Schenck v. TP. OF CENTER, BUTLER COUNTY

893 A.2d 849, 2006 Pa. Commw. LEXIS 88

• Court: Commonwealth Court of Pennsylvania
• Decided: February 28, 2006
• Status: Published

Opinions

OPINION BY

Judge SIMPSON.

This case involves a request under the law commonly known as the Right to Know Act (Act),¹ by an adverse party for a description of billed litigation services rendered to a municipality by its solicitor. Beverly J. Schenck (Plaintiff) appeals from an order of the Court of Common Pleas of Butler County (trial court) essentially denying disclosure of a description of legal services rendered in litigation.

Plaintiff filed a request with the Township of Centre seeking copies of itemized invoices from its solicitor, Michael D. Gallagher, for the period from December 2002 through 2003. The requested invoices included bills for the solicitor’s services in a pending action filed by Plaintiff against four members of the Township’s Board of Supervisors.²

Thereafter, the Township sent Plaintiff copies of the solicitor’s invoices that related to general legal services. However, the Township indicated that further review of invoices for litigation services was necessary to determine whether any entries were subject to attorney-client privilege, attorney work product privilege or deliberative process privilege and thus not subject to access under the Act.

Later, the Township sent Plaintiff copies of the solicitor’s invoices that related to litigation matters, explaining that the “description of services rendered” for each charge was redacted pursuant to section 3.2 of the Act, 65 P.S. § 66.3.2.³ The copies provided to Plaintiff reflected the identity of the case for which the services were provided, the dates that the services were provided, the name of the attorney providing the services, the time expended, the hourly rate and the total amount charged. The Township also attached a letter from the solicitor to the Township advising that the described services are not subject to access under the Act:⁴

Ultimately, Plaintiff filed a complaint against the Township,⁵ seeking an order directing the Township to provide un-re-dacted copies of the invoices and awarding attorney fees and costs. Thereafter, the Township filed a motion for judgment on the pleadings. Plaintiff filed a motion for summary judgment, and the Township asked the trial court to consider its motion for judgment on the pleadings as a cross-motion for summary judgment.

The trial court heard argument, but did not receive evidence. During argument, Plaintiffs counsel asserted that the Township needed to produce the invoices to prove that the documents were not accessible. However, special counsel now representing the Township argued that production of the invoices was not'required. According to Township’s special counsel, this controversy involved only a question of law, that is, whether the services description of a solicitor’s invoice is subject to access under the Act.

The trial court determined the description of services portion of litigation invoices constitutes attorney work product and does not qualify as a public record. It therefore granted summary judgment to the Township, thereby affirming the action taken by the Township.

A timely appeal was taken to this Court.⁶ Plaintiff assigns numerous trial court errors, including: error by making a decision without examining the un-redacted invoices; error by failing to identify a statutory basis for its decision and by relying on inappropriate cases; error by permitting the solicitor to raise privilege properly belonging to the client municipality; and, error by denying access in the absence of just and proper cause. Plaintiff also asserts she was denied due process because the solicitor was biased and did not immediately “recuse himself’ from the Township’s initial determination, thereby-perpetuating a conflict of interest.

The primary issue we decide is whether the description of litigation-related legal services in a solicitor’s invoice is shielded from access under the Act. We hold that it is, although for reasons different than those upon which the trial court relied. Brown v. Blaine, 883 A.2d 1166 (Pa.Cmwlth.2003) (Commonwealth Court may affirm trial court for any reason so long as the basis of decision is clear).

A party asserting right to disclosure of documents pursuant to the Act must establish that the requested documents were generated or kept by “an agency” and that they constitute “public records.” Goppelt v. City of Phila. Revenue Dep't, 841 A.2d 599 (Pa.Cmwlth.2004). The party seeking access bears the burden of establishing that the requested material bears the characteristics of a public record. Id.

Here, there is no dispute that the invoices in question bear the characteristics of a “public record” as defined in the Act. However, this does not conclude our inquiry, as certain types of privilege may exclude the invoices from the definition. See LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001) (attorney work product and materials reflecting pre-decisional, internal deliberative aspects of agency decision making not qualify as public records under the Act).

Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. 1 Pa.C.S. § 1932(a). Statutes in pari materia shall be construed together, if possible, as one statute. 1 Pa.C.S. § 1932(b). Statutes are to be construed in harmony with the existing law and as part of a general and uniform system of jurisprudence. Northern Tier Solid Waste Auth. v. Dep’t of Revenue, 860 A.2d 1173 (Pa.Cmwlth.2004).

The Act is one of a series of legislative enactments designed to provide a comprehensive format governing public access to the meetings and hearings of public agencies. Judge v. Pocius, 28 Pa.Cmwlth. 139, 367 A.2d 788 (1977). The other statutes are now embodied in the Sunshine Act.⁷ Id. Because they relate to the same class of things, information about actions by public agencies, the Act and the Sunshine Act are in pari materia. See Mellin v. City of Allentown, 60 Pa.Cmwlth. 114, 430 A.2d 1048 (1981) (open meeting laws and right to know laws in pari materia with provisions of Third Class City Code addressing open meetings and open journals); 1974 Op. Att’y Gen. Pa. 175 (Right to Know Act presumed to be read in pari materia with Sunshine Act). Indeed, this has been the practice for Commonwealth agencies since 1974. 1974 Op. Att’y Gen. Pa. 175 (attorney general opinion regarding Act binding upon Commonwealth agencies, advisory as to other governmental bodies); see 1977 Op. Att’y Gen. Pa. 40, 4 D. & C.3rd 218 (Pa.Dept.Just.1977). Therefore, they shall be construed together, if possible, as one statute.

A provision in the Sunshine Act permits an agency to conduct some of its business in executive session, outside the view of the public. Thus, 65 Pa.C.S. § 708(a)(4) permits an executive session so the agency may “consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or issues on which identifiable complaints are expected to be filed.” This provision acknowledges that the public would be better served if the governing body had private discussions on matters in litigation prior to public resolution. Reading Eagle Co. v. Council of City of Reading, 156 Pa.Cmwlth. 412, 627 A.2d 305 (1993). If knowledge of litigation information became public, it would impair a municipality’s ability to defend those matters. Id.

This statutory exception from the disclosure provisions of the Sunshine Act broadly relates to information in connection with pending or impending litigation. It is not limited to attorney work product.

Construing the Act and the Sunshine Act together as one statute and as part of a uniform system of jurisprudence, this exception from disclosure applies here. Indeed, it would be absurd if litigation information from the solicitor was protected the evening of a municipal meeting, but it could be accessed the next morning through a description of litigation-related legal services in an invoice. We presume such an unreasonable result is not intended. 1 Pa.C.S. § 1922(1). Under this construction, it is not necessary for a trial court to read every invoice and evaluate every described service for the presence of attorney work product. Instead, all information from the solicitor relating to pending or impending litigation is inaccessible.

Turning now to the specific arguments raised by Plaintiff, we hold they lack merit. The Township did not err when it denied access to the description of litigation-related services, because the litigation information provision of the Sunshine Act is construed to be part of all statutes with which it is in pari materia, including the Act. The solicitor properly protected the information in the absence of his client’s consent to disclose it. Rule 1.6(a) of the Rules of Professional Conduct, 204 Pa. Code § 81.4, Rule 1.6(a) (Explanatory Comment [3]: “The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” (emphasis added); Explanatory Comment [4]: “Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” (emphasis added).) See also, 1977 Op. Att’y Gen. Pa. 40.

As to the request for, hearing on remand, we decline the invitation. As previously discussed, it is not necessary for someone to cull through each service described in each invoice searching for attorney work product.

Plaintiff also makes a brief argument that Section 704(2) of the Second Class Township Code, 53 P.S. § 65704(2),⁸ which requires a township treasurer to keep accounts open for inspection by supervisors and citizens, also supports access. This argument was not made to the trial court, nor was it preserved in the Statement of Matters Complained of on Appeal. Moreover, the argument is merit-less, as provisions in the Second Class Township Code relating to open journals shall be read in pari materia with the Act and the Sunshine Act. See Mellin v. City of Allentown.

