construe Sections 1307(h) and 902(b)(2) together. 1 Pa. C.S. §1932.


                                  1. Fee Estimate
             Requester argues OOR did not err in construing Section 902(b) as
requiring a prepayment demand for estimated fees to be included in the Extension
Notice. In light of the surrounding provisions and the practical effect, we disagree.


             Although the plain language of Section 902(b)(2) suggests the five-
day notice “shall include” an estimate of fees, such an interpretation disregards an
agency’s reason for invoking the extension. An agency invokes a 30-day extension
because it needs the additional time, (beyond five business days), to locate, review,



                                         17
analyze or redact records. Stated differently, as interpreted by Requester, Section
902(b)(2) of the RTKL negates the additional time for review allotted by Section
902(a).


             Further, we must consider what preparation of the fee estimate entails.
The only permissible fees under the RTKL are for duplication, postage, and
certification. Section 1307(a), (b), (c) of the RTKL. Fees for staff time reviewing
or redacting records are not permissible. See Section 1307(g) of the RTKL, 65
P.S. §67.1307(g) (“no fee may be imposed for an agency’s review of a record to
determine whether the record is a public record … subject to access in accordance
with [the RTKL]”); State Emps. Ret. Sys. v. Office of Open Records (SERS v.
OOR), 10 A.3d 358 (Pa. Cmwlth. 2010). Therefore, any fee estimate of charges
that may be passed on to the requester must correspond to the number of pages of
records that will be sent to the requester and the cost of sending them. Prison Legal
News v. Office of Open Records, 992 A.2d 942, 948 (Pa. Cmwlth. 2010) (estimate
must include “the methodology used in arriving at the prepayment amount.”).


             In this case, the construction of Section 902(b)(2) proffered by
Requester and OOR is in accordance with its plain language such that any fee
estimate “shall” be sent within five business days. By contrast, the Department
characterizes that construction as unreasonable because determining a fee estimate
within five business days is not feasible when requests are voluminous, or require
legal review or redaction. Both sides present reasonable arguments.
             That Section 902(b) contains the word “shall” does not preclude our
construction reconciling the internal conflict within this provision. Levy II; see



                                         18
also Dep’t of Transp. v. Office of Open Records (Aris), 7 A.3d 329 (Pa. Cmwlth.
2010) (construing phrase “shall consist of” in Section 1303(b), record on appeal, as
permitting additional evidence reviewed by OOR).            Taking a cue from our
Supreme Court, we recognize that “shall” when used in the RTKL may be subject
to equally reasonable interpretations. Levy II.


             Relevant here, in Levy II, our Supreme Court construed the “shall”
language within Section 903 (“shall include the specific reasons for the denial”) as
ambiguous in light of the surrounding provisions. Id. at 380 (recognizing “both
sides present[ed] meritorious positions [construing the RTKL]” based on the “plain
language” of different RTKL provisions). Thus, like our Supreme Court in Levy
II, “we must consider other indicators of legislative intent including ‘[t]he occasion
and necessity for the statute,’ ‘[t]he mischief to be remedied,’ ‘[t]he object to be
attained,’ and ‘[t]he consequences of a particular interpretation.’          1 Pa. C.S.
§1921(c).” Id. at 381.


             In light of the ambiguity of the term “shall” as used here, we apply
statutory construction principles to discern the meaning of the provision in context.
As our Supreme Court analyzed in Levy II:

             In interpreting a statute, we presume that the General
             Assembly does not intend an absurd result, to violate the
             Constitution, nor to favor a private interest over the
             public interest. 1 Pa. C.S. §1922. Additionally, we
             interpret remedial legislation liberally to effect its object
             and promote justice. See, e.g., 1 Pa. C.S. §1928(c).
             Statutes and parts of statutes that relate to the same
             persons or things must be read in pari materia. 1 Pa.
             C.S. §1932.



