          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Office of the Governor,                       :
                             Petitioner       :
                                              :
               v.                             :    No. 1940 C.D. 2014
                                              :    Argued: June 17, 2015
Robert H. Davis, Jr.,                         :
                             Respondent       :

BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION
BY JUDGE SIMPSON                              FILED: August 12, 2015

                 The Office of the Governor (Governor’s Office) petitions for review
from a final determination of the Office of Open Records (OOR), granting in part
and denying in part the request of Robert H. Davis, Jr., Esquire (Requester) under
the Right-to-Know Law (RTKL).1 Requester sought records underlying a letter
drafted by counsel in the Office of General Counsel (OGC). The Governor’s
Office contends OOR erred in applying the attorney-client privilege and the
predecisional deliberative exception in Section 708(b)(10) of the RTKL, 65 P.S.
§67.708(b)(10). Specifically, it argues OOR misplaced the burden of proof when
analyzing the privilege, and misconstrued the “internal” element of the
predecisional deliberative exception. Upon review, we vacate and remand.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101—67.3104.
                                     I. Background
            On March 27, 2014, Requester filed a RTKL request generally
seeking records pertaining to the Pennsylvania Game Commission’s (Commission)
consideration of William Capouillez (Capouillez) for the position of its Executive
Director. Specifically, he sought:

            A copy of all records and any form of communication, in
            whatever format or form they may exist, from the period June
            1, 2013 to the present, created, sent, received or referred to
            others by Governor Tom Corbett, Deputy Chief of Staff and
            Energy Executive Patrick Henderson, Press Secretary Jay
            Pagni and Deputy Chief of Staff Luke Bernstein and any
            members of their staffs and any person employed by any
            energy company regarding any information relating to
            William Capouillez, to Carl Roe, to any member of the
            [Commission] and any Executive Director Candidates or the
            interview process for such Executive Director Position and
            more specifically, while not limiting the preceding request, the
            following:

            [1] Copies of all records and any form of communication, in
            whatever format or form they may exist and of related
            information received, sent, or used by the [Governor’s Office]
            to recommend the course of action as indicated in the March
            11, 2014 letter of Jared W. Handelman, First Executive
            Deputy General Counsel directed to Bradley C. Bechtel, Chief
            Counsel, which is attached; and

            [2] Copies of all records and any and all forms of
            communication, in whatever format or form they may exist,
            and related information, received, sent, or created by the
            Governor and members of his Cabinet and Executive Staff (to
            include, but not limited to the specified ‘published reports and
            other information’ mentioned in the March 11, 2014 letter of
            [Attorney Handelman], to [Attorney] Bechtel, attached) which
            were considered or used in making the statement of
            [Handelman] in that letter that: ‘In fact, I am confident ... [I]
            would not approve the appointment of [Capouillez] as the
            Executive Director of the [Commission];’ and


                                          2
            [3] With reference to a letter dated March 18, 2014 signed by
            Governor Corbett and others to any Commissioner of the
            [Commission], one of which letters is attached for your
            convenient reference:

                 [a] Provide a copy of all records and any and all forms
            of communication received, developed or used by the
            [Governor’s Office] as a basis of the facts stated in such letter
            and to recommend the course of action with regard to
            [Commission] employee [Capouillez] stated in such letter; and

                  [b] Provide a copy of all records and any and all forms
            of communication, in whatever format or form they may exist
            and any related information from any source used or
            considered by the [Governor’s Office] to cause the Governor
            or other signatories to make the statement of ‘request’ in the
            penultimate paragraph, page 2, of the March 18th letter,
            attached for your convenient reference, that any
            Commissioner who was ‘otherwise inclined to refuse the
            above recommendations, alternatively[,] we request that you
            immediately resign your appointment to the Board of
            Commissioners;’ and

                   [c] Provide a copy of all records and any and all forms
            of communication, in whatever format or form they may exist
            and any related information from any source used or
            considered by each signatory of the March 18th letter,
            attached, known by the [Governor’s Office] to reflect the
            opinions, views or positions of any signatory of such letter, to
            recommend the factual conclusions, the recommendations and
            the requests contained in such letter; including but not limited
            to the ‘request’ that any Commissioner who might be
            ‘otherwise inclined to refuse the above recommendations,
            [alternatively] we request that you immediately resign your
            appointment to the Board of Commissioners.’

