PSBA 2021 Bulletin November/December PSBA 2021 Bulletin November/December - Page 60

it ’ s the law
In many instances , requests for public records will involve documents falling within the internal predecisional deliberation exception .

it ’ s the law

In many instances , requests for public records will involve documents falling within the internal predecisional deliberation exception .
In Carey v . Pennsylvania Dept . of Corrections , the Commonwealth Court held that the Department of Corrections ’ ( DOC ) records of communications of DOC and government officials related to mass inmate transfer were not exempted despite fact that the records concerned information internal to the DOC , because the DOC did not establish that the communications were deliberative or predated an operative decision . Id .
In Payne v . Pennsylvania Dep ’ t of Health , the court held that the scores given to an application for a medical marijuana grower-processor permit were not protected under the exception because the Department of Health ’ s ( DOH ) affidavit failed to establish the elements of the predecisional deliberations exemption . In particular , the court held that although the scores were internal and predecisional , the DOH also acknowledged that it had released score sheets and final scores of dozens of other successful and unsuccessful applicants whose applications were deemed complete . Thus , the court questioned how the DOH could claim that such scores were confidential . The court further noted that the DOH ’ s affidavit failed to explain how the scores , either preliminary or final , as distinguished from the evaluation committee ’ s notes or comments , reflected or disclosed the DOH ’ s deliberations or deliberative process in which an agency engaged during its decision-making . Id . The court stated :
We cannot discern how the score or scores , either preliminary or final , as distinguished from the evaluation committee ’ s notes or comments , disclose the MM Office ’ s deliberations or deliberative process . Even if one could somehow successfully divine the deliberative process of the MM Office from the score sheet , the same would certainly be obvious from any of the dozens of other applicants ’ score sheets which were released . In sum , while the scores are internal and predecisional , they are neither confidential nor deliberative . Payne v . Pennsylvania Dep ’ t of Health , 240 A . 3d 221 , 227 – 28 ( Pa . Commw . Ct . 2020 )
Although the question as to whether a particular document reflects a predecisional deliberation is an open one to be determined by the facts at issue , the question as to what is “ internal ” was recently answered by the Pennsylvania Supreme Court . In a decision rendered in April of this year , the Pennsylvania Supreme Court held that the statutory deliberative-process exception does not extend to records exchanged between a commonwealth agency and private consultants , concluding that the deliberative-process privilege applies only to records that reflect communications between and among an agency ’ s members , employees and officials , and therefore , they can be characterized as “ internal ” in a narrow and strict sense . Chester Water Auth . v . Pennsylvania Dep ’ t of Cmty . & Econ . Dev ., 249 A . 3d 1106 , 1113 ( Pa . 2021 ), reargument denied ( June 17 , 2021 ), 2021 WL 1740596 .
Writing for the Court , Justice Saylor stated :
Accordingly , the statutory provision facially does not apply to communications with outside consultants . See generally N . Hills News Record v . Town of McCandless , 555 Pa . 51 , 58 , 722 A . 2d 1037 , 1040 ( 1999 ) ( explaining that , where the provisions of a statute are clear , courts “ are forbidden from diverging from the plain meaning under the mere pretext of pursuing the spirit of the enactment .”). And the requirement of narrow construction further solidifies the interpretation that private consultants providing services as independent contractors do not qualify as agencies , members , employees , or
58 PSBA Bulletin November / December 2021