                                          19
Id. at 380. Accordingly, we construe the RTKL to favor the public interest in
efficient disclosure of public records.


              To that end, we hold a fee estimate does not need to be included in the
first response, sent within five business days, to a requester.10 Just as the “shall” in
Section 903 did not entail waiver of any non-asserted denial grounds, the “shall” in
Section 902(b) does not entail waiver of an agency’s right to demand prepayment
when fees owed are expected to exceed $100. See Levy II.


              Moreover, an agency’s fee estimate must be reasonable. Prison Legal
News. For such an estimate to comprise more than a guess, and closely correspond
to the fees a requester will owe when an agency undertakes the final step of
duplication and physical redaction, an agency must review the records at issue. Id.
At a minimum, a fee estimate should represent the cost of duplicating and sending
public records, not potentially responsive records, to a requester. Indeed, the
alternative would be an agency agreeing to duplicate and send records to which a
valid exemption may apply. Such an interpretation would yield an absurd result.


              Our holding here is not inconsistent with our decision in Prison Legal
News. There, the timing of the prepayment demand was not at issue. We held a
requester may challenge the reasonableness of a fee estimate regardless of a grant

       10
          Although we hold the word “shall” is not mandatory as to including an estimate of fees
in the initial response, the provision may be read as mandating the notice to include three
elements: (1) notice of the review; (2) the reason for the review; and, (3) a reasonable future
date that a response and an estimate of fees is expected to be provided. In other words, the
notice would contain the future response date, at which time both the substantive response and
the estimate of fees would be provided.



                                              20
of access. Importantly, we addressed as a matter of first impression the sufficiency
of a fee estimate. As a result, we remanded to OOR to remand to the agency to
explain how it derived its fee estimate.


             Given the different issue in the current dispute, Prison Legal News
offers limited utility. Also, we recognize Prison Legal News was one of the first
cases construing the RTKL. In the more than five years since that decision, this
Court gained considerable familiarity regarding the RTKL and its quirks, and its
occasional incompatibility with practical application.


             Those years underscore the necessity for ensuring an agency performs
certain steps in processing a request prior to demanding prepayment. We thus
clarify the timeline for processing and making demands for prepayment.          An
agency is not permitted to seek prepayment until it has reviewed the request,
reviewed responsive records, and decided it is granting access to certain records
reviewed. Accordingly, an agency must assess public status before it has the right
to demand prepayment under Section 1307(h) of the RTKL.


             Although we uphold the Department’s construction of Sections 902
and 1307 to allow a prepayment demand to be issued on the last day of the
extension period, the Department did not properly implement the fee estimate
provisions here. As explained above, an agency needs to assess which records are
being produced in order to formulate a reasonable fee estimate.          Here, the
Department claims it did not assess public status before sending the Prepayment
Demand. In so doing, the Department erred.



                                           21
             Contrary to the Department’s implementation of Section 1307(h), an
agency may not use a prepayment demand as an excuse to delay processing a
request. It is unclear what steps in “processing” the Department undertook prior to
demanding prepayment here. At a minimum, it is clear the Department did not
assess public status. Careful review of the Department’s submissions suggests the
Prepayment Demand is a means of charging for its preparation of records for
review, not for duplication for the Requester.


             In its position statement, the Department explained the fee estimate
corresponded to 644 pages as follows:

             In order to properly review the records and identify any
             exceptions to access and complete necessary redactions,
             if any, [the Department] will need to print each e-mail,
             including any attachments, and photocopy any records
             already maintained in hard-copy to maintain the originals
             in their current location and in their unredacted form.
             This initial step would require [the Department] to incur
             the costs to convert to hardcopy or photocopy the
             approximately 644 pages of records. Only then could
             [the Department] proceed to review the records for
             applicability of exemptions and redaction as appropriate.

R.R. at 28a (emphasis added).


             An agency may only pass on the cost of duplication that corresponds
to those pages to which an agency is granting access. See generally Section 1307.
In other words, that the Department is copying or printing 644 pages in order to
review the records to then assess their public status is not a fee that may be passed
on to the requester unless the Department intends to send the requester copies of all


                                         22
644 pages. Because the Department sought to assert a number of exemptions to
disclosure, and thus reduce the number of records ultimately disclosed, it is apparent
the fee estimate did not correspond to the fees that may be passed on to a requester.


