            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lindsay P. Shuler,                           :
                       Petitioner            :
                                             :
               v.                            : No. 237 C.D. 2016
                                             : SUBMITTED: September 2, 2016
Pennsylvania Department of                   :
Corrections,                                 :
                 Respondent                  :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                             FILED: November 1, 2016

               Lindsay P. Shuler (Requester), an inmate housed in SCI-Pittsburgh,
petitions for review from the Office of Open Records’ (OOR) final determination
that upheld the Department of Corrections’ (DOC) response as to records requested
under the Right-to-Know Law (RTKL).1 Requester sought policies regarding access
to medical records. OOR concluded the attorney work-product privilege protected
the record DOC identified. Requester argues OOR erred by declining to review the
record in camera. He also asserts DOC did not establish the nonexistence of records
responsive to his request. Upon review, we affirm as to the privilege; however, we
remand to OOR to address the existence of other responsive records.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
                                      I. Background
              Requester submitted a two-part request seeking:

              (1) [DOC] Policy/ Procedure, “An inmate must be
              representing themselves [sic] in an actual litigation to be
              permitted to obtain copies and/or review their [sic] ‘Mental
              Health Records and/or Records (General)’ pursuant to DC-
              108;” [and,]

              (2) [DOC] Policy/ Procedure, “Before an inmate can receive
              copies of their [sic] ‘Mental Health Records and/or Records
              (General);’ they [sic] must provide: [(i)] name of the court;
              [(ii)] name of the case; and [(iii)] case number that they [sic]
              are representing themselves in.”

Certified Record (C.R.) at Item No. 1 (Request). Requester appended to the
Request a copy of the DOC form he used to authorize release of information, and
DOC’s response, including the quoted passages above. DOC submitted a timely
response stating, “Items 1 and 2 of your Request implicate the DC-ADM 003
Release of Information Procedures Manual [(Manual)] and are denied for the
following reasons,” citing the security exceptions,2 and the investigative exceptions
in the RTKL.3 Id. (Response) (emphasis added). Requester appealed to OOR,
seeking in camera review, and challenging DOC’s possession of responsive
records. He also contested the applicability of the asserted exceptions.
              On appeal, OOR allowed the parties to submit additional information.
DOC submitted a position statement regarding “[the Request] which sought, inter
       2
        DOC cited the personal security exception in Section 708(b)(1)(ii) of the RTKL, 65 P.S.
§ 67.708(b)(1)(ii), and the public safety exception in Section 708(b)(2) of the RTKL, 65 P.S. §
67.708(b)(2).
       3
         DOC cited the criminal investigative exception in Section 708(b)(16) of the RTKL, 65
P.S. § 67.708(b)(16), and the noncriminal investigative exception in Section 708(b)(17) of the
RTKL, 65 P.S. § 67.708(b)(17).


                                              2
alia, the [Manual] for [DOC] Policy DC ADM 003 (Release of Information).”
C.R., Item No. 3.     Specifically, DOC explained “the Manual is a guidance
document protected by the attorney work product doctrine,” and submitted a
declaration of Deputy Chief Counsel Elizabeth Pettis in support. Id. The position
statement noted OOR repeatedly held the Manual exempt as attorney work product.
It also explained the DOC Policy Statement for DC ADM 003 is publicly available,
and available “to inmates at their respective institution’s libraries.” Id. In her
declaration, Pettis attested to the characteristics of the Manual and its creation by
counsel “to provide legal guidance on various release-of-information issues with
which [DOC] is regularly presented.” Id. She also attested the Manual consists of
legal impressions and opinions. Neither the position statement nor the declaration
addressed the exceptions DOC asserted in its Response.
             In its final determination, based on DOC’s submission, OOR
concluded DOC submitted sufficient evidence to establish the Manual was exempt.
OOR did not review the Manual in camera. Requester filed a petition for review.


                                   II. Discussion
             Under the RTKL, records in possession of a Commonwealth agency
like DOC are presumed public unless they are: (1) exempt under Section 708(b) of
the RTKL; (2) protected by 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. “Privilege,” as defined in the RTKL, includes the attorney work-
product doctrine. Section 102 of the RTKL, 65 P.S. § 67.102. The burden of
proving applicability of a privilege to responsive records rests on the agency.
Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016).


