predecisional deliberation exception in Pennsylvania

2017To prove the predecisional deliberation exception, an agency must demonstrate that “(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, 61 A.3d at 379 .

2014To prove the predecisional deliberation exception, an agency is required to show three things: “(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. Department of Corrections, 61 A.3d 367, 379 (Pa.Cmwlth.2013).

2021Dist. v. Miller, 232 A.3d 716 , 724 (Pa. 2020), quoting Pa. State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017). [J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 6 In sum, the Subsection 708(b)(10) exception contains ambiguous statutory language; given the RTKL’s salutary statutory purpose of transparency — for the public to understand what government does and when it should be held accountable — as well as the public presumption clearly embedded by the General Assembly in RTKL Section 305, and our guiding principle of statutory construction that the General Assembly “intends to favor the public

2021Dist. v. Miller, 232 A.3d 716 , 724 (Pa. 2020), quoting Pa. State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017). [J-75A-2020 and J-75B-2020] [MO: Saylor, J.] - 6 In sum, the Subsection 708(b)(10) exception contains ambiguous statutory language; given the RTKL’s salutary statutory purpose of transparency — for the public to understand what government does and when it should be held accountable — as well as the public presumption clearly embedded by the General Assembly in RTKL Section 305, and our guiding principle of statutory construction that the General Assembly “intends to favor the public

2021See Finnerty v. DCED, 222 A.3d 755 (Pa. 2019) (per curiam) (granting Petition for Allowance of Appeal of “[w]hether the Commonwealth Court erred in extending the internal, pre- decisional deliberative exception under Section 708(b)(10)(i) of the Pennsylvania Right to Know Law to public information shared with agency subcontractors having no direct or proper contractual relationship with the agency”) (emphasis added); but see Majority Opinion at 11 (“[T]he statutory provision facially does not apply to communications with outside consultants.”).

2021See Finnerty v. DCED, 222 A.3d 755 (Pa. 2019) (per curiam) (granting Petition for Allowance of Appeal of “[w]hether the Commonwealth Court erred in extending the internal, pre- decisional deliberative exception under Section 708(b)(10)(i) of the Pennsylvania Right to Know Law to public information shared with agency subcontractors having no direct or proper contractual relationship with the agency”) (emphasis added); but see Majority Opinion at 11 (“[T]he statutory provision facially does not apply to communications with outside consultants.”).

2022(Reply Br. at 2 (citing McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014)).) Based upon the OAG’s description of the documents at issue, 8 Requester contends that the “deliberative” aspect is missing, and that the communications must therefore be disclosed.

2021“To prove the predecisional deliberation exception, an agency is required to show three things: ‘(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.’” McGowan, 103 A.3d at 381 (quoting Carey, 61 A.3d at 379). “[A]n agency must explain how the information withheld reflects or shows the deliberative process in which an agency engages during its decision-making.” Carey, 61 A.3d at 379.

2022(OAG’s Br. at 14 (quoting Kaplin, 19 A.3d at 1216 (“[E]ven if the alleged separation of powers problem required the [t]ownship staff to be considered as a separate agency from the [b]oard, the communication could be considered to be predecisional deliberations between agency members and employees of another agency.”)).) Notably, in reply, Requester suggests that the OAG’s characterization of the documents as merely “clerical” or “logistical” in nature defeats its invocation of the predecisional deliberation exception, because communications subject to that exemption must be “deliberative” in c

2022The Appeals Officer repeated her conclusion that the referenced documents were properly withheld under the predecisional deliberation exception, and “contain communications between OAG staff regarding administrative logistics relating to the appeal of Request No. 2020-051.” (OAG Appeals Officer Determination at 7.) The Appeals Officer further cited Kaplin v. Lower Merion Township, 19 A.3d 1209, 1215-16 (Pa. Cmwlth. 2011), for the proposition that a concern over ex parte communications does not negate the application of the predecisional deliberation exemption.

2014See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) (interpreting Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (b)(5)) 5 (stating that the predecisional deliberation exception “covers recommendations, draft documents, proposals, suggestions, and other subjective documents....