              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Public Utility                    :
Commission,                                    :
                  Petitioner                   :
                                               :    No. 504 C.D. 2017
               v.                              :
                                               :    Argued: December 4, 2017
Sunrise Energy, LLC,                           :
                  Respondent                   :


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                                  FILED: January 12, 2018


               The Pennsylvania Public Utility Commission (PUC) petitions for review
of the March 27, 2017 final determination of the Office of Open Records (OOR),
granting Sunrise Energy, LLC (Sunrise) access to certain information held by the PUC
and related to an identified Commonwealth Court proceeding.


                              Facts and Procedural History
               On October 17, 2016, David Hommrich, on behalf of Sunrise (together,
the Requester), submitted a request to the PUC pursuant to Pennsylvania’s Right to
Know Law (RTKL),1 seeking all email and correspondence between the PUC staff and
First Energy Corporation (First Energy) regarding the case of Sunrise Energy, LLC v.
First Energy Corporation (Pa. Cmwlth., No. 1282 C.D. 2015, October 14, 2016), from

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
the past year. The PUC identified 64 emails in response to the request, and explained
that, while the PUC was not a party to the related litigation, it participated as amicus
curiae. The PUC denied the request on November 22, 2016, asserting that the
requested documents were protected from disclosure by both the attorney-work-
product doctrine and the attorney-client privilege. The Requester appealed the PUC’s
denial to the OOR on December 9, 2016. (Reproduced Record (R.R.), 503 C.D. 2017,
at Item No. 2.)
               On November 23, 2016, the Requester submitted a second request to the
PUC, seeking copies of all emails and correspondence between First Energy and the
PUC between November 23, 2016, and October 17, 2016, regarding Case No. 1282
C.D. 2015 before the Commonwealth Court. The PUC identified 31 responsive emails,
but denied the request on December 28, 2016, again asserting the attorney-work-
product doctrine. The Requester appealed the PUC’s denial to the OOR on January
17, 2017. (R.R., 504 C.D. 2017, at Item No. 2.)
               The basis of the January 17, 2017 appeal to the OOR was limited to the
issue of whether the requested documents were protected by the attorney-work-product
doctrine. The PUC again argued that the emails and correspondence were protected
because they related to the PUC’s submission of an amicus brief on behalf of First
Energy. The PUC noted that the communications related to ongoing litigation between
the Requester and First Energy regarding the Alternative Energy Portfolio Standards
Act (AEPS Act),2 and that it believed that the Requester would ultimately pursue
litigation against the PUC to challenge its implementation of the AEPS Act. Further,
the PUC contended that the Requester lacked standing to bring the appeal because
Sunrise was not named in the original request, and that the issue should be resolved


      2
          Act of November 30, 2004, P.L. 1672, 73 P.S. §§ 1648.1–1648.8.


                                                2
before the court of common pleas as a discovery issue, rather than by the OOR. To
support its position, the PUC submitted the affidavits of its Open Records Officer,
Deputy Chief Counsel, and Assistant Counsel.
                In its brief, the Requester contended that the PUC did not sufficiently
demonstrate that the requested materials constituted attorney-work-product, and, even
if the doctrine applied, the PUC waived the privilege by exchanging the requested
emails with First Energy. In its response brief, the PUC countered that it shared a
common legal interest with First Energy, and noted that the common interest doctrine
serves as an exception to the waiver of the attorney-work-product doctrine.
                On March 27, 2017, the OOR issued its final determination, which granted
the Requester’s appeal and directed the PUC to provide all responsive records to the
Requester within 30 days.               (Petitioner’s brief, at Appendix A.)      In its final
determination, the OOR determined that (1) the Requester had standing to appeal the
PUC’s denial of the request; (2) although the responsive emails constituted attorney-
work-product, that privilege was waived; and (3) article V, section 10(c) of the
Pennsylvania Constitution3 does not protect the records from public disclosure in this
instance.       The PUC timely appealed the OOR’s final determination to the
Commonwealth Court.
                On appeal,4 the PUC raises four issues: (1) whether emails between PUC
attorneys and counsel for First Energy, for the purpose of representing the
Commission’s shared interest in First Energy’s legal position on jurisdiction under the
AEPS Act and which were not disclosed to third parties, constitute attorney-work-

       3
           PA. CONST. art. V, §10(c).

       4
         “This Court's standard of review of a final determination of the OOR is de novo and our
scope of review is plenary.” Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 n.7 (Pa.
Cmwlth. 2014).


                                                 3
product excluded from the RTKL’s definition of a public record; (2) whether PUC
attorneys waived the attorney-work-product privilege where the attorneys, representing
the PUC’s legal interest in pending litigation and as amicus curiae supporting a third
party’s legal position on jurisdiction against a common adversary, generated email
communication, containing the attorneys’ factual and legal analysis, with the third
party’s counsel; (3) whether the order issued by the OOR infringes upon the
Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law by
narrowing the application of the attorney-work-product doctrine for state agency
attorneys and otherwise compelling the disclosure of information subject to the
Supreme Court’s rules of confidentiality; and (4) whether Sunrise lacks standing as a
“requester” to appeal under the RTKL, where the original RTKL request named David
N. Hommrich as the requester and was not filed in Hommrich’s official capacity as an
officer of Sunrise.


                                         Discussion
             The issues presented in this matter are identical to those presented and
resolved by this Court in the related matter of Pennsylvania Public Utility Commission
v. Sunrise Energy, LLC, (Pa. Cmwlth., No. 503 C.D. 2017, filed ___________, 2018).
In that case, we vacated the OOR’s final determination and remanded the matter to the
OOR, determining that the OOR did not review the content of the emails identified by
the PUC to determine which entity held the attorney-work-product privilege with
respect to each email, and because First Energy did not receive notice of its ability to
participate in the disclosure dispute.
             We also found the PUC’s argument that the OOR’s final determination
infringed upon the Pennsylvania Supreme Court’s exclusive authority to regulate the



                                             4
practice of law to be without merit, and that the Requester had standing to bring the
appeal.


                                       Conclusion
             Accordingly, we find that this disclosure dispute must be remanded to the
OOR to determine, on an individual basis, whether the emails identified by the PUC
constitute attorney-work-product of either the PUC or First Energy. To do so, the PUC
is directed to, first, notify First Energy of the disclosure dispute and invite First Energy
to participate, and, second, submit a privilege log to the OOR. We also find that
Hommrich had standing to bring this appeal on behalf of Sunrise, and that the PUC’s
argument with respect to article V, section 10(c) of the Pennsylvania Constitution must
fail.
             Therefore, we vacate the OOR’s final determination and remand the
matter to the OOR to complete the record.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                             5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Public Utility               :
Commission,                               :
                  Petitioner              :
                                          :    No. 504 C.D. 2017
             v.                           :
                                          :
Sunrise Energy, LLC,                      :
                  Respondent              :


                                      ORDER


             AND NOW, this 12th day of January, 2018, the final determination of
the Office of Open Records (OOR) is vacated. The matter is remanded to the OOR
for further proceedings consistent with this opinion.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