Amended Reproduced Record (R.R.) at 22a-24a (Request). Requester attached the
March 11th and March 18th letters referenced in the Request, in which various
executive and legislative officials recommended that the Commission not consider
Capouillez as a candidate for the Executive Director position. R.R. at 25a-28a.


                                         3
             After invoking a 30-day extension, the Governor’s Office partially
granted and partially denied the Request, withholding: personal e-mail addresses
and phone numbers pursuant to Section 708(b)(6) of the RTKL, 65 P.S.
§67.708(b)(6); documents reflecting internal, predecisional deliberations pursuant
to Section 708(b)(10) of the RTKL; and, documents containing communications
exempt under the attorney-client privilege.


             Requester appealed to OOR. OOR invited the parties to supplement
the record. In response, the Governor’s Office provided a position statement and
requested that OOR conduct in camera review of the records at issue. Requester
also provided a position statement.          Thereafter, upon OOR’s request, the
Governor’s Office submitted Bates-labeled records to OOR for in camera
inspection, accompanied by an index setting forth an exemption as to each Bates-
labeled record (Index). The Index identified each email by date and time, the
names of participants, and, for some records, the subject of the email.       See
Supplemental Reproduced Record (S.R.R.) 1b-12b. The Index did not identify the
employer or title of the participants, and it did not explain how each exemption
applied to the records.


             Based on its in camera review, OOR issued a final determination,
Davis v. Pennsylvania Office of the Governor, OOR Dkt. No. AP 2014-0835
(issued September 26, 2014) (Final Determination), denying the appeal in part, and
granting the appeal in part.    OOR concluded the Governor’s Office properly
redacted personal e-mail addresses and phone numbers, and properly withheld
certain records under the predecisional deliberative exception. As to the records



                                         4
found exempt, OOR referenced records and parts of records Bates-labeled OG
001-069 identifying which portions were exempt with some specificity. However,
OOR granted access to the records Bates-labeled OG 070-133 without explaining
the reasons for finding them not exempt with reference to specific records.


               With regard to the predecisional deliberative exception, OOR stated it
found portions of the records Bates-labeled OG 001-069 protected because they
“reflect the internal, predecisional deliberations of [Governor’s] Office employees
and employees or officials of an agency as defined by the RTKL.”                           Final
Determination at 9. Significantly, OOR did not indicate which of the “remainder
of the records … are not internal and/or deliberative in nature” by Bates-label or
any other descriptor.2 Id.


               In determining the “remainder” was not protected, OOR explained:

               Records are not ‘internal’ under Section 708(b)(10) if they are
               sent to or from a party that is not an employee or official of an
               entity that is defined as an agency under the RTKL. … Here,
               certain responsive records are not ‘internal’ because they
               originate from individuals that are not employees or officials
               of an agency. Additionally, certain records claimed to be
               subject to this exemption were provided to the Requester ….

               Further, other records at issue are not deliberative in nature.
               The term ‘deliberation’ is generally defined as ‘[t]he act of
               carefully considering issues and options before making a
               decision or taking some action ….’ Factual information and
               statements are not deliberative in nature. Additionally,
               although discussions among employees of an agency may be
               internal and predecisional, an agency also has to demonstrate
       2
        OOR noted that, pursuant to its Interim Guidelines, it referred to the records reviewed in
camera and their contents with generic descriptions. See Final Determination at 6 n.2.