             From our review of the Department’s Prepayment Request, it did not
determine whether all 644 pages would be disclosed to Requester.                  The
Department did not analyze the content of the 644 pages as to public status at all.
It reserved that aspect of “processing” the Request until after it received payment
of more than $300.


                                2. Interim Response
             While OOR erred in construing Section 902(b) to require an estimate
of fees within five days, OOR did not err in requiring an agency to issue a final
response within the 30-day extension.       The Department was not permitted to
reserve its reasons for withholding or redacting records to a future response outside
the 30-day extension period.

             The RTKL does not contemplate a series of interim responses. Dep’t
of Transp. v. Drack, 42 A.3d 355 (Pa. Cmwlth. 2012). Rather, “once an agency
exercises its right under Section 902 of the RTKL, it must provide a final response
within the thirty-day period.” Id. at 362 (emphasis in original).


             Our opinion in Drack provides guidance on this issue. There, the
requester submitted a request to the Department of Transportation (DOT) seeking
records relating to a speed control device. DOT invoked a 30-day extension to
make a legal determination as to whether the documents were subject to access


                                          23
under the RTKL. On the last day of the extension period, DOT notified the
requester it was providing an “interim response,” reserving the right to assert any
exemptions to disclosure at an unspecified later date. In this “interim response,”
DOT advised the requester he owed $16.38 in fees from prior requests, and agency
policy required payment of the balance before DOT would process the RTKL
request. Upon receipt of the requester’s payment, DOT would process the request,
determine public status under the RTKL, search and retrieve the records, redact the
records if necessary, and notify the requester of the date on which the records
would be available.


             The requester appealed to OOR. During the pendency of that appeal,
the requester paid the outstanding balance, and DOT provided records from which
it redacted information protected by the attorney-client privilege. Ultimately, OOR
ordered DOT to provide the requester with unredacted records.             DOT then
appealed to this Court.


             Upon review, we agreed with OOR that DOT had an obligation to
raise its denial grounds in the response issued at the end of the extension period.
We reasoned:

             [O]nce an agency exercises its [extension] right under
             Section 902 of the RTKL, it must provide a final
             response within the thirty-day period, and that final
             response, under Section 903 of the RTKL, must identify
             all reasons why an agency is denying access to all or part
             of the requested records.

Drack, 42 A.3d at 362. Consequently, we held an agency was required to identify
all reasons for denying a request within the 30-day extension period.

                                        24
            Drack thus favors an interpretation that an agency should provide a
fee estimate by the last day of the extension period.       Because it issued the
Prepayment Demand on the last day of the extension period, the Department
should have asserted any exemptions within that response. Drack.


            This Court’s more recent decision in Borough of West Easton v.
Mezzacappa (Pa. Cmwlth., No. 1278 C.D. 2014, filed June 8, 2015) (unreported)
also favors inclusion of a fee estimate in the final response. There, this Court
adopted the trial court’s reasoning in West Easton v. Mezzacappa (C.P.
Northampton, No. C–48–CV–2013–12530, filed October 1, 2014) regarding
interpretation of Section 902 and fee demands.


            In Mezzacappa, the borough raised a concern that OOR was “setting
new precedent by requiring that the amount of copying fees be itemized within five
(5) business days,” claiming OOR’s construction was infeasible. Id., slip op. at 39.
The trial court found the concern unwarranted, reasoning OOR mistakenly referred
to a requirement to include a fee estimate within the five-day notice. The trial
court stated “it was apparent that … OOR intended to refer not to the five-day
response period but to the full response period as enlarged by thirty days at the
option of the [b]orough.” Id., slip op. at 40. As OOR explained in its amicus brief
that it consistently construes Section 902(b) to require a fee estimate within the
five-day response period, it appears OOR attempted to set such precedent.




