Professional Documents
Culture Documents
October 24,2017
As the OOR correctly pointed out in its final determination in Brambila v. pennsylvania
Department of Transportation (Docket No.: AP 2017-0374), an agency must
show: l) the
deliberations reflected are internal to the agency, including representatives; 2)
the deliberations
reflected are predecisional, i.e.,before a decision on an action; and 3) the
contents are
deliberative in character, i.e., pertaining to a proposed action.
To establish that records are deliberative, an agency must show that the information
relates to the deliberation of a particular decision . McGowan v. pa. Dep,t of
Envtl.
Prot., 103 A.3d 374,378-88 (Pa. Commw. Ct. 2014). The term "deliberation', is
Office of Open Records
October 24,2017
Page 2.
gsnerally defined as "[t]he act ofcarefully considering issues and options before
making a decision or taking some action..." (citations omitted).
Because the Agency fails to establish that the record was internal to the agency and that
the record contained deliberation, the Agency cannot stablish that the record is subject to the
"predecisional deliberation" exception under Section 708(bXl O)(iXA).
However, it cannot be credibly asserted that the document is internal when, as is the case
here,the contents of the record are disclosed to the public.
The Agency shared the contents of the 2008 Feasibility Study with the Appropriations
Committees of the Pennsylvania House of Representatives and the Senate of Pennsylvania for
the purpose of preparing a Fiscal Note on the subject bill. Fiscal Notes prepared by the
Appropriations Committees fall within the meaning of a "legislative record" pursuant to the
RTKL and must be disclosed upon request. See 65 P.S. $ 67.102. The House and Senate Fiscal
notes, prepared in consultation with the Department of Transportation and utilizing the Study,
are available on the Pennsylvania General Assembly website at the following web address:
tvpe:B&bn:354
For the convenience of the OOR, copies of the House and Senate Fiscal Notes are
included in this appeal. The Fiscal Notes clearly indicate communication between the
Department and the Committees. At the time of the communication, the Department staff most
certainly understood that the records provided to the Committees would be incorporated into the
Committee work product and such Fiscal Notes would be made available to the public.
b. Deliberative Content:
For purposes of this appeal, it is a given that the Study was prepared prior to a decision
(i.e. during the deliberative process). According to the Department:
[T]he Study examines multiple options and contemplates the best course of action
regarding the impact of adopting the federal REAL ID regulations. The Study was
used to weigh options and what course of action to take regarding the federal
REAL ID regulations.
Office of Open Records
October 24,2017
Page 3.
Yet, the OOR's in camera review of the Study showed that the document contained no
deliberations whatsoever. The Final Determination of the OOR found:
[T]he Study contains the underlying factual bases for the deliberations, but not the
deliberations themselves. Therefore, the information contained in the Study is not
deliberative in character. Further, there are no opinions or recommendations
contained within the Study, rather it is factual data related to the available
options to pursue. (emphasis added).
The deliberative process privilege benefits the public and not the officials who
assert the privilege. The privilege recognizes that if govemmental 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." Joe
v. Prison Health Services, lnc.,782 A.2d24,33 (Pa.Cmwlth.200l).
In McGowan, the court remanded the proceedings to the OOR to determine whether
certain records "contain purely factual material." Id. at 387. To the extent that "factual material
exists. . . fwhich would not] expose the deliberative process within an agency" the exception
does not apply and agency must disclose the contents of the record. Id. at 388.
In the instant case, the Study contains no "exchange ideas and opinions" (and is, in fact
devoid of "deliberation"). As such, releasing the Study cannot be said to force the Agency to
operate "in a fishbowl." This holds especially true when the contents of the record have already
been shared with the public in Fiscal Notes (which must be released under the RTKL upon
request) prepared by the House and Senate Appropriations Committees.
rf. rF rF
The Agency clings to the notion that the Study is protected from disclosure simply
because they assert that it was "used in the predecisional deliberations" of the agency. See 65
P.S. $ 67,708 (bXl0XiXA). As explained above, the exception from disclosure does not sweep
as broadly as the Agency would suggest. To adopt such a view would frustrate the purpose of
the RTKL. As articulated in the OOR's final determination cited above:
Office of Open Records
October 24,2017
Page 4.
The objective of the Right to Know Law ... is to empower citizens by affording them
access to information concerning the activities of their government., SWB Yankees.
L.L.C. v. Wintermantel,45 A3d7029,7047 (Pa.2012). Further, this important open
government law 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." Bowling v. Office of Open Records ,990 A.2d
873,824 (Pa. Commw. Ct.2070), affd 75 A.3d 453 (Pa. 2013).
For these reasons, I believe that the Agency denial is in error. The study does not fall
within the "predecisional deliberation" exception in the RTKL and it must be disclosed upon
request.
Respectfully submitted,
MMG:mdc