                                                5
             that these discussions are deliberative. In the instant case, the
             [Governor’s] Office has not demonstrated that certain records
             are deliberative in nature.

Final Determination at 9-10 (citations omitted) (emphasis added).


             With regard to the attorney-client privilege, OOR concluded the
Governor’s Office did not meet its burden of proof. OOR determined “certain
records” on their face met the first three prongs of the privilege, but were not
entitled to exemption because the Governor’s Office did not provide any evidence
of non-waiver. Id. at 6. OOR also noted the Governor’s Office did not submit an
affidavit to support the elements of the privilege, concluding the unsworn position
statement was not competent evidence. Regardless of the lack of evidence, OOR
reasoned “certain records” would not be privileged “because they do not constitute
communications that were made for the purpose of securing either an opinion of
law, legal services or assistance in a legal matter.” Id. at 7. Again, OOR did not
identify these records by Bates-label or other designation.


             The Governor’s Office then filed a petition for review to this Court.
After briefing, the matter was scheduled for oral argument. A few days before
argument, the Governor’s Office attempted to submit additional evidence for
consideration by this Court on appeal. Specifically, the Governor’s Office applied
for leave to file the records reviewed in camera under seal and requested an
evidentiary hearing, or alternatively, for permission to supplement the record with
an affidavit and a more detailed privilege log. This Court denied that request.




                                          6
              Originally, OOR did not include the in camera records in the certified
record. In accordance with our decision in Bagwell v. Department of Education,
114 A.3d 1113 (Pa. Cmwlth. 2015) (Bagwell (2015), this Court ordered OOR to
complete the certified record by submission of the Bates-labeled records it
reviewed under seal. OOR complied in July. Based on the complete evidentiary
record, we undertake appellate review of OOR’s determination.


                                       II. Discussion
              On appeal,3 the Governor’s Office argues OOR erred as a matter of
law in placing the burden of proving non-waiver of the attorney-client privilege on
the agency. It asserts there is no evidence indicating it waived the privilege, and
such waiver should not be presumed. Consequently, OOR erred in not protecting
those records containing privileged legal communications. The Governor’s Office
also contends OOR erred in applying the predecisional deliberative exception. It
challenges OOR’s interpretation of the “internal” element as too narrow.


              Requester counters that it is the Governor’s Office’s burden to
establish that the privilege was not waived. He emphasizes OOR concluded that
some of the records did not qualify as communications pertaining to legal advice,
and so those records would not be privileged regardless of evidence of waiver.
Requester also maintains an unsworn statement does not constitute evidence and is
insufficient to support any of the asserted exemptions.

       3
         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
              The RTKL is remedial in nature and “is designed to promote access
to official government information in order to prohibit secrets, scrutinize the actions
of public officials, and make public officials accountable for their actions.” Pa. State
Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc). 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.


             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. 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).


             Thus, the Governor’s Office bears the burden of proving the attorney-
client privilege or the predecisional deliberative exception protects the records.4
      4
         From review of the in camera records, the records at issue here consist of
correspondence, the majority of which are emails, and their attachments.



                                           8
                                  A. Exemptions
                           1. Attorney Client Privilege
             We recently assessed OOR’s application of the attorney-client
privilege in Bagwell v. Department of Education, 103 A.3d 409 (Pa. Cmwlth.
2014) (Bagwell (2014).      There, we held that to establish the attorney-client
privilege, the agency claiming it must demonstrate:

             (1) The asserted holder of the privilege is or sought to become
             a client.

             (2) The person to whom the communication was made is a
             member of the bar of a court, or his subordinate.

             (3) The communication relates to a fact of which the attorney
             was informed by his client, without the presence of strangers,
             for the purpose of securing either an opinion of law, legal
             services or assistance in a legal matter, and not for the purpose
             of committing a crime or tort.

             (4) The privilege has been claimed and is not waived by the
             client.