                                        25
                 This Court consistently requires agencies to raise and defend all
applicable exemptions before the initial fact-finder. Levy III; see, e.g., Dep’t of
Envtl. Prot. v. Legere, 50 A.3d 260, 267 (Pa. Cmwlth. 2012) (“It should be noted
that had [the agency] undertaken the search that it was required to perform to meet
its obligations under the RTKL, it would have located the required records and
would have been able to discern any applicable exemptions related to the specific
records located at that time.”). Therefore, the Department had an obligation to
raise and defend its exemptions before OOR, or lose that opportunity.


                 Indeed, the Department had a “full and fair opportunity” to review the
records from May 7, 2014 (the date the request was made) until June 25, 2014
when it was required to submit argument and evidence to OOR.11 Id. The lack of
review falls squarely on the Department. We thus conclude OOR did not err when
it denied the Department further opportunity to review responsive records in order
to determine whether the requested records are exempt.


                 PSU also contends that it lacked a meaningful opportunity to
demonstrate the non-public nature of potentially responsive records.12 Although

       11
            We note the Department did not object to OOR’s deadline as an abuse of discretion.
       12
           PSU also contends OOR erred in not considering the evidence it submitted with its
reconsideration petition. Such evidence was not submitted before OOR issued its determination.
Section 1101(c) requires a direct interest participant to submit materials prior to issuance of a
final determination. State Emps. Ret. Sys. v. Pennsylvanians for Union Reform, 113 A.3d 9 (Pa.
Cmwlth. 2015). Further, OOR may not accept evidence after a determination is issued. Fort
Cherry Sch. Dist v. Coppola, 37 A.3d 1259, 1262 (Pa. Cmwlth. 2012); Dep’t of Conservation &
Natural Res. v. Vitali (Pa. Cmwlth., No. 1013 C.D. 2014, filed July 7, 2015) (unreported)
(reasoning OOR did not err in disregarding evidence submitted with reconsideration petition).
Accordingly, OOR properly did not consider PSU’s evidence. Vitali.



                                                26
PSU was permitted to participate in the appeal to OOR, the Department failed to
further process or to identify the records at issue before the appeals officer’s
decision. Importantly, Requester’s request was made on the Department, not PSU,
and PSU was not in a position to know which records the Department deemed
responsive. Only after the Department identified the records it intended to produce
could PSU be expected to offer evidence supporting its privileges. PSU’s privileges
should not be placed at risk by the Department’s failure. Vitali.


                            C. Substantive Exemptions
             The Department and PSU also contend that the Department provided
sufficient evidence to OOR regarding the nature of the records to meet its burden
to demonstrate the applicability of attorney-client privilege, work product doctrine
and statutory exemptions under the RTKL. Notably, at the time OOR issued its
Final Determination, the Department had not finished processing the Request.


             Under the RTKL, records in possession of a Commonwealth agency
are presumed to be public unless they are: (1) exempt under Section 708 of the
RTKL; (2) “protected by a privilege;” or, (3) exempt under any other Federal or
State law or regulation or judicial order or decree. Section 305 of the RTKL, 65
P.S. §67.305 (emphasis added). Section 102 of the RTKL defines “privilege” as:

             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
             incorporating the laws of this Commonwealth.

65 P.S. §67.102 (emphasis added). The burden of proving a privilege rests on the
party asserting it. Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth.


                                          27
2013). Similarly, pursuant to Section 708(a) of the RTKL, an agency bears the
burden of proving the application of any of the exceptions within Section 708(b)
by a preponderance of the evidence. See 65 P.S. §67.708(a).


                1. Attorney-Client and Work-Product Privileges
             In the RTKL context, we hold a party asserting the attorney-client
privilege must establish the following four elements:

             (1) that the asserted holder of the privilege is or sought to
             become a client; (2) that the person to whom the
             communication was made is a member of the bar of a
             court, or his or her subordinate; (3) that the
             communication relates to a fact of which the attorney was
             informed by the client, without the presence of strangers,
             for the purpose of securing an opinion of law, legal
             services or assistance in a legal matter; and (4) that the
             claimed privilege has not been waived by the client.