                                         3
             Requester challenges the sufficiency of DOC’s response, in particular,
the existence of responsive records. He acknowledges DOC submitted evidence
that “the [responsive] records implicate the [Manual] (but did not attest that the
records are in their [sic] possession or exist within their [sic] agency) ....” He also
contends OOR erred in not “conduct[ing] ‘in camera review’ of the requested
records.” Pet. for Review at 5. Requester emphasizes DOC failed to demonstrate
whether “the specifics of the requested documents actually exist within [DOC].”
Pet’r’s Br. at 5. Requester also notes DOC did not raise the work-product privilege
in its Response.    Before addressing the sufficiency of DOC’s Response, we
consider whether OOR erred in declining to conduct in camera review of the
Manual.


                                 In Camera Review
             In Office of Open Records v. Center Township, 95 A.3d 354 (Pa.
Cmwlth. 2014) (en banc), this Court upheld the Office of Open Records’ [OOR]
authority to conduct in camera review. However, we did not mandate OOR to
conduct such review whenever requested to do so.           While recognizing that in
camera review offers OOR a vital tool for discerning the application of attorney
privileges, our recent decisional law reflects OOR exercises discretion in developing
the evidentiary record. See Twp. of Worcester v. Office of Open Records, 129 A.3d
44, 59 (Pa. Cmwlth. 2016) (declining to set parameters on when OOR may elect to
review records in camera).
             As the initial fact-finder, an appeals officer considers procedural
matters, including development of the record. Bagwell v. Dep't of Educ., 76 A.3d
81 (Pa. Cmwlth. 2013) (en banc). “In the ordinary course of RTKL proceedings,


                                          4
[receipt of evidence] 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., 94 A.3d
436, 442 (Pa. Cmwlth.), appeal denied, 106 A.3d 727 (Pa. 2014) (Levy III).
            Here, OOR received a declaration to support the work-product
privilege. Counsel attested the Manual was created by attorneys to provide legal
advice to her client on various information-release issues under DC ADM 03.
Counsel also attested that the Manual consisted of legal impressions and opinions.
            At the core of the work-product doctrine is that “attorneys need a
certain degree of privacy, free from unnecessary intrusion by opposing parties and
their counsel.” Commonwealth v. Kennedy, 876 A.2d 939, 945 (Pa. 2005) (quoting
Hickman v. Taylor, 329 U.S. 495, 510–11 (1947)). In the RTKL context, we hold
the work-product doctrine protects the “mental impressions, theories, notes,
strategies, research and the like created by an attorney in the course of his or her
professional duties …” from disclosure. Levy III, 94 A.3d at 443. “[T]o the extent
material constitutes an agency’s work product, it is not subject to compulsory
public disclosure pursuant to the RTKL.” In re Thirty–Third Statewide
Investigating Grand Jury, 86 A.3d 204, 225 (Pa. 2014) (citation omitted).
            Declarations containing sufficient detail are adequate to establish
privilege. See Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth. 2013).
The declaration here shows the privilege applies to the Manual. Thus, in camera
review of the Manual was not necessary to develop an adequate record for our
review of the privilege. Accordingly, we decline Requester’s invitation to remand
to OOR for the purpose of reviewing the Manual in camera. However, this does
not end our inquiry.




                                         5
            Although DOC established the Manual is privileged, and we affirm
OOR’s final determination in that regard, Requester also challenged the sufficiency
of DOC’s response and its evidence as to whether other responsive records exist.
Neither OOR nor DOC addressed this aspect of Requester’s appeal. We do so now.


                                DOC’s Response
            Requester disclaims the adequacy of DOC’s Response when it did not
attest as to the existence or nonexistence of other requested records. Because DOC
did not identify responsive records other than the Manual in its Response pursuant
to Section 903 of the RTKL, 65 P.S. § 67.903, and it appears other responsive
records exist, including a policy referenced in its submission to OOR, we remand
so OOR may confirm whether DOC identified all responsive records.
            Here, in its Section 903 Response, DOC identified only one record as
responsive to the Request – the Manual. Indeed, it did not state with any degree of
specificity whether the Manual was the sole record that was responsive to the
Request. Instead, DOC stated the Request “implicate[d]” the Manual, and did not
identify any other records, such as other policies or procedures, that would have
been responsive. As this Court explained in another matter involving DOC, use of
the word “implicates” is unclear and fails to identify records responsive to the
request at issue. See Carey v. Dep’t of Corr. (Pa. Cmwlth., No. 1348 C.D. 2012,
filed July 3, 2013) (unreported), 2013 Pa. Commw. Unpub. LEXIS 495 (Carey II);
see also Carey v. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013).
            Under the RTKL, an agency is required to search its records in good
faith, and determine whether responsive records are public or not. Sections 901,
903 of the RTKL, 65 P.S. §§ 67.901, 67.903. Further, an agency needs to describe


