           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Department of Labor and Industry,                    :
                                                     :
                        Petitioner                   :
                                                     :
                 v.                                  : No. 525 C.D. 2015
                                                     : Submitted: November 6, 2015
Donna Tabor,                                         :
                                                     :
                        Respondent                   :


BEFORE:          HONORABLE DAN PELLEGRINI, President Judge1
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                                FILED: March 31, 2016

                 The Department of Labor and Industry (Department) petitions for
review of a final determination of the Office of Open Records (OOR) granting in
part and denying in part Donna Tabor’s (Requester) requests under the Right to
Know Law2 (RTKL) for records related to communications of an identified
employee of the Department. For the reasons that follow, we reverse the rulings in
the final determination that have been appealed to this Court.
                 On October 20, 2014, Requester submitted two RTKL requests to the
Department seeking (i) the “itemized cellphone bill for [an identified phone


1
 This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pelligrini assumed the status of senior judge.
2
    Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
number] from January 1, 2014 to present or most recent” and (ii) “email records
for [an identified email address] from January 1, 2014 to present.” (OOR Final
Determination at 2; Certified Record (R.) Item 1.)3 After informing Requester that
it required an additional 30 days to respond to the requests, on December 1, 2014
the Department denied both requests, stating that the requested records related to
non-criminal investigations and were exempt from disclosure under Section
708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17). (R. Item 1, Dec. 1, 2014
Department Denial of Requests; R. Item 10, Oct. 27, 2014 Department Letter.)
Requester filed a timely appeal of the denial of the requests to OOR, which
consolidated the appeals under one docket number. (R. Item 1, Appeal; R. Item 5,
Jan. 12, 2015 OOR Letter.)
              In support of its denial of the requests, the Department submitted an
affidavit from Jennifer Kreider, Labor Relations Coordinator for the Department.
(R. Item 4.)     In the affidavit, Kreider explained that the records sought by
Requester were those of an employee in the Department’s Internal Audits Division
whose responsibilities included conducting investigations of unemployment
compensation fraud and misuse. (Id. ¶3.) Kreider stated that the Department had
located 225 pages of responsive documents which would be provided to Requester.
(Id. ¶11.) However, Kreider stated that the remainder of the records was being
withheld by the Department on the grounds that the records (i) relate to non-
criminal investigations and are protected from disclosure under Section 708(b)(17);
(ii) contain information that could be used to identify an unemployment
compensation claimant, employer or employee, which has been rendered


3
  Only the first request seeking an itemized cell phone bill appears in the certified record.
However, neither party contests the accuracy of the requests as stated in OOR’s final
determination.
                                             2
confidential by Department regulations, see 34 Pa. Code § 61.25; (iii) contain
information related to Department employee performance issues; (iv) contain
personal telephone numbers and email addresses that are exempt from access; (v)
contain information related to employee medical leave requests; (vi) contain
communications between Department personnel and Department legal counsel that
are protected by the attorney-client privilege; and (vii) contain information and
notes that solely concern the identified employee’s personal affairs and do not
reflect the business or activities of the Department. (R. Item 4, Kreider Affidavit
¶¶4-10.)
            On January 12, 2015, an Appeals Officer at OOR informed the
Department by letter that it could not meet its burden of proof in demonstrating
that records are exempt from disclosure under the RTKL and therefore requested
that the Department provide a privilege log to aid OOR in determining whether the
Department had satisfied its burden. (R. Item 6.) Counsel for the Department
produced a privilege log on January 23, 2015, in which it identified the five email
strings which were being withheld on the grounds that they contained privileged
attorney-client communications, as well as more detailed information regarding the
other documents being withheld, including 208 pages of the identified employee’s
non-work-related emails that were withheld under Section 708(b)(12) of the
RTKL, 65 P.S. § 67.708(b)(12), relating to notes or working papers prepared for an
employee’s personal use. (R. Item 8.) Following receipt of the privilege log, OOR
ordered the Department to provide six pages of emails related to medical leave
requests for in camera review. (R. Item 11.)




