The Pennsylvania Supreme Court recently clarified the scope of the “deliberative process exception” to agencies’ obligation to disclose records pursuant to Pennsylvania’s Right to Know Law.
The case takes place in the context of the ongoing “water wars” in southern Chester and Delaware Counties. For 150 years, the Chester Water Authority has provided water to municipalities across the area, including the City of Chester. Since 1995, the City has been designated a distressed municipality under the Financially Distressed Municipalities Act. Pursuant to the Act, the Pennsylvania Department of Community and Economic Development (DCED) has been tasked with formulating a plan to address the financial problems of the City. To help it develop its plan, DCED engaged Econsult, a private consulting firm. Econsult, in turn, subcontracted with a private financial advisor and law firm. Econsult advised the City that selling the Authority would address its funding deficit.
In 2017, a buyer surfaced. Aqua America/Essential Utilities, Inc. presented an unsolicited bid to buy the utility. The City saw dollar signs, but the Authority rejected the proposal. The Authority’s rejection of Aqua’s bid sparked more than a dozen lawsuits.
The latest salvo centers on the Authority’s request to DCED for records under the Right to Know Law (RTKL). The Authority submitted a RTKL request for communications related to the potential sale of the Authority between DCED, Econsult, and Econosult’s financial advisor and law firm. DCED withheld the records, claiming they were exempt from disclosure as “internal predecisional deliberations” of the agency, its members, employees and officials.
The Authority appealed the denial to the Office of Open Records (OOR). OOR agreed with DCED that the records were “internal the agency” on account of the contractual relationships among the parties. In so finding, OOR looked to federal court decisions interpreting the inter-agency/intra-agency communications exemption of the federal Freedom of Information Act (FOIA). Federal courts interpreting this FOIA exemption have adopted a functional approach to the definition of intra-agency, extending the exemption to communications between government agencies and the consultants they hire. These courts reason that allowing agencies to withhold their communications with consultants promotes candid and honest communications between agency and consultant, communications that could be stifled if the parties feared they would not remain confidential.
The Commonwealth Court affirmed the OOR’s holding, stressing the desirability of open communication between agency and consultant. “If governmental agencies were forced to operate in a fishbowl,” the Commonwealth Court reasoned, “the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.”
The Pennsylvania Supreme Court disagreed and reversed. It instead held that the statutory language of the RTKL simply does not support adopting a broader, functional approach to the meaning of internal deliberations. Per the Court, the RTKL prohibits disclosure of “internal, predecisional deliberations of an agency, its members, employees or officials,” as well as communications between agencies. The Court held that “internal” means just that—internal, “relating to, or occurring on the inside,” that which takes place within the organization. Accordingly, the exemption does not apply to communications with outside consultants. To the extent that a balancing between the free exchange of deliberative communications and the RTKL’s policy of openness is required, the General Assembly has already undertaken it.
The Court’s holding in leaves some questions unanswered. While Chester Water Authority makes clear that communications with a single-use outside consultant are not “internal” to an agency, it does not address communications with an outside firm that serves as a municipality’s engineer or zoning officer, both of which may be considered “officials” under various municipal codes.
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