Bagwell (2015), 114 A.3d at 1124; Chambersburg Area Sch. Dist. v. Dorsey, 97
A.3d 1281, 1289 (Pa. Cmwlth. 2014). The “attorney-client privilege protects from
disclosure only those communications made by a client to his or her attorney which
are confidential and made in connection with the providing of legal services or
advice.” Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1264 (Pa. Super.
2007), aff’d by an equally divided court, 992 A.2d 65 (Pa. 2010) (emphasis
deleted). Further, the privilege “protect[s] confidential client-to-attorney [and]
attorney-to-client communications made for the purpose of obtaining or providing
professional legal advice.” Gillard, 15 A.3d at 59.


             Also in the RTKL context, we hold the work-product privilege “only
applies to ‘the mental impressions, theories, notes, strategies, research and the like


                                          28
created by an attorney in the course of his or her professional duties ....’” Pa. Pub.
Util. Comm’n v. Seder, 106 A.3d 193, 201 (Pa. Cmwlth. 2014) (emphasis added).
“Neither privilege protects mere facts.” Bagwell (2015), 114 A.3d at 1124. “The
underlying purpose of the work[-]product doctrine is to guard the mental processes
of an attorney, providing a privileged area within which he can analyze and
prepare his client's case.” Bagwell v. Dep’t of Educ., 103 A.3d 409, 415-16 (Pa.
Cmwlth. 2014), appeal denied, 117 A.3d 1282 (Pa. 2015) (quoting Commonwealth
v. Sandusky, 70 A.3d 886, 898 (Pa. Super. 2013)).


             Despite admitting that it had not yet reviewed the records “for the
applicability of exemptions and redaction as appropriate[,]” the Department
submitted the Tomalis Affidavit in support of its privilege claims. With respect to
attorney-client privilege, the Tomalis Affidavit sets forth the attorney-client
relationship and states:

             10. In my capacity as Secretary of Education and as a
             PSU Board member, and during the time that is the
             subject of this request, I communicated with attorneys in
             OGC [(the Office of General Counsel)].

             11. In their capacities as members of the Governor’s
             cabinet and executive offices and as PSU Board
             members, and during the time that is the subject of this
             request, members of the Governor’s cabinet and
             executive offices communicated with attorneys in OGC.
             12. The records responsive to [Requester’s] request that
             are in [the Department’s] possession include
             communications made only between myself, members of
             the Governor’s cabinet and executive offices, and
             attorneys in OGC and contain the mental impressions
             and/or opinions of those attorneys pertaining to issues
             presented to them for the purpose of seeking legal
             services or assistance in legal matters relating to my
             activities as Secretary of Education and as a PSU Board

                                         29
            member, and members of the Governor’s cabinet and
            executive offices, and which were not for the purpose of
            committing a crime or tort.

            13. The Commonwealth of Pennsylvania, [the
            Department] and I claim and have not waived the
            attorney-client privilege and attorney work-product
            privilege for records and information in the records that
            reflect those communications between myself, members
            of the Governor’s cabinet and executive offices, and
            attorneys in OGC, and that contain the mental
            impressions and/or opinions of those attorneys pertaining
            to issues presented to them for the purpose of seeking
            legal services or assistance in legal matters relating to my
            activities as Secretary of Education and as a PSU Board
            member and the activities of the members of the
            Governor’s cabinet and executive offices.

R.R. at 38a-39a.

            As to the work product doctrine, the Tomalis Affidavit states:


            16. The records responsive to [Requester’s] request that
            are      in    [Department’s]        possession    include
            communications made only between [legal counsel
            retained by PSU to represent PSU and the Board], PSU
            executive staff and Board members, and myself, and
            contain the mental impressions and/or opinions of those
            attorneys pertaining to issues presented to them for the
            purpose of seeking legal services or assistance in legal
            matters relating to the activities of PSU, and which were
            not for the purpose of committing a crime or tort.

R.R. at 39a. Former Secretary also attested he did not waive the privilege, and he
was “informed PSU has claimed and has not waived the attorney-client privilege
and attorney work-product privilege ….” Id.