Id. at 420 n.12 (emphasis added) (citing Nationwide Mut. Ins. Co. v. Fleming, 924
A.2d 1259 (Pa. Super. 2007), aff’d by an equally divided court, 992 A.2d 65 (Pa.
2010)). We also confirmed that after an agency establishes the privilege was
properly invoked under the first three prongs, the party challenging invocation of the
privilege must prove waiver under the fourth prong. Id.; see also Carbis Walker,
LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007).


             Further, “the privilege only applies where the client’s ultimate goal is
legal advice.” Nat’l RR Passenger Corp. v. Fowler, 788 A.2d 1053, 1064 (Pa.
Cmwlth.    2011)    (emphasis    added).       The    central   requirement   is   that


                                           9
“communications be for the purpose of securing or providing professional legal
services. Thus … the privilege does not extend to business advice or protect
clients from factual investigations.” Gillard v. AIG Ins. Co., 15 A.3d 44, 52 n.8
(Pa. 2011) (opinion in support of affirmance).


               Here, OOR determined the privilege did not protect some of the
records because the Governor’s Office did not prove waiver, the fourth prong.
Additionally, OOR noted that some of the records to which the Governor’s Office
invoked the privilege did not qualify under the third prong as communications
pertaining to legal advice.


               As OOR reasoned, the privilege holder must establish the
communication was confidential, meaning shared only within the attorney-client
relationship. Indeed, as part of the third prong, the party invoking the privilege must
establish the records are confidential, in that they are not circulated among
“strangers.”    Fleming.      However, once the Governor’s Office establishes the
privilege, Requester bears the burden of proving waiver. Bagwell (2014). To the
extent OOR concluded any of the records did not qualify as privileged because the
Governor’s Office did not establish waiver, OOR erred. Id.


               Therefore, we remand to OOR to reconsider the privilege issue in
accordance with Bagwell (2014). See also Bagwell (2015) (remanding to allow
requester to submit evidence to establish waiver prong of privilege). Although
Requester did not submit evidence of waiver, he contends “[the Index] shows the
records were shared among the Governor’s Office, the [Commission], the legislature



                                          10
and even the Governor’s Energy Advisor.” Resp’t’s Br. at 14. OOR shall consider
whether circulation among such recipients takes the communication outside the
attorney-client relationship.


                      2. Predecisional Deliberative Exception
             Here, the Governor’s Office relied entirely on the records submitted in
camera, the Index, and the cover letter from counsel to support its assertion of the
predecisional deliberative exception in Section 708(b)(10)(i) of the RTKL. The
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,
             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 (citation
omitted). Records may satisfy the “internal” element when they are maintained
internal to one agency or among governmental agencies. Id.; see Kaplin v. Lower



                                             11
Merion Twp., 19 A.3d 1209, 1216 (Pa. Cmwlth. 2011) (exception covers two
distinct situations, one involves deliberation within one agency, the other involves
deliberative communication between two agencies when agencies collaborate
regarding a course of action).


             The origination of records from outside an agency does not preclude
application of the RTKL exceptions. See Bagwell v. Dep’t of Educ., 76 A.3d 81
(Pa. Cmwlth. 2013) (records originating with Penn State University, which is not an
agency, may become records of an agency when records are used in agency decision-
making). Therefore, OOR erred to extent it determined certain records were not
protected by this exception based on their origin outside an agency.          Final
Determination at 9 (“records are not ‘internal’ because they originate from
individuals that are not employees or officials of an agency.”).


             Further, it is unclear from the Final Determination how OOR construed
the “internal” element of the exception.         Records qualify as internal when
maintained among agencies collaborating toward an agency action or decision.
Kaplin. That the Commission may have consulted with the Governor’s Office or
OGC in making a hiring decision does not destroy the legitimacy of the exception.


             OOR also advised generally that “other records at issue are not
deliberative in nature.” Final Determination at 9. OOR did not explain why it
could not discern the deliberative nature from its review of the records in camera.
Thus, we lack sufficient information to review the merits of OOR’s determination
that “certain records” are not deliberative in nature.



