Exemption 708(b)(10) describes certain internal records that may be withheld in response to a Right-to-Know Law request. Deputy Chief Counsel Magdalene Zeppos-Brown provided the legal analysis. As of November 18, 2024, this exemption has been cited in 1,270 OOR appeals.  

Section 708(b)(10) exempts:

• A record that reflects: (A) The internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations. (B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation.
• Subparagraph (i)(A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with 65 Pa.C.S. Ch. 7 shall be a public record.
• This paragraph shall not apply to a written or Internet application or other document that has been submitted to request Commonwealth funds.
• This paragraph shall not apply to the results of public opinion surveys, polls, focus groups, marketing research or similar effort designed to measure public opinion.

A series of case law explains the categories of records to which this oft-cited exemption applies. A 2011 case determined three elements must be satisfied: 1) the records must be internal to a governmental agency; 2) the deliberations reflected must be predecisional, i.e., before a decision on an action; and 3) the contents must be deliberative in character, i.e., pertaining to proposed action.[1]

Some case law further defines “internal”:

• Internal records may include those shared among agencies. “Records satisfy the ‘internal’ element when they are maintained internal to one agency or among governmental agencies.”[2]
• A communication is no longer internal once a non-governmental actor is included, even if they are a consultant or contractor. “[P]rivate consultants providing services as independent contractors do not qualify as agencies, members, employees, or officials who may engage in protected internal communications”.[3]
• Even records created externally may be considered internal. The “origination of records from outside an agency does not preclude application” of the exemption.[4]

Case law also helped shape the definition of “deliberations”:

• Broadly, a record may be considered deliberative if it “makes recommendations or expresses opinions on legal or policy matters and cannot be purely factual in nature.”[5]
• The term “deliberation” is generally defined as “[t]he act of carefully considering issues and options before making a decision or taking some action….”[6] 
• In addition, to prove that a record is exempt under this section, an agency must explain how the information withheld reflects or shows the deliberative process in which an agency engages during its decision-making.[7]
• This exemption may not give agencies the ability to withhold the entire record that is only partially deliberative in nature.  If factual material can be disclosed without revealing deliberation, that portion of the record must be granted.[8] Factual material can still qualify as deliberative information if its “disclosure would so expose the deliberative process within an agency that it must be deemed excepted”; or in other words, when disclosure of the factual material “would be tantamount to the publication of the [agency’s] evaluation and analysis.”[9]

Section (i)(B) specifies that the law exempts disclosure of “strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation.” Less case law is dedicated to this provision. A few cases have emphasized the agency’s burden to prove that the record reflects its strategy.[10]

Section (ii) of b(10) specifies that records reflecting “internal, predecisional deliberations” are subject to public disclosure when presented to a quorum for deliberation.[11] This applies even when records are not presented at a public meeting.[12] The OOR has found that any record presented to a quorum for the purpose of making a decision is subject to production.[13]

---

[1] Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011).

[2] West Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 398 (Pa. Commw. Ct. 2015); see also Off. of the Governor v. Davis, 122 A.3d 1185 (Pa. Commw. Ct. 2015).

[3] Chester Water Auth. v. Pa. Dep’t of Community and Econ. Dev., 249 A.3d 1106, 1113 (Pa. 2021).

[4] Davis, 122 A.3d at 1193 (citing Bagwell v. Pa. Dep’t of Educ., 76 A.3d 81 (Pa. Commw. Ct. 2013)).

[5] Kaplin, 19 A.3d at 1214.

[6]  Black’s Law Dictionary 492 (9th ed. 2009); see also Heintzelman v. Pa. Dep’t of Cmty. & Econ. Dev., OOR Dkt. AP 2014-0061, 2014 PA O.O.R.D. LEXIS 254, aff’d, No. 512 C.D. 2014, 2014 Pa. Commw. Unpub. LEXIS 644 (Pa. Commw. Ct. 2014).

[7] Twp. of Worcester v. Off. of Open Records, 129 A.3d 44, 61 (Pa. Commw. Ct. 2016).

[8] McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374, 382-83 (Pa. Commw. Ct. 2014), Trentadue v. Integrity Comm., 501 F.3d 1215, 1228-29 (10th Cir. 2007).

[9] McGowan,103 A.3d at 387 (quoting Trentadue, 501 F.3d at 1228-29).

[10] Wereschagin v. City of Pittsburgh, OOR Dkt. AP 2024-1827, 2024 PA O.O.R.D. LEXIS 2579; Camburn v. Borough of Pottstown, OOR Dkt. AP 2015-0315, 2015 PA O.O.R.D. LEXIS 509; Williams v. Middlesex Twp., OOR Dkt. AP 2015-0062, 2015 PA O.O.R.D. LEXIS 166.