                                        30
             Notably, the Department did not submit a privilege log to OOR or to
this Court identifying the relevant documents. As a result, neither OOR nor this
Court had sufficient information to evaluate the exemptions.           Office of the
Governor v. Davis, 122 A.3d 1185 (Pa. Cmwlth. 2015) (en banc). This may be
because the Department had not yet “review[ed] the records for applicability of
exemptions and redaction as appropriate.” R.R. at 28a. We find it perplexing that
the Department claims unspecified records are privileged while simultaneously
admitting it did not review the records. The Tomalis Affidavit is conclusory and
vague. It does not describe the records with any particularity as to how the
privilege supports non-disclosure or redaction of the 644 pages of allegedly
responsive records. For these reasons, we conclude the Department failed to
establish the responsive records fall within the attorney-client privilege or the work
product doctrine.


                               2. RTKL Exceptions
             The Department also asserted the predecisional deliberative exception
in Section 708(b)(10)(i) of the RTKL, 65 P.S. §67.708(b)(10)(i), and the
noncriminal investigative exception in Section 708(b)(17) of the RTKL, 65 P.S.
§67.708(b)(17). The Department submitted only the Tomalis Affidavit to support
its assertion of the predecisional deliberative exception. That exception protects:

             A record that reflects:

              (A) The 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, including predecisional
             deliberations relating to a budget recommendation,


                                         31
             legislative proposal, legislative amendment, contemplated
             or proposed policy or course of action or any research,
             memos or other documents used in the predecisional
             deliberations.
65 P.S. §67.708(b)(10)(i)(A) (emphasis added).


             To establish this exception, an agency must show: (1) the information
is internal to the agency; (2) the information is deliberative in character; and, (3)
the information is prior to a related decision, and thus “predecisional.” Carey v.
Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013).            “Only information that
constitutes ‘confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice’ is protected as ‘deliberative.’” Id. at 378 (quoting In
re Interbranch Comm’n on Juvenile Justice, 988 A.2d 1269, 1277-78 (Pa. 2010)
(quotation omitted)).    Records satisfy the “internal” element when they are
maintained internal to one agency or among governmental agencies. Id.


             “[T]o demonstrate that the withheld documents are deliberative in
character, an agency must ‘submit evidence of specific facts showing how the
information relates to deliberation of a particular decision.’” McGowan, 103 A.3d
at 383 (quoting Carey, 61 A.3d at 379). Affidavits that are conclusory or merely
parrot the exemption do not suffice. Office of the Governor v. Scolforo, 65 A.3d
1095 (Pa. Cmwlth. 2013) (en banc).


             In support of this exception, the Tomalis Affidavit states the records
include communications that are internal between agencies under the Governor’s
jurisdiction, and internal to PSU and executive agencies with respect to the Former
Secretary’s role as an ex-officio Board member. As to content, it provides:


                                         32
            21. The communications and consultations were made
            for the purpose of discussions and deliberations on
            decisions to be made by me and other members of the
            Governor’s cabinet and executive offices, and prior to the
            decisions being made.
            22. The decisions relate to actions to be taken by me,
            [Department], or the members of the Governor’s cabinet
            and executive offices on budget recommendations,
            legislative proposals, legislative amendments, or
            contemplated or proposed policies or courses of action.
            23. The records or information in the records reflect the
            internal, predecisional deliberations by me and between
            me and members of the Governor’s cabinet and executive
            offices and include research, memos or other documents
            used in the predecisional deliberations.
                                       ****
            26. The communications and consultations were made
            for the purpose of discussions and deliberations on
            decisions to be made by me and other members of the
            Governor’s cabinet and executive offices that served as
            statutory ex-officio members of the PSU Board, and prior
            to the decisions being made.
            27. The decisions relate to actions to be taken by me or
            the members of the Governor’s cabinet and executive
            offices that served as statutory ex-officio members of the
            PSU Board on budget recommendations or contemplated
            or proposed policies or courses of action relating to PSU.
            28. The records or information in the records reflect the
            internal, predecisional deliberations by me and between
            me and members of the Governor’s cabinet and executive
            offices, including those that served as statutory ex-officio
            members of the PSU Board, and include research, memos
            or other documents used in the predecisional deliberations.