                                          12
                             B. Sufficiency of Evidence
             As we are remanding to OOR, we address Requester’s arguments
questioning the sufficiency of the Governor’s Office’s evidence to offer OOR
additional guidance.


             The only evidence the Governor’s Office submitted to OOR were the
records reviewed in camera.5 There is no dispute the Governor’s Office did not
submit an affidavit or any other documentary evidence to OOR. Its unsworn
position statement does not constitute evidence. Position statements are akin to
briefs or proposed findings of fact, which, while part of the record, are
distinguishable from the evidentiary record. See Sherrill v. Workers’ Comp. Appeal
Bd. (Sch. Dist. of Phila.), 624 A.2d 240 (Pa. Cmwlth. 1993) (distinguishing briefs
and proposed findings from evidence); see also Housing Auth. of Pittsburgh v. Van
Osdol, 40 A.3d 209 (Pa. Cmwlth. 2012) (assertions in briefs are not evidence).


             Requester argues the exemptions cannot be evaluated without an
affidavit or other documentary evidence supporting each element of each exemption.
We disagree.


             Early into our work with the new RTKL, this Court recognized the
utility of affidavits as evidence upon which an appeals officer may base a decision.
See, e.g., Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011)
(recognizing affidavits may be used to establish exemptions); Moore v. Office of

      5
           The Index that accompanied the records, which was unverified, constitutes an
interpretive aid as opposed to evidence.



                                          13
Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (affidavit suffices to establish
nonexistence of records). Indeed, this Court cited lack of a sufficiently detailed
affidavit as the grounds for rejecting asserted exemptions. See, e.g., Office of
Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (en banc) (holding agency
did not meet burden of proving predecisional deliberative exception because
affidavit consisted of conclusory statements). However, this Court has not held an
affidavit or other verified statement is required to prove an exemption. Rather, we
hold evidence is required, and in the RTKL context, an affidavit may serve that
function.


             Similarly, we held records reviewed in camera are sufficient evidence
for an agency to meet its burden of proof. See Pa. State Police v. Office of Open
Records (Gilliland), 5 A.3d 473 (Pa. Cmwlth. 2010) (en banc), appeal denied, 76
A.3d 540 (Pa. 2013) (court reviewed incident report in camera and held the report
as a whole was protected); accord LaValle v. Office of Gen. Counsel, 769 A.2d 449
(Pa. 2001) (noting utility of in camera review when generic descriptions are
insufficient, resulting in an inadequate record before the agency). Recognition of
OOR’s authority to utilize in camera review to assess protected status is of relatively
recent vintage. See Office of Open Records v. Center Twp., 95 A.3d 354 (Pa.
Cmwlth. 2014) (en banc).        Thus, an affidavit may be unnecessary when an
exemption is clear from the face of the record.         Gilliland.   Moreover, when
descriptions of records may undermine the very protection sought, an affidavit may
be counterproductive and infeasible. See Lame v. U.S. Dep’t of Justice, 654 F.2d
917 (3d Cir. 1981) (in camera index necessary in Freedom of Information Act, 5
U.S.C. §552, context to protect record content).



                                          14
             Records reviewed in camera may serve as a sufficient basis for a fact-
finder to assess whether an exemption applies. See Levy v. Senate of Pa., 65 A.3d
361 (Pa. 2013) (approving special master’s review of legal invoices in camera to
determine privileged status); Center Twp.; accord McGowan v. Dep’t of Envtl.
Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (remanding to OOR to evaluate email in
camera and assess deliberative contents, and subject factual content to mandatory
redaction). An index, even one containing minimal description, offers a tool for a
fact-finder reviewing corresponding records. Accord Heavens (explaining value of
index corresponding exemptions to described records).