                                        3
               The Appeals Officer issued the final determination on March 9, 2015,
granting in part and denying in part Requester’s appeal.4 The Appeals Officer
concluded that the Department had met its burden in showing that various of the
requested records were exempt because they related to non-criminal investigations
of fraud and misuse of unemployment compensation and that personal phone
numbers and email addresses could be redacted from any record that was required
to be produced. (OOR Final Determination at 5-7, 11.) The Appeals Officer
further determined that the documents relating to medical leave requests submitted
for in camera review were not responsive to the requests because they were outside
the identified time frame in the requests. (Id. at 11-12.) However, the Appeals
Officer rejected the Department’s assertion of the attorney-client privilege over
five email strings and concluded that 208 pages of emails relating to the identified
employee’s personal affairs were not exempt under either Section 708(b)(12) or on
the basis that they are not “records” subject to disclosure under the RTKL. (Id. at
7-14.)
               The Department filed the instant petition for review challenging
OOR’s determinations that the Department failed to meet its burden in showing
that the attorney-client privilege did not protect documents from disclosure and
that the identified employee’s personal, non-work related emails were not records
under the RTKL.5 Requester did not appeal the determination by OOR that the
Department was exempt from providing the requested records that relate to non-


4
  The Appeals Officer also dismissed as moot in part the Department’s appeal because the
Department had agreed to provide 225 pages of responsive records after its initial denial. (OOR
Final Determination at 5.)
5
  Our scope of review under the RTKL is plenary, and our standard of review is de novo.
Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). We may substitute our own
findings of fact for that of the agency or rely upon the record created below. Id. at 468-70, 477.
                                                4
criminal investigations or are rendered confidential by Department regulations and
that the Department could redact personal email and telephone numbers from
records that were required to be produced; therefore, these issues are not before
this Court on appeal. Requester also did not file an appellate brief in this matter,
and this Court accordingly entered an order on October 30, 2015 precluding
Requester from participating in this appeal.
               We first address the issue of whether the Department was justified in
withholding the five email strings identified in the privilege log on the basis that
they are protected from disclosure by the attorney-client privilege. Under the
RTKL, records in the possession of an agency are presumed to be public unless
they are (i) shown to fall within one of the exemptions in Section 708 of the
RTKL, (ii) protected by a privilege, or (iii) exempt under another state or federal
law or regulation or a judicial order or decree. Sections 102 and 305(a) of the
RTKL, 65 P.S. §§ 67.102, 67.305(a); Pennsylvania State Police v. McGill, 83 A.3d
476, 479 (Pa. Cmwlth. 2014) (en banc). The attorney-client privilege, the privilege
at issue in this case,6 has been codified in Section 5928 of the Judicial Code and
requires that “counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled to
disclose the same, unless in either case this privilege is waived upon the trial by the
client.” 42 Pa. C.S. § 5928; see also 42 Pa. C.S. § 5916 (pertaining to criminal
matters).    The privilege protects both attorney-to-client and client-to-attorney
communications and extends to the agency setting where attorneys are working in
their professional capacity. Gillard v. AIG Insurance Co., 15 A.3d 44, 59 (Pa.


6
  In addition to the attorney-client privilege, the RTKL also recognizes the attorney work product
doctrine, the doctor-patient privilege, the speech-and-debate privilege and any “other privilege
recognized by a court interpreting the laws of this Commonwealth.” 65 P.S. § 67.102.
                                                5
2011); Heavens v. Pennsylvania Department of Environmental Protection, 65 A.3d
1069, 1076 (Pa. Cmwlth. 2013).
                  Where the agency asserts that a requested record is exempt from
disclosure on the basis of privilege, the agency has the burden of proving that the
privilege applies by a preponderance of the evidence. McGowan v. Pennsylvania
Department of Environmental Protection, 103 A.3d 374, 380 (Pa. Cmwlth. 2014);
Heavens, 65 A.3d at 1074.                 “Testimonial affidavits found to be relevant and
credible may provide sufficient evidence in support of a claimed exemption.”
Heavens, 65 A.3d at 1073. However, an affidavit that merely tracks the language
of the exemption is insufficient; instead, the affidavit must be detailed, non-
conclusory and submitted in good faith. McGowan, 103 A.3d at 381; Office of the
Governor v. Scolforo, 65 A.3d 1095, 1103-1104 (Pa. Cmwlth. 2013) (en banc).
“In addition, a privilege log, which typically lists the date, record type, author,
recipients, and a description of the withheld record, can serve as sufficient
evidence to establish an exemption, especially where the information in the log is
bolstered with averments in an affidavit.” McGowan, 103 A.3d at 381; see also
Heavens, 65 A.3d at 1075-77.
                  Here, OOR concluded that the Kreider affidavit submitted by the
Department was insufficient to substantiate the assertion of the privilege because
the affidavit “merely parrots the elements of the attorney-client privilege.”7 (OOR

7
    Kreider attested in the affidavit that:
          Approximately 10 pages of records revealed communications between
          Department personnel and their legal counsel, wherein such personnel sought and
          received legal advice and representation. The records did indicate an intention to
          preserve, and not waive, attorney client privilege as to such communications. As
          such, those records are exempt as privileged and confidential attorney-client
          communications.
(R. Item 4, Kreider Affidavit ¶9.)
                                                  6
Final Determination at 13.) While the Appeals Officer had requested a privilege
log in order to determine whether the Department had satisfied the elements of the
privilege (R. Item 6), and the Department produced a privilege log which specifies
the date, sender and recipients and subject matter of each allegedly privileged
email (R. Item 8, Privilege Log ¶4), the Appeals Officer did not address in the final
determination whether the Department’s privilege log supports the assertion of
privilege. The Department argues that the affidavit and privilege log together are
sufficient to find that the five emails are protected by the attorney-client privilege
and that the Appeals Officer erred by ignoring the privilege log and not accepting
the Department’s offer to submit the documents for in camera review.             The
Department further contends that the evidence necessary to support an assertion of
the attorney-client privilege necessarily must be circumspect in order to not reveal
the contents of the privileged communications and therefore the requirement that
affidavits contain detailed information should be relaxed as it pertains to the claim
of privileges.
             Based upon our review of the record, we agree with the Department
that OOR erred by ordering the Department to produce the five purportedly
privileged emails but for different reasons than those argued by the Department in
this appeal. As the Appeals Officer observed in the final determination, Requester
sought email records for the period from “January 1, 2014 to present” and the date
of the request was October 20, 2014; the Appeals Officer therefore ruled that the
documents pertaining to medical leave requests, which had been submitted for in
camera review and which postdated the request, were not responsive to the
request. (OOR Final Determination at 12.) The privilege log states that each of
the five emails was dated November 6, 2014, more than two weeks after the date
of the request of October 20, 2014. Accordingly, we conclude that like the medical
                                          7
leave request documents, the five emails claimed to be protected by the attorney-
client privilege are not from within the time period of records sought by Requester
and therefore are not responsive to the requests.8
              The Department also challenges the determination by OOR that 208
pages of emails related to the identified employee’s personal affairs may not be
withheld from disclosure. The Department asserted two grounds for withholding
these documents.        First, Kreider stated in her affidavit that the requested
documents do not document a “transaction or activity” of the Department. (R.
Item 4, Kreider Affidavit ¶10); see also 65 P.S. §§ 67.102 (defining a “record” as
“[i]nformation, regardless of physical form or characteristics, that documents a
transaction or activity of an agency and that is created, received or retained
pursuant to law or in connection with a transaction, business or activity of the
agency”). The Appeals Officer rejected this argument in the final determination,
concluding that the Kreider affidavit was conclusory on this issue and that the
Department had therefore not met its burden of proof in establishing that these
documents are not public records subject to disclosure under the RTKL. (OOR
Final Determination at 9-11.) Second, the Department stated in the privilege log
that the 208 pages of emails include the identified employee’s “personal notes,
such as email ‘spam,’ advertisements not related to Commonwealth activities,
communications with family members or friends, bills/invoices which do not relate
to Commonwealth activities, and personal invitations” and that these documents
are exempt from access pursuant to Section 708(b)(12). (R. Item 8, Privilege Log
¶2.) The Appeals Officer found that the documents did not fall within the Section
708(b)(12) exemption because the privilege log did not show that they were