                                        6
responsive records with sufficient specificity so that a requester, and any
subsequent reviewers, may discern whether the asserted exemptions apply to
protect responsive records.
             In Carey v. Dep’t of Corr., this Court served as the fact-finder, and
directed DOC to supplement the record regarding its assertion of the security
exceptions. In so doing, DOC claimed a request “implicate[d] a transfer petition.”
Carey II, slip op. at 8. Then, DOC proceeded to explain how transfer petitions
were protected from disclosure. However, the request pertained to release and
recommitment records, and not a transfer petition. Because DOC did not submit
sufficient information to clarify whether other records responsive to Carey’s
request existed, we noted DOC did not substantiate an exemption as to any other
records responsive to Carey’s request.        Therefore, while we held the transfer
petition was exempt, we directed DOC to disclose all other responsive records. Id.
             We apply the same rationale, albeit in our appellate capacity, here.
DOC stated the Request implicated the Manual. DOC did not identify any other
responsive records in its Section 903 Response. Although Requester repeatedly
raised a concern that DOC did not substantiate whether requested records existed,
OOR did not address that part of Requester’s appeal.
             In its submission to OOR, due on the same date as any submission by
Requester, DOC acknowledged the Request sought the Manual among other
things, without further explication. For the first time, the declaration and the
position statement identify another responsive record, namely the Policy Statement
for DC ADM 003. As that record was not identified in the Section 903 Response,
and was responsive, we discern merit in Requester’s concern that DOC did not
address the existence or nonexistence of all of the requested records.


                                          7
              Further, the declaration DOC submitted pertains solely to the Manual,
as though the Request sought only the Manual and no other records. That is not an
accurate characterization of the Request. In that manner, DOC did not respond to
Requester’s actual request, and so did not confirm the existence of any other
responsive records. See Carey II.
              We are mindful that one of the principles underlying the RTKL is to
allow citizens to scrutinize government activity and increase transparency. SWB
Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012). This would include
DOC’s compliance with its own policies and procedures. See Owens v. Horn, 684
A.2d 208 (Pa. Cmwlth. 1996) (holding DOC Code of Ethics regarding conduct of
its personnel is public under former RTKL).4 Thus, to the extent DOC has policies
and procedures pertaining to the performance of its functions as a government
agency, those policies and procedures are subject to mandatory disclosure unless
exempt.
              Accordingly, we remand to OOR to clarify the completeness of
DOC’s Response by additional evidence if necessary. OOR may opt, as this Court
did in Carey II, to direct DOC to disclose any other responsive records, including
the Policy Statement DOC identified subsequent to its Response, and/or to submit
an affidavit of nonexistence as to any other policies or procedures that relate to the
subjects specified in the Request.




       4
         Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1–66.9 (repealed by
Section 3102 of the RTKL, 65 P.S. § 67.3102).


                                              8
                                III. Conclusion
            For the foregoing reasons, we affirm OOR’s final determination as to
the privileged nature of the Manual. However, on this record, there is some
ambiguity as to the existence of other records responsive to the Request, which
may be subject to disclosure. Thus, we remand to OOR to address that issue.

                                     __________________________________
                                     JULIA K. HEARTHWAY, Judge




                                       9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lindsay P. Shuler,                     :
                     Petitioner        :
                                       :
            v.                         : No. 237 C.D. 2016
                                       :
Pennsylvania Department of             :
Corrections,                           :
                 Respondent            :



                                    ORDER


            AND NOW, this 1st day of November, 2016, the final determination of
the Office of Open Records (OOR) is AFFIRMED IN PART, as to the Manual, and
we REMAND to the fact-finder OOR to develop the record as to the existence of
other responsive records, so as to clarify the completeness of the response
submitted to Petitioner by Respondent.


            Jurisdiction is relinquished.




                                       __________________________________
                                       JULIA K. HEARTHWAY, Judge