Regarding the claim of denial of due process for failure of the solicitor to withdraw earlier, we discern no merit, for several reasons. First, there is no indication in the record that Plaintiff sought the solicitor’s disqualification. Second, as to the merits, there is no obvious reason why the interests of the solicitor and the Township are in conflict. Instead, both seem equally motivated to protect information about current litigation. Because Plaintiff fails to explain the conflict or to refer to any Rule of Professional Conduct or of Disciplinary Enforcement which the solicitor supposedly violated, there is no basis for relief on the theory of conflict of interest. Third, we conclude the solicitor’s advice was correct.

For all the foregoing reasons, we hold that the description of litigation-related services in a solicitor’s invoice is not accessible under either the Act or the Sunshine Act in the absence of consent from the client municipality. Therefore, we affirm the trial court’s grant of summary judgment to the Township.⁹

ORDER

AND NOW, this 28th day of February, 2006, the order of the Court of Common Pleas of Butler County in the above-captioned matter is AFFIRMED.

1 . Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.9.

2 . In that action, the trial court sustained several of the Township's preliminary objections on July 14, 2003. Nine days later, Plaintiff filed her request under the Act. The trial court subsequently dismissed Plaintiff’s complaint by order dated February 26, 2004. Plaintiff unsuccessfully appealed to this Court, and to the Supreme Court, which denied appeal by allowance. (Township’s brief at. 1.)

3 .Section 3.2 of the Act was added by the Act of June 29, 2002, P.L. 663. It provides that where information not subject to access is an integral part of the public record and cannot be separated, the agency shall redact the information that is not subject to access and grant access to the remainder of the public record.

4 .Plaintiff filed exceptions to the partial denial of her request, contesting the solicitor’s assertions that the redacted information was not accessible under the Act. By letter, the Township informed Plaintiff that at its regularly scheduled meeting of September 10, 2003, the Board of Supervisors voted to deny her exceptions. Thereafter, attorney Manning J. O’Connor II, who was retained by the Township as special counsel, served Plaintiff with findings of fact and conclusions of law in support of the Board of Supervisors' decision. Reproduced Record (R.R.) at 52a-64a. In pertinent part, the Board of Supervisors found that the solicitor’s invoices reflect summaries of legal advice given to the Township and contain descriptive entries that include mental impressions, strategy, tactics and other matters that are subject to the attorney-client privilege, the work product privilege and/or the deliberative process privilege. (Findings of Fact, Nos. 24, 33, 34.) Thus, the Board of Supervisors concluded that the Township properly redacted that information.

5 . Section 4 of the Act, 65 P.S. § 66.4(b), provides that a requester may file a petition for review, or other document as may be required by local rule, with the court of common pleas, within thirty days of the denial of a request or final decision affirming the denial of a request by a non-Commonwealth agency.

6 . Our standard of review in a Right to Know Act case is whether an error of law was committed, constitutional rights were violated, or necessary findings of fact are supported by substantial evidence. Inkpen v. Roberts, 862 A.2d 700 (Pa.Cmwlth.2004). As to questions of law, the scope of review is plenary. Id. We review the agency’s decision. See Section 4 of the Act, as amended by Act of June 29, 2002, P.L. 663, 65 P.S. § 66.4(d) (record on appeal consists of request, response, exceptions, any agency hearing transcript, and agency's final determination).

7 . 65 Pa.C.S. §§ 701-716. The former Open Meeting Law, Act of July 19, 1974, P.L. 486, as amended, formerly 65 P.S. §§ 261-269, was repealed by the former Sunshine Act, Act of July 3, 1986, P.L. 388, as amended, formerly 65 P.S. §§ 271-286, which in turn was repealed and reenacted in codified form by the Act of October 15, 1998, P.L. 729.

8 . Act of May 1, 1933, P.L. 103, as reenacted and amended.

9 . In the absence of any authority that the Pennsylvania Rules of Civil Procedure in general, and the discovery rules in particular, apply to this statutory appeal under the Act, we decline to embrace the dissent's discussion regarding discovery rules and cases applying them.