8
  Though the Department did not address the issue of the responsive time period of the requests
in its appeal, OOR raised the issue sua sponte in the final determination.
                                              8
documents used by the identified employee to carry out his public responsibilities.
(OOR Final Determination at 7-9.)
             Upon review, we agree with OOR that the 208 pages of emails are not
protected by Section 708(b)(12). Section 708(b)(12) provides that “[n]otes and
working papers prepared by or for a public official or agency employee used solely
for that official’s or employee’s own personal use, including telephone message
slips, routing slips and other materials that do not have an official purpose” are
exempt from access. 65 P.S. § 67.708(b)(12). As we have made clear, the use of
the term “personal” in this provision “does not mean that it has to involve a public
official’s personal affairs,” but instead that “it covers those documents necessary
for that official that are ‘personal’ to that official in carrying out his public
responsibilities.” City of Philadelphia v. Philadelphia Inquirer, 52 A.3d 456, 461
(Pa. Cmwlth. 2012) (en banc); see also Glunk v. Department of State, 102 A.3d
605, 614 (Pa. Cmwlth. 2014). The Department here unambiguously asserted that
the documents are not related to the identified employee’s public work
responsibilities and that they instead concern only his personal affairs.
Accordingly, the 208 pages of emails cannot fall within the Section 708(b)(12)
exemption.
             However, we conclude that OOR erred in finding that the documents
are public records subject to production under the RTKL. As this Court has
explained, “[i]n making a determination that the information sought is a ‘public
record,’ a requestor must establish that the information sought falls within the
definition of a ‘record’ of the agency as defined in Section 102 of the RTKL.”
Pennsylvania Office of Attorney General v. Philadelphia Inquirer, 127 A.3d 57, 60
(Pa. Cmwlth. 2015) (en banc); see also Philadelphia Public School Notebook v.
School District of Philadelphia, 49 A.3d 445, 450 (Pa. Cmwlth. 2012). Section
                                         9
102 of the RTKL defines a “record” as “[i]nformation, regardless of physical form
or characteristics, that documents a transaction or activity of an agency and that is
created, received or retained pursuant to law or in connection with a transaction,
business or activity of the agency.” 65 P.S. § 67.102. This definition requires a
consideration of two factors: first, the information must “document a transaction
or activity of an agency,” and, second, it must have been “created, received or
retained” in connection with the activity of an agency. Barkleyville Borough v.
Stearns, 35 A.3d 91, 95 (Pa. Cmwlth. 2012); Office of Governor v. Bari, 20 A.3d
634, 640 (Pa. Cmwlth. 2011).
             “Only ‘records’ that meet the definition in Section 102 that are in an
agency’s possession are presumed public.”         Meguerian v. Office of Attorney
General, 86 A.3d 924, 931 (Pa. Cmwlth. 2013); see also 65 P.S. § 67.102 (defining
a “public record” as “a record...of a Commonwealth or local agency” that is not
exempt under Section 708, protected from disclosure by a federal or state law or
regulation or protected by a privilege); 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 burden of proof on an agency to show that information is
exempt from public access only applies to a “record” of that agency. Cf. 65 P.S. §
67.708(a)(1) (“The burden of proving that a record of a Commonwealth agency or
local agency is exempt from public access shall be on the Commonwealth agency
or local agency receiving a request by a preponderance of the evidence.”)
(emphasis added).
             In this matter, the Kreider affidavit stated that the requests for all of
the identified employee’s emails from January 1, 2014 to present would include
“information and notes which related only to the employee’s personal matters,
such as communications that did not document a transaction or activity of the
                                         10
Department’s business.” (R. Item 4, Kreider Affidavit ¶10.) This statement that
the emails at issue do not relate to a transaction or activity of the Department was
sufficient to place the burden on Requester to show that the documents requested
were in fact public records that were subject to disclosure under the RTKL.9
However, Requester has not participated in any meaningful way in this matter
aside from making the initial requests and filing an appeal of the Department’s
denial of the requests in which she stated that the records relate to the non-criminal
investigation exemption of Section 708(b)(17).
              The fact that the emails of the identified employee were sent or
received from a public email address does not change our analysis. To determine
whether a document is a record within the meaning of the RTKL, a court must look
to the subject matter of the document and whether it relates to a “transaction or
activity of an agency”; the fact that a document is sent or received using an agency
email address, stored on an agency computer or located in an agency file is
irrelevant. Philadelphia Inquirer, 127 A.3d at 61-62, 64 (holding that emails
containing pornographic material sent to or from agency email addresses did not
“document a transaction or activity” of that agency and thus were not records
under the RTKL); Meguerian, 86 A.3d at 930-931 (holding that emails sent

