          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Chambersburg Area School District               :
                                                :
               v.                               :   No. 1359 C.D. 2013
                                                :
Jason J.A. Reed,                                :   Argued: June 16, 2014
                                                :
                              Appellant         :



BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                      FILED: August 20, 2014

      Jason J.A. Reed (Requester) appeals from two Orders of the Court of
Common Pleas of the 39th Judicial District (Franklin County Branch) (trial court).1
By Order entered July 10, 2013, the trial court issued findings of fact and
conclusions of law holding that the Chambersburg Area School District (District)
was not required, pursuant to the Right to Know Law2 (RTKL), to disclose 19
pages of emails to Requester because the emails were protected by attorney-client
privilege, thereby reversing a Final Determination of the Office of Open Records

      1
         This matter was argued seriatim with Chambersburg Area School District v. Maria
Dorsey, ___ A.3d ___ (Pa. Cmwlth., No. 1358 C.D. 2013, filed August 20, 2014).

      2
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104.
(OOR). By Order entered August 5, 2013, the trial court granted the District’s
Motion to Quash Requester’s “Motion to Supplement the Record Pursuant to Pa.
R.C.P. Rules 1017 and 1019” (Motion to Supplement the Record). In accordance
with our decision in Chambersburg Area School District v. Maria Dorsey, ___
A.3d ___ (Pa. Cmwlth., No. 1358 C.D. 2013, filed August 20, 2014), we affirm the
July 10, 2013 Order, reverse the August 5, 2013 Order, and remand this matter for
further proceedings.


      The facts and procedural history of this matter are almost identical to
Dorsey. On December 5, 2011, Requester filed a RTKL Request with the District
seeking the same exact records sought by the requester in Dorsey.3                     (RTKL


      3
          Requester sought the following documents:

      1. All grant proposals and financial requests submitted by the Chambersburg Area
      School District or any other entity/ies or individual/s for the benefit of or
      involving the Chambersburg Area School District afterschool program or the “Hip
      Hop Club” or REACHUSA, Inc.; all responses to such proposals and requests by
      grantee(s); all responses to such proposals and requests by afterschool
      programming sponsor(s); and all responses to grantors and sponsors, regarding
      the grant proposals and financial requests, by Chambersburg Area School District
      between January 1, 2007 to present;
      2. All records, including reports and financial records, between January 1, 2007 to
      present, involving the Chambersburg Area School District afterschool program,
      the “Hip Hop Club”, REACHUSA, Inc. and all other programs involving the
      Chambersburg Area School District and Jason Reed;
      3. All records, including reports and financial records, between January 1, 2007 to
      present, involving the Chambersburg Area School District afterschool program or
      the “Hip Hop Club” or REACHUSA, Inc. and all other programs involving the
      Chambersburg Area School District and Jason Reed;
      4. All documentation submitted to any party between January 1, 2007 to present,
      by the Chambersburg Area School District or any other entity/ies or individual/s
      for the benefit of or involving the Chambersburg Area School District afterschool
                                                                               (Continued…)
                                              2
Request, R.R. at 6a.) After the District granted Requester’s RTKL Request in
part,4 but denied disclosure of 19 pages of emails based on attorney-client
privilege,5 Requester filed an appeal with the OOR.                 (Letter from District to
Requester (January 9, 2012), R.R. at 8a; OOR Appeal, R.R. at 3a-5a.) The OOR
issued a Final Determination on February 14, 2012, without conducting a hearing,
granting Requester’s appeal, in part, and denying it, in part, and requiring the
District to disclose the emails.


       The District filed a petition for review with the trial court.                 (District’s
Petition for Review, R.R. at 46a-139a.) The District alleged, inter alia, that the


       program, the “Hip Hop Club”, REACHUSA, Inc. and all other programs
       involving the Chambersburg Area School District and Jason Reed; and
       5. All records referencing or involving Jason Reed or REACHUSA, Inc..

(RTKL Request, R.R. at 6a.)

       4
         The District provided Requester with three letters and a printout from its website of the
agenda for the July 11, 2007 regular school board meeting. (Letter from District to Requester
(January 9, 2012), R.R. at 8a.)

       5
          See Section 708(b)(17)(iv) of the RTKL, 65 P.S. § 67.708(b)(17)(iv) (providing that
“[a] record that includes information made confidential by law” is exempt from disclosure). The
following four elements are required to establish the attorney-client privilege: (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. Dages v.
Carbon County, 44 A.3d 89, 92 (Pa. Cmwlth. 2012). Pursuant to Section 708(a) of the RTKL,
65 P.S. § 67.708(a), the District was required to meet its burden that the requested emails were
protected by attorney-client privilege by a preponderance of the evidence.




