Predecisional Exception Under Right To Know Law

Pennsylvania Commonwealth Court Expands Internal Predecisional Exception Under Right To Know Law

Posted on June 10th, 2019
by Ryan K. Fields

As a matter of first impression, a three-judge panel of the Commonwealth Court recently considered whether information shared between a government agency and its contractors is considered “internal to the agency,” and therefore exempt from disclosure under the Pennsylvania Right-to-Know Law (RTKL). The Court held that the public interest is best served by considering communications between an agency and its contractor “internal” under the RTKL.


In Finnerty v. Pennsylvania Department of Community and Economic Development, the City of Chester had been determined to be a financially distressed municipality under the Municipalities Financial Recovery Act (Act 47).

In February 2016, after a request for proposals (RFP), the Department of Community and Economic Development (the “Department”) appointed EConsult as an Act 47 Coordinator to assist in addressing the City’s financial problems. Included in EConsult’s response to the RFP was a budget for McNees, Wallace, and Nurick, and Fairmount Capital Advisors, legal and financial subcontractors, respectively, that would assist EConsult in its role as Act 47 Coordinator for the City.

In November 2017, Nolan Finnerty (the “Requester”), a paralegal for the law firm of Conrad O’Brien, P.C., sent a RTK request to the Department seeking copies of several records, including those exchanged between EConsult and its subcontractors regarding to the potential monetization or privatization of the Chester Water Authority.

The Department sent a response to the Requester which denied the request as it pertained to some documents exchanged between the Department, EConsult, and its subcontractors. The Department based its denial on the “internal predecisional deliberations” exception to the RTKL. Requester then filed an appeal to the Office of Open Records (OOR), arguing that the Department failed to meet its burden of proving that the withheld records were exempt from disclosure.

In response to the Requester’s appeal to the OOR, the Department submitted an agency affirmation which detailed the contractual relationships between the Department, EConsult, and its subcontractors, and stated the basis for excluding requested records from its response under the RTKL.

The Department argued that it withheld the records because they contained recommendations and feedback from the contractors for use by the Department in fulfilling its role as Act 47 Coordinator. The Requester argued, however, that only records internal to an agency may be withheld, and that the contractors were not within the agency.

While the OOR Appeals Officer agreed with the Requester that EConsult and its subcontractors were not “agencies” within the meaning of the RTKL, the Officer determined that the requested records were internal to the Department because EConsult and its subcontractors shared a contractual relationship with the Department.

Appeal to Commonwealth Court

The Requester appealed the decision of the OOR to the Commonwealth Court, arguing that records shared with an outside contractor cannot be considered internal to an agency. Requester noted that exceptions to disclosure under the RTKL must be interpreted narrowly, and since the RTKL is silent as to contractors of a non-agency, the internal, predecisional deliberations exception should not apply.

The Department argued that records are internal if the agency has a contractual relationship with whom the communications are shared. Moreover, according to the Department, it would serve no public purpose and would undermine the purposes of the internal, predecisional exception to require disclosure of records shared between an agency, a contractor, and an essential subcontractor.

The Commonwealth Court first noted that the matter was an issue of statutory interpretation, and since the plain language of the RTKL did not explicitly address the matter, the Court must ascertain the intent of the General Assembly. The Court acknowledged that the RTKL is remedial in nature, and that any exception to disclosure be construed narrowly.

However, the Court stated that the internal, predecisional deliberation exception benefits the public by allowing government officials to openly exchange ideas and opinions. According to the Court, “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.”

The Court noted that Act 47 explicitly allowed the Department to seek a consultant to assist with remediating the financial distress of the City of Chester. In so doing, the Department is expected to rely on professional assistance and guidance. The Court stated that agencies will often encounter problems “outside their ken” and it is preferred that they enlist the help of outside experts.

Given the nature and purpose of the contractual relationship between the Department, EConsult, and its subcontractors, the Court held that it serves, rather than hinders, the RTKL’s legislative purpose to interpret “internal to the agency” as including the predecisional, deliberative information exchanged between the Department and its contractors. The Court acknowledged that this interpretation was consistent with other OOR interpretations, as well as those of other courts addressing the Freedom of Information Act, the federal corollary to the RTKL.

What This Means

Municipal bodies often engage contractors and subcontractors to assist with wide-ranging municipal issues. During the process, information is shared between the parties so that the municipality and its residents can be best served. Open Records Officers and municipal decision-makers may now consider whether disclosure of information shared between the municipality and its contractors is exempt under the internal, predecisional deliberations exception to the Right-to-Know Law.

This Municipal Minute is a publication of the KingSpry Municipal Law Practice Group. It is meant to be informational and does not constitute legal advice.