From PNA Legal

OPINION

In a disappointing ruling dated July 22, 2009, the Pennsylvania Supreme Court dismissed an open records appeal as improvidently granted. The parties had been waiting for a decision from the Court since March 5, 2007, the date the Court granted the appeal.

Schenck, B., Aplt v. Township of Center; No. 5 WAP 2007

Justice Saylor authored a 15-page dissent, joined by Chief Justice Castille. Schenck v. Township of Center, --- A.2d ----, 2009 WL 2170468 (Pa. Jul 22, 2009) related to access to solicitors' bills under the old Right to Know Law. Beverly Schenck had requested copies of itemized invoices from the township solicitor. Invoices unrelated to litigation matters were provided. With respect to litigation-related invoices, the township provided the records, but redacted all descriptions of the legal services provided.

The question before the Court was whether agencies could do wholesale redaction of these "descriptive" sections of solicitor bills, or whether they had to review entries individually to determine if parts of them could be protected. PNA filed an amicus brief in the case, arguing that although portions of these bills may be protected, the burden must be on the agency to establish that a particular privilege or exemption applied to justify limited redaction. In other words, agencies shouldn't be able to strike out all of the descriptive entries claiming blanket protection.

In 2006, a divided panel of the Commonwealth Court ruled that agencies could engage in this blanket redaction. In 2007, the Supreme Court accepted Schenck's appeal, but over two years later has now dismissed it. The dismissal means that that the lower court decision will stand. In light of the significant revisions to the Right to Know Law in 2008, however, there is some question about the continued viability of the 2006 decision - particularly as it dealt with the "burden of proof" issue.

In a 15-page dissent, Justice Saylor, joined by Chief Justice Castille, argued that the Commonwealth Court's decision should have been reversed. As Justice Saylor explained, "public disclosure laws favor governmental transparency and reflect a belief that non-disclosure undermines the relationship between a government and its citizens."

We agree.