                                                3
emails requested by Requester were not public records because they were
privileged attorney-client communications and otherwise protected by the attorney
work product doctrine. (District’s Petition for Review, R.R. at 47a.) In support of
this assertion, the District attached an affidavit from its Open Records Officer
setting forth which emails the District believed were privileged attorney-client
communications.      (District’s Petition for Review, Ex. H, Affidavit of Sylvia
Rockwood, R.R. at 139a.)


       Although Requester’s appeal was not consolidated with the requester’s
appeal in Dorsey the proceedings in the trial court were virtually identical,
culminating in the trial court’s July 10, 2013 Order reversing the OOR’s Final
Determination and the August 5, 2013 Order quashing Requester’s Motion to
Supplement the Record. Notably, as in Dorsey, during the trial court proceedings
the District notified Requester, by letter dated April 29, 2013, that it had located
additional public records/documents that were responsive to his RTKL Request;
therefore, the District provided Requester with a CD-ROM containing 3,591 pages
of additional records. (Letter from District to Requester (April 29, 2013), R.R. at
611a.) On June 14, 2013, the District informed the trial court by letter that the
reason for the delay in providing these documents to Requester was because the
District’s interim Open Records Officer had just discovered these documents when
the District was conducting discovery in an unrelated federal case brought by
Requester against the District.6 (Letter from District to Trial Court (June 14,
2013), R.R. at 612a-13a.) The District further informed the trial court that it

       6
       The federal case brought by Requester involved the same afterschool program, the “Hip
Hop Club,” which is the subject of Requester’s RTKL Request.

                                             4
anticipated that Requester would seek attorneys’ fees and costs pursuant to
Sections 13047 and 13058 of the RTKL; however, the District stated that it did not
willfully withhold the additional documents and that the documents were provided
immediately upon discovery. (Letter from District to Trial Court (June 14, 2013),
R.R. at 612a-13a.)


       7
           65 P.S. § 67.1304. Section 1304 governs court costs and attorney fees and provides as
follows:

       (a)     Reversal of agency determination.--If a court reverses the final
       determination of the appeals officer or grants access to a record after a request for
       access was deemed denied, the court may award reasonable attorney fees and
       costs of litigation or an appropriate portion thereof to a requester if the court finds
       either of the following:

                (1) the agency receiving the original request willfully or with wanton
                    disregard deprived the requester of access to a public record subject to
                    access or otherwise acted in bad faith under the provisions of this act;
                    or

                (2) the exemptions, exclusions or defenses asserted by the agency in its
                    final determination were not based on a reasonable interpretation of
                    law.

       (b)    Sanctions for frivolous requests or appeals.--The court may award
       reasonable attorney fees and costs of litigation or an appropriate portion thereof to
       an agency or the requester if the court finds that the legal challenge under this
       chapter was frivolous.

       (c)     Other sanctions.--Nothing in this act shall prohibit a court from imposing
       penalties and costs in accordance with applicable rules of court.
Id.

       8
         65 P.S. § 67.1305(a). Section 1305(a) provides for a civil penalty of not more than
$1,500 if access to a public record is denied in bad faith.




                                                 5
       Requester now appeals the trial court’s July 10, 2013 and August 5, 2013
Orders to this Court. The issues raised and the arguments advanced by the parties
in this appeal are substantially the same as those set forth and disposed of by this
Court in Dorsey. Accordingly, for the reasons set forth in that decision, the trial
court’s July 10, 2013 Order denying Requester access to the 19 pages of emails
that are exempt from disclosure based on attorney-client privilege is affirmed. The
trial court’s August 5, 2013 Order granting the District’s Motion to Quash
Requester’s Motion to Supplement the Record is reversed.            This matter is
remanded for the trial court to reconsider Requester’s Motion to Supplement the
Record and for a determination as to whether the District made a good faith effort
to locate responsive records at the time Requester made his RTKL Request.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Chambersburg Area School District        :
                                         :
            v.                           :   No. 1359 C.D. 2013
                                         :
Jason J.A. Reed,                         :
                                         :
                           Appellant     :


                                       ORDER

      NOW, August 20, 2014, it is hereby ORDERED as follows:
   1. The Order of the Court of Common Pleas of the 39th Judicial District
      (Franklin County Branch) entered July 10, 2013 in the above-captioned
      matter is AFFIRMED.
   2. The Order of the Court of Common Pleas of the 39 th Judicial District
      (Franklin County Branch) entered August 5, 2013 in the above-captioned
      matter is REVERSED.
   3. This matter is REMANDED for further proceedings consistent with the
      foregoing opinion.


      Jurisdiction relinquished.


                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge
