PSBA 2021 Bulletin November/December PSBA 2021 Bulletin November/December - Page 59

it ’ s the law precludes protection under the exception . See , e . g ., Carey ( holding agency did not establish exception because it did not set forth facts to substantiate all three elements ). Id ., 114 A . 3d at 1123 .

it ’ s the law precludes protection under the exception . See , e . g ., Carey ( holding agency did not establish exception because it did not set forth facts to substantiate all three elements ). Id ., 114 A . 3d at 1123 .

The internal predecisional deliberations exemption described above presupposes the question as to what is a “ predecisional deliberation .” That question will often be answered by the circumstances and the records at issue . In other words , does the record at issue in fact reflect a predecisional deliberation ?
To show that the record at issue reflects or shows the deliberative process in which the agency engaged during decision-making , first the agency must show that the communication occurred prior to a deliberative decision , and second , it must submit evidence of specific facts showing how the information relates to the deliberation of a particular decision . Carey v . Pennsylvania Dept . of Corrections , 61 A . 3d 367 ( Cmwlth . 2013 ). As noted by the Commonwealth Court , only information that constitutes confidential deliberations of law or policymaking , reflecting opinions , recommendations or advice is protected as “ deliberative ” under the exception . Pennsylvania Dept . of Educ . v . Bagwell , 114 A . 3d at 1122 – 23 , citing Carey v . Pennsylvania Dept . of Corrections , 61 A . 3d at 378 . In order to demonstrate that documents are deliberative in character , an agency must submit evidence of specific facts showing how the information relates to deliberation of a particular decision . Id ., 114 A . 3d at 1123 , citing McGowan v . Dep ’ t of Envtl . Prot ., 103 A . 3d 374 , 383 ( Pa . Cmwlth . 2014 ) ( quoting Carey , 61 A . 3d at 379 ).
In terms of evidence , the court noted that affidavits that are conclusory or merely parrot the exemption do not suffice . Pennsylvania Dept . of Educ . v . Bagwell , citing Office of the Governor v . Scolforo , 65 A . 3d 1095 ( Pa . Cmwlth . 2013 ). The Bagwell court stated :
As we explained in Scolforo :
[ i ] t is not enough to include in the [ a ] ffidavit a list of subjects to which internal deliberations may have related . The [ a ] ffidavit must be specific enough to permit the OOR or this Court to ascertain how disclosure of the entries would reflect the internal deliberations on those subjects . Because this [ a ] ffidavit is not detailed , but rather conclusory , it is not sufficient , standing alone , to prove that the [ records ] are exempt from disclosure . Pennsylvania Dep ’ t of Educ . v . Bagwell , 114 A . 3d at 1123 .
In the context of the predecisional deliberations exemption , the agency ’ s affidavit “ must be specific enough to permit the OOR or this Court to ascertain how disclosure of the [ record ] would reflect the internal deliberations .” Payne v . Pennsylvania Dep ’ t of Health , 240 A . 3d 221 , 226 ( Pa . Commw . Ct . 2020 ) citing Office of the Governor v . Scolforo , 65 A . 3d at 1104 .
For examples of such records , the following decisions may be instructive .
In Glunk v . Department of State , 102 A . 3d 605 ( Cmwlth . 2014 ), a case in which a physician sought disclosure of communications referring to him following an initial , dismissed disciplinary action and a subsequent disciplinary proceeding , a chain of emails between agency officials and others referring to the physician , were held to fall within the predecisional deliberations exemption , where the email chain was in reference to future appropriate action that the state medical board should take regarding the physician . Id .
In Office of Governor v . Scolforo , 65 A . 3d 1095 ( Cmwlth . 2013 ), the Commonwealth Court held that the Office of Open Records ( OOR ) erred by holding , as a matter of law , that a calendar entry of an agency executive , such as the governor , was facially not deliberative in character and therefore , could not be exempt from disclosure under the predecisional deliberative exception because such information , in itself , would not reveal the actual deliberations . The court held that calendars could contain the topic of the meeting , along with specific points that were to be discussed , or proposed actions , thus being reflective . Id . The court held that the fact that information was contained on the governor ’ s calendars , instead of a memo , did not determine the character of the information or whether it was subject to the predecisional deliberative process exception . Thus , the fact that the information was placed on the calendars did not , as a matter of law , mean that it was impossible for it to be protected under the exception . The court held that the court must look at the substance of the information and not the form in which the information was placed for purposes of the deliberative process exception . Id .
In Department of Public Welfare v . Chawaga , 91 A . 3d 257 ( Cmwlth . 2014 ), the Commonwealth Court held that the internal predecisional deliberations exemption did not apply to preclude disclosure of a Department of Public Welfare ( DPW ) performance audit report where DPW did not offer the particular decision to which the performance audit report was predecisional or explain how the information withheld reflected a deliberative process . Id .
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