R.R. at 39a-40a.




                                        33
             From our review, the affidavit contains general statements parroting
the elements of the exception. As the Department has not even “review[ed] the
records for applicability of exemptions[,]” R.R. at 28a, it did not submit sufficient
facts to show the deliberative character of the records. As all three elements are
required to prove this exception, Carey, the Department did not meet its burden.


             As to the noncriminal investigative exception, OOR determined the
Department did not meet its burden of proving the exception as required by Section
708(a) of the RTKL. We agree.


             Section 708(b)(17) protects records relating to a noncriminal
investigation. Significantly, the exception does not require the investigation to be
conducted by the agency responding to the request. However, the agency asserting
the exception must show that a searching inquiry or detailed examination was
undertaken as part of an agency’s official duties. Johnson v. Pa. Convention Ctr.
Auth., 49 A.3d 920 (Pa. Cmwlth. 2012). Stating that an investigation occurred, as
the Department does here, does not suffice. Heavens. As the Department failed to
submit any evidence to support this exception, OOR did not err in determining it
did not meet its burden of proof.




                                    D. Bifurcation
             Both the Department and PSU argue OOR should have bifurcated the
appeal to first address whether the Department properly demanded prepayment.
After determining the prepayment issue, they contend OOR then should have



                                         34
permitted the Department and PSU an opportunity to develop a record to support
substantive exemptions. We reject this contention.


            First, the timing for the appeals process does not afford an appeals
officer the luxury of a two-part procedure. The statutory deadline for issuing a
final determination allows 30 days unless a requester agrees to a further extension.
Section 1101(b)(1), 65 P.S. §67.1101(b)(1). This Court explained:

            [T]he statutory procedures in the RTKL are ‘designed to
            dispose of most disputes in an efficient and timely
            fashion.’ Bowling [v. Office of Open Records, 75 A.3d
            453, 474 (Pa. 2013).] … Section 1101(b)(1) of the RTKL
            requires an appeals officer to issue the final determination
            within thirty days of receipt of the appeal, ‘[u]nless the
            requester agrees otherwise.’ Section 1101(b)(2) of the
            RTKL provides that failure of the appeals officer to issue
            a timely final determination is treated as a deemed denial.
            The fact that the General Assembly chose to include the
            deemed denial language in the statute bolsters our
            conclusion that the statutory deadline imposed on OOR to
            issue a final determination is essential to the statutory
            purpose of the RTKL.

SERS v. PFUR, 113 A.3d at 20. Moreover, it is well-established that:

            [A]n agency must raise all its challenges before the fact-
            finder closes the record. This will allow efficient receipt
            of evidence from which facts may be found to resolve the
            challenges. In the ordinary course of RTKL proceedings,
            this will occur at the appeals officer stage, and a
            reviewing court will defer to the findings of the appeals
            officer.

Levy v. Senate of Pa. (Levy III), 94 A.3d 436, 441-42 (Pa. Cmwlth. 2014).




                                        35
              In addition, there is no statutory authority for a two-step process.
Vitali. This Court recently rejected an agency’s challenge to OOR’s refusal to
bifurcate proceedings to resolve an issue of insufficient specificity separate from
the merits. We rejected bifurcation as infeasible given the timelines under the
RTKL. This Court also reasoned an agency had ample opportunity to present
evidence of substantive exemptions at the appeals officer level. When the agency
did not submit evidence of exemptions, and rested on its specificity argument, this
Court precluded the agency from submitting evidence of any exemptions on
remand. Id.


              In sum, given the strict timeframes set forth in the RTKL and the
legislative intent to foster expeditious resolution of RTKL disputes, we conclude
OOR properly refused to bifurcate its proceedings. Vitali.


                                 E. Attorney Fees
              Lastly, Requester seeks attorney fees pursuant to Section 1304(a) of
the RTKL, 65 P.S. §67.1304(a). That section allows a court to award attorney fees
if the court reverses a final determination or grants access when either: (1) an
agency acted with willful or wanton disregard of the right to access in bad faith; or,
(2) an agency’s denial was not based on a reasonable interpretation of law. Id.