             We agree with Requester that the Index here is vague and does not
contain sufficient information to establish the exemptions. Regardless, OOR had
the opportunity to review the unredacted records themselves.           A fact-finder
reviewing unredacted records may be in a better position to evaluate content than a
fact-finder with only an index or an affidavit. See Center Twp. (explaining utility
of in camera review for appeals officer as initial fact-finder to assess exemptions).


             Days prior to argument, the Governor’s Office attempted to
supplement the record with a more detailed index. This Court denied the request
because OOR afforded the agency an adequate opportunity to submit evidence
below. However, during argument Requester’s counsel noted the supplemental
index contained more information regarding the records at issue.           Additional
description in an index may assist Requester in his challenges.            Additional
information in an index also may assist OOR and this Court in ascertaining how
the denial grounds apply, and what the records mean. Therefore, while this case is



                                         15
remanded on the existing record as submitted to OOR, Requester may stipulate to
the inclusion of a more detailed index.


                      C. Sufficiency of Final Determination
             This Court is not in a position to evaluate OOR’s decisions as to the
non-protected records (OG 070-133). Because OOR did not sufficiently describe
the records it ordered disclosed (for example, by Bates-label, date, time of
correspondence or author), we cannot evaluate OOR’s reasoning as to each record
ordered disclosed.


             Specifically, this Court cannot correlate each non-protected record
with each of the four reasons OOR gave as grounds for their disclosure: (1) not
pertaining to legal advice (Non-Privileged Records); (2) privileged records to
which the agency waived the privilege by circulating them among individuals
outside the attorney-client relationship (Privilege Waived Records); (3) records
that originated outside the agency, or were sent or received by non-agency
personnel, (Non-Internal Records); or, (4) records that were not deliberative in
nature (Non-Deliberative Records). Absent some correlation between the reason
for rejecting an exemption and the record at issue, the Final Determination is not
amenable to appellate review.


             Therefore, on remand, in addition to applying the correct legal
standards for the attorney-client privilege and the predecisional deliberative
exception, OOR shall explain how each exemption applies to each record with
reference to the Bates-labels. OOR’s reasons for ordering the records disclosed,



                                          16
(Non-Privileged Records, Privilege Waived Records, Non-Internal Records, Non-
Deliberative Records), should correspond to the remaining Bates-Labeled records,
OG 070-133. In that manner, this Court may assess whether OOR committed legal
or factual error, or applied the exemptions in accordance with decisional law.


                                  III. Conclusion
             For the foregoing reasons, we vacate OOR’s final determination, and
remand to OOR to reissue a final determination in accordance with this opinion.
OOR shall reissue a final determination addressing all of the records at issue within
30 days of return of the record from this Court.


             On remand, OOR shall be limited to the current evidentiary record;
however, upon agreement of the parties, the record may be enlarged by receipt of a
supplemental index.


             In the reissued final determination, OOR shall explain its reason for
rejecting the asserted exemptions with specific reference to the records by Bates-
label corresponding to the four categories set forth above in order to permit
appellate review.




                                       ROBERT SIMPSON, Judge




                                         17
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Office of the Governor,                   :
                          Petitioner      :
                                          :
             v.                           :   No. 1940 C.D. 2014
                                          :
Robert H. Davis, Jr.,                     :
                          Respondent      :

                                       ORDER

             AND NOW, this 12th day of August, 2015, the final determination of
the Office of Open Record (OOR) is VACATED and the matter is REMANDED
to OOR to reissue its final determination in accordance with the foregoing opinion,
based on the existing record, with the exception of a more complete index
corresponding to the exemptions contingent upon Respondent’s agreement to such
supplementation.


             OOR shall reissue its final determination within 30 days of the date it
receives the record returned from this Court, including sufficient explanation of its
reasoning for determining records protected or public for each exemption asserted
as to each record, using reference to the records by Bates-label.


             Jurisdiction is retained.




                                 ROBERT SIMPSON, Judge
