Levy v. Senate of Pennsylvania
65 A.3d 361, 41 Media L. Rep. (BNA) 2036, 619 Pa. 586 (2013)
Rule of Law:
The attorney-client privilege generally does not protect client identities or general descriptions of legal services in government billing records from disclosure under the Right-to-Know Law, but specified exceptions apply when disclosure would reveal confidential communications. Furthermore, an agency does not waive reasons for denying a Right-to-Know Law request if those reasons were not raised in its initial written denial.
Facts:
- On June 22, 2010, Marc Levy, an Associated Press member, sent two written requests to the Senate’s Right to Know Officer seeking all bills, contracts, and payment records for outside lawyers representing Senator Robert J. Mellow or any current/former employee of the Senate Democratic Caucus since January 1, 2009.
- Levy's requests followed media reports that federal authorities had executed search warrants on Senator Mellow’s home and office as part of a grand jury investigation.
- The Senate provided nearly one hundred pages of documents related to five clients, including invoices from various law firms, but large blocks of these documents, including client names and specific descriptions of work, were redacted.
- One redacted document was a letter from counsel to a client, subject-lined 'Re: Grand Jury Investigation,' which confirmed representation and detailed hourly rates and billing, with seven lines describing the 'specific nature of representation' also redacted.
- Other redacted documents where client names were obscured included a Senate Expense Voucher for 'legal services,' a client’s two-sentence letter approving an invoice, and the corresponding invoice, none of which provided detailed content or purpose of the legal work.
Procedural Posture:
- Marc Levy submitted two written requests to the Senate’s Right to Know Officer on June 22, 2010, seeking legal billing records.
- On August 3, 2010, the Senate Open Records Officer responded by providing redacted documents, asserting attorney-client privilege under Section 305(b) of the Right-to-Know Law (RTKL).
- Levy appealed the redactions to the Senate Appeals Officer on August 11, 2010.
- On August 19, 2010, the Senate, in its response to Levy's appeal, asserted additional reasons for redaction, including the attorney-work product privilege, grand jury secrecy, and a criminal investigation exception, alongside the initial attorney-client privilege claim.
- The Senate Appeals Officer, on September 16, 2010, issued a final determination, finding the Senate failed to prove all elements of attorney-client privilege and the factual predicates for the additional asserted exceptions, allowing the Senate to submit further evidence.
- On October 15, 2010, Levy filed a Petition for Review in the Commonwealth Court, appealing the Appeals Officer's determination regarding attorney-client privilege for client names and legal service descriptions.
- The Commonwealth Court, on May 31, 2011, ordered the Senate to file affidavits and submit unredacted documents for in camera review (private review by the court), appointing a special master to review the documents.
- In October 2011, an en banc panel of the Commonwealth Court accepted the special master's recommendations, ruling that the Senate had waived all reasons for redaction not raised in its initial denial, citing `Signature Information Solutions, LLC v. Aston Township`, and largely affirmed the redactions for specific descriptions of legal services but not for general descriptions or client identities (except Senator Mellow's, which was public).
- The Senate filed a petition for allocatur (a request for review by the Pennsylvania Supreme Court), which was granted.
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Issue:
1) Does the attorney-client privilege protect the identities of clients or the descriptions of legal services within government billing records from disclosure under the Pennsylvania Right-to-Know Law? 2) Does an agency waive any reasons for non-disclosure if they are not raised in its initial written denial of a Right-to-Know Law request?
Opinions:
Majority - Justice Baer
No, the attorney-client privilege generally does not protect client identities or general descriptions of legal services in government billing records from disclosure under the Right-to-Know Law, but specific exceptions apply; and no, an agency does not waive reasons for denying a Right-to-Know Law request if not raised in its initial written denial. The Court reaffirmed the general rule that client identities are not protected by the attorney-client privilege, as such identity is rarely relevant to the legal advice sought, citing `In re Seip's Estate`. However, the Court adopted exceptions where divulging the client’s identity would disclose either the legal advice given or the confidential communications provided, such as the 'confidential communication' or 'legal advice' exceptions. This exception applies in both civil and criminal cases and requires a case-specific determination of whether revealing the identity would disclose privileged information. Applying this to the facts, Senator Mellow’s name was not privileged because it was publicly known. For other clients, even with a 'Grand Jury Investigation' subject line, the name was not privileged because substantial confidential communications regarding the 'specific nature of representation' had already been redacted, leaving only the fact of engagement, which is not privileged. General expense vouchers and invoices without content descriptions also did not warrant redaction of client names. Regarding descriptions of legal services, the Court rejected a `per se` rule, holding that the applicability of the privilege turns on whether the content of the writing will disclose information otherwise protected by the attorney-client privilege, such as the client’s motive for seeking counsel, legal advice, strategy, or other confidential communications. General descriptions like 'memo' or 'telephone call' are not privileged. The Court affirmed the Commonwealth Court’s line-by-line analysis that correctly approved numerous redactions of specific confidential communications while allowing disclosure of general descriptions. Finally, the Court reversed the Commonwealth Court’s `Signature Information` Rule, which held that any reasons for denial not raised in the initial written denial are deemed waived. The Court found the relevant statutory language ambiguous on waiver and considered the RTKL's competing purposes: promoting transparency and expedited resolution versus protecting statutorily exempt documents (like privileged records or privacy information). The Court concluded that a `per se` waiver rule undermines the specific legislative intent to shield protected documents from disclosure due to a mere procedural oversight. It also noted concerns for individuals' due process rights under the RTKL, where an agency’s procedural mistake could lead to the disclosure of genuinely protected information. Given the statutory thirty-day limit for an appeals officer’s decision, the Court reasoned that allowing additional reasons for non-disclosure at the appeals officer stage would not unduly delay resolution.
Concurring - Justice Eakin
I agree with the majority’s decision to reject the `Signature Information` waiver rule, but I disagree that the statute is ambiguous on this point. The statute is silent regarding waiver, which is distinct from being ambiguous. The `Signature Information` rule, which states that reasons not raised in an agency’s initial written denial are waived `per se`, contradicts the plain language of the Right to Know Law. This is because the statute explicitly provides for 'deemed denials' where an agency fails to respond within a specified timeframe, meaning no specific reasons for denial are given at all, yet no waiver of reasons occurs in such instances. If listing no reason waives nothing, then listing some reasons but not others should not result in the waiver of unlisted reasons.
Analysis:
This case significantly clarifies the scope of attorney-client privilege in the context of government transparency laws in Pennsylvania, particularly regarding the identities of public employees receiving legal services and the detail in their billing records. By adopting a nuanced approach to the 'confidential communication' and 'legal advice' exceptions for client identity, the Court balances public access with the essential function of the privilege. The most impactful aspect, however, is the rejection of the `Signature Information` waiver rule, which fundamentally alters procedural dynamics in RTKL appeals. Agencies now have greater flexibility to present all legitimate defenses at the appeals stage, reducing the risk of protected information being disclosed due to initial procedural omissions. This shift will likely lead to more thorough reviews at the appellate level and may encourage agencies to be more comprehensive in their initial responses, even if not strictly required.