9
  The Appeals Officer based her decision that the Department had failed to satisfy its burden of
proof in showing that the emails were not public records on the fact that the Kreider affidavit
was conclusory. However, this holding was in error. The requirement that an agency’s non-
disclosure of a requested document be supported by detailed, non-conclusory affidavit applies to
an assertion of a Section 708(b) exemption, a privilege or an exemption under a state or federal
law or regulation; this requirement does not apply to the threshold determination of whether a
document is a record subject to the RTKL. Cf. 65 P.S. § 67.305(a); McGowan, 103 A.3d at 381
(holding that affidavits must be detailed, non-conclusory and submitted in good faith to provide
sufficient evidence to support a finding that a record falls within an enumerated exemption of
Section 708(b) or contains privileged material); Scolforo, 65 A.3d at 1103-04 (holding that a
generic and non-specific affidavit is insufficient by itself for OOR and the courts to determine
whether a record falls under an enumerated exemption).
                                              11
through an agency’s email domain that do not pertain to that agency’s business but
instead to the employee’s prior agency employer are not records under the RTKL);
compare Mollick v. Township of Worcester, 32 A.3d 859, 872-76 (Pa. Cmwlth.
2011) (holding that emails sent between local agency employees sent from
personal addresses on personal computers and on personal time were nevertheless
records under the RTKL because they documented a transaction or activity of the
agency). Though the 208 pages of emails were sent or received on the identified
employee’s agency email address, there was no evidence before OOR that the
emails pertain in any way to a transaction or activity of the Department and
therefore these emails were not public records subject to disclosure under the
RTKL.
              Accordingly, we reverse the determination by OOR that required
disclosure of the five emails that contain allegedly privileged communications and
the 208 pages of emails that do not document a transaction or activity of the
Department.


                                     ____________________________________
                                     JAMES GARDNER COLINS, Senior Judge


Judge McCullough concurs in the result only.




                                       12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Department of Labor and Industry,         :
                                          :
                  Petitioner              :
                                          :
            v.                            : No. 525 C.D. 2015
                                          :
Donna Tabor,                              :
                                          :
                  Respondent              :



                                    ORDER


            AND NOW, this 31st day of March, 2016, the final determination of
the Office of Open Records in the above-captioned matter is REVERSED insofar
as it ordered the Department of Labor and Industry to produce any records
responsive to the requests submitted by Respondent and AFFIRMED in all other
respects.


                                     ____________________________________
                                     JAMES GARDNER COLINS, Senior Judge