              Requester contends the Department acted in bad faith when it issued
an “interim” as opposed to a final response on the stated response date. He
contends our decision in Drack placed the Department on notice that a final
response must contain applicable exemptions, and must be issued within 30 days.



                                         36
              Although the Department was on notice that Drack prohibited
agencies from reserving exemptions to an unspecified date in the future, this case
presents novel facts. Further, the RTKL’s lack of explicit timeframes for an
agency to demand prepayment under Section 1307(h) supports the Department’s
contention that it did not act unreasonably or in bad faith in demanding prepayment
outside the five-day notice.       Also, because the Department’s assertion of the
privileges was not based on an unreasonable interpretation of law, we decline to
award fees against the Department.


              As we held in another RTKL appeal involving identical parties,
“evidence of bad faith” by the Department or by PSU is necessary to impose fees
on that basis. Bagwell, 103 A.3d at 421. There is no such evidence here. Id.;
Dorsey.


              Further, we affirm OOR as to its determination that the Department
did not meet its burden of proving the substantive exemptions. However, we
remand to allow PSU a meaningful opportunity to establish the attorney
privileges.13 Thus, we neither reverse OOR nor grant access in this opinion, one of
which is a precondition to a fee award under Section 1304(a).


              Additionally, Requester asks this Court to award attorney fees against
PSU for pursuing a direct appeal and intervening when it did not submit evidence

       13
          PSU did not brief any exemptions other than the attorney-client privilege or work-
product doctrine. Therefore, only these privilege claims were preserved.



                                            37
to OOR before the record closed. Requester contends PSU should be sanctioned
for filing a frivolous appeal under Section 1304(b) of the RTKL, 65 P.S.
§67.1304(b). As previously discussed, the Department’s failure to identify the
responsive documents hampered PSU’s ability to provide evidence to support
exemptions. Accordingly, we do not deem PSU’s appeal or intervention frivolous.
For these reasons, we decline to award attorney fees.


                                  III. Conclusion
            Based on the foregoing, we affirm in part, and vacate and remand in
part as to PSU. Specifically, we affirm OOR’s determination that the Department
did not establish any exemptions. However, disclosure shall be held in abeyance
pending remand to OOR to allow PSU to establish the application of the attorney
privileges. In addition, the Department is directed to identify and produce to PSU
all responsive documents within five days of this order.



                                      ROBERT SIMPSON, Judge

Judges Leadbetter and Cohn Jubelirer did not participate in the decision in this
case.




                                        38
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Department of             :
Education,                             :
                       Petitioner      :
                                       :
              v.                       :   No. 1617 C.D. 2014
                                       :
Ryan Bagwell,                          :
                        Respondent     :

Pennsylvania State University,         :
                        Petitioner     :
                                       :
              v.                       :    No. 1729 C.D. 2014
                                       :
Ryan Bagwell,                          :
                        Respondent     :

                                     ORDER

              AND NOW, this 29th day of January, 2016, the Office of Open
Records’ (OOR) August 13, 2014 Final Determination is affirmed in part, and
vacated and remanded in part. OOR’s final determination as to the Department of
Education (Department)’s asserted exemptions is affirmed.       However, OOR’s
order to disclose to Ryan Bagwell (Requester) all responsive documents is held in
abeyance and subject to the following limitation to afford the Pennsylvania State
University (PSU) a meaningful opportunity to protect the records. This matter is
remanded to the OOR. Within five business days of the date of this Order, the
Department shall identify and produce to PSU complete copies of all responsive
documents. Thereafter, OOR shall afford PSU a reasonable opportunity to review
the identified documents and to present evidence concerning PSU’s alleged
privileges.
            OOR shall issue a determination regarding the validity of PSU’s
asserted privileges and exemptions within 180 days of the date of this order. Those
documents which OOR determines are protected by privilege shall not be disclosed
by the Department to Requester. PSU may appeal any directed disclosure in
accordance with the RTKL.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
