Chester Water Authority v. Pennsylvania Dept. of Community and Economic Development, 249 A.3d 1106, 1108 (Pa. 2021), reargument denied (June 17, 2021). Pennsylvania Supreme Court holds that communications between an agency and its private contractors are not internal to the agency and, therefore, cannot be exempt from disclosure under the internal, predecisional deliberation exception set forth in Section 708(b)(10) of the Right-to-Know Law (“RTKL”). However, the Court declined to decide whether documents generated by these third parties and used by agencies in their internal, predecisional deliberations are protected from disclosure.
BACKGROUND
In Chester, the Requester, the Authority, sought documents reflecting communications among the Department of Community and Economic Development (“DCED”) and its consultant and the consultant’s subcontractors related to the potential sale of the Authority.
The Office of Open Records (“OOR”) concluded that records that DCED had exchanged with the consultants were internal to the agency, for purposes of the Section 708(b)(10)(i)(A) exception, due to the contractual relationships among the parties. The Commonwealth Court affirmed, stating:
[A]s it pertains particularly to the internal, predecisional deliberation exception, [the statutory deliberative process] exception “‘benefits the public and not the officials who assert the privilege” by recognizing “‘that if governmental agencies were forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.”
Finnerty v. DCED, 208 A.3d 178, 187 (Pa. Cmwlth. 2019).
On appeal, the Pennsylvania Supreme Court reversed because the consultants were not “agencies” and the communications between DCED and the consultants were not “internal” to DCED.
DISCUSSION
Section 708(b)(10) of the RTKL exempts from the general requirement for disclosure records that reflect:
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, … 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).
In Chester, the Pennsylvania Supreme Court determined that the text of Section 708(b)(10)(i)(A) prohibits disclosure of “internal, predecisional deliberations of an agency, its members, employees or officials,” as well as deliberations between such individuals and another agency and that the consultants were not agencies under the RTKL. Accordingly, the Court concluded that because private consultants providing services as independent contractors do not qualify as “agencies, members, employees, or officials” who may engage in protected internal communications, Section 708(b)(10)(i)(A) does not serve to insulate communications exchanged between a Commonwealth agency and a private consultant from a RTKL request.
The Court recognized and considered the aim to promote the free exchange of deliberative communications against the RTKL’s overarching policy of openness but concluded that the Legislature already conducted the necessary balancing and knowingly chose to exclude communications with consultants and contractors from the protections of Section 708(b)(10)(i)(A).
As noted by the dissent, however, Section 708(b)(10)(i)(A) includes predecisional deliberations relating to, inter alia, a “contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations[,]” and this language indicates that “any” documents used in predecisional deliberations are protected from disclosure by the exception, without reference to their particular source. 65 P.S. § 67.708(b)(10)(i)(A). The majority opinion refused to address this issue, stating: “we leave it for another day . . . whether (or to what degree) the research-memos-documents rubric . . . might serve as an exception to the statute’s specified focus on matters internal to the agency.”
Accordingly, while communications between a school district and a private consultant are not exempt from disclosure under this exemption, documents they generate that are used by the school district for internal, predecisional deliberations may be protected from disclosure.
PRACTICAL ADVICE
Prior to the Supreme Court’s decision in Chester, the Commonwealth Court and Office of Open Records had consistently found that communications with contractors were protected by this exception. See, id., n. 7 (stating: “The OOR’s approach in treating deliberations between agencies and consultants as internal to the agencies, apparently traces to Spatz v. City of Reading, No. 2010-0655, slip op., 2010 WL 3925139 (OOR Sep. 7, 2010).”). At first glance, Chester appears to indicate a major shift in the law that may require school districts to make documents generated by third-party contractors, including those addressing topics of internal, predecisional deliberations, publicly available.
However, school districts will need to look for future cases to see how courts interpret the “research-memos-documents rubric” to see if such documents remain exempt. If such documents remain exempt and Chester is limited to “communications,” then Chester will not have as big of an impact on a school district’s interactions with its contractors. To date, there have not been any court decisions, but the Office of Open Records, in Shannon v. Pennsylvania Department of Education, AP 2021-1351, 2021 WL 4502699, determined that while communications between the agency and an outside consultant were public records, a report generated by an outside consultant and used by the agency to evaluate a charter school’s renewal application was exempt from disclosure under Section 708(b)(10)(i).
Accordingly, upon receipt of a request for such records, school districts should work closely with their solicitor to determine what must be released.