[11] Gale v. Ridley Park Borough, OOR Dkt. AP 2024-2238, 2024 PA O.O.R.D. LEXIS 2533; Hale v. Borough of Gettysburg, OOR Dkt. AP 2016-0642, 2016 PA O.O.R.D. LEXIS 1128; Bidlingmaier v Jenkintown Borough, OOR Dkt. AP 2021-2605, 2022 PA O.O.R.D. LEXIS 144.

[12] Esposito v. Pennridge Sch. Dist., OOR Dkt. AP 2019-1521, 2019 PA O.O.R.D. LEXIS 1532.

[13] Mahon v. Westmoreland Cnty., OOR Dkt. AP 2024-0644, PA O.O.R.D. LEXIS 961; Longo v. Phoenixville Area Sch. Dist., OOR Dkt. AP 2020-0504, 2020 PA O.O.R.D. LEXIS 1361.

In certain situations, an agency may withhold records documenting another agency’s investigation. 2024-1042

A township must provide copies of the checks requested, even if those checks are stored by a bank. Where an agency does not have physical possession of a record of the agency, but it is held by a third-party custodian, the agency is required to obtain the responsive record from the custodian. 2024-1663

Seven appeals were filed regarding records associated with the shooting at the Butler County rally for former President Donald Trump.  2024-1893 2024-1982 2024-1981 2024-1947 2024-1969 2024-2000 2024-2038

A $32,050 fee was invalid due to the cost estimation not being “more than a guess”. However, the agency was permitted to seek prepayment of fees based upon a good faith estimate. 2024-0956

Similar requests are not necessarily disruptive. An agency must provide evidence that a request is disruptive. 2024-1625

The Office of Open Records has jurisdiction over records made public by the Election Code. Campaign Finance Reports are available to any person, regardless of qualified elector status. 2024-1542

Exemption 708(b)(9) describes certain draft records that may be withheld in response to a Right-to-Know Law request. Appeals Officer Topé Quadri provided the legal analysis. As of August 6, 2024, this exemption has been cited in 166 OOR appeals.  

Section 708(b)(9) exempts:

The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.

Most of the final determinations dealing with this exemption ascertain if the agency proved that the instant record falls into a cited category. Namely, an agency must provide factual support and non-conclusory evidence.[1]

A few notable pieces of case history on this exemption:

• It only covers drafts that fall in the specific categories set forth.  For example, it does not apply to drafts of transcripts[2], but draft zoning ordinances are exempt[3].
• Once a draft is presented or shared in a public capacity, the exemption no longer applies, even if it is subject to modification at a later date.[4]
• In an email discussing a draft document, the exemption may apply to the attached draft, but not to the emails themselves.[5]

---

[1] W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 397 (Pa. Commw. Ct. 2015).

[2] Public Interest Legal Foundation v. City of Phila. Office of City Comm’rs., OOR Dkt. AP 2018-0256, 2018 PA O.O.R.D. LEXIS 562.

[3] Watt v. State College Borough, OOR Dkt. AP 2020-0113, 2020 PA O.O.R.D. LEXIS 1777.

[4] Phila. Public Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 455,  451-52 (Pa. Commw. Ct. 2012).

[5] Shepherd v. City of Phila. Dep’t of Public Health, OOR Dkt. AP 2021-0872, 2021 PA O.O.R.D. LEXIS 1298.

2024-0939: The clearance procedures of a prison x-ray body scanner are exempt, but the testing/maintenance records of a prison x-ray machine are accessible under the RTKL.

2024-1033: A list of property addresses and corresponding terminology used by a city councilmember are not exempt under the RTKL as personal notes or working papers.

2024-0921: A county was not required to contact a nonprofit tourism promotion agency for relevant information when responding to a RTKL request because there was no contractual relationship.

2024-1269: Agency did not show that information regarding the amount and type of ammunition bought and used by a sheriff’s office was exempt under the public safety exemption.

2024-1311: Request was filed by an online organization/business using an anonymous request feature.  Agency was not required to further respond to request when the requester did not confirm identity or US residency.

2024-1099: Inmate names including admission and release dates are accessible under the RTKL.

2024-0701: The names of township police officers are public even where officers were demoted and terminated.

2024-0763: Agency did not show that parking reports of employees are exempt as internal deliberations or working papers. Personal identifying information is exempt and may still be redacted.

In this post, we discuss records related to labor relations and collective bargaining agreements, covered in section 708(b)(8).  Senior Appeals Officer Kelly Isenberg provided the legal analysis.  As of June 24, 2024, this exemption has been cited in 99 OOR appeals.  

Section 708(b)(8) exempts:

• A record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract or agreement between the parties in a collective bargaining procedure.
• in the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the final award or order of the arbitrator in a dispute or grievance procedure

Common sense dictates that publicly releasing records related to agency labor negotiations is not in the best interest of the public. Doing so could put the agency at great disadvantage as it attempts to procure a contract that may be of significant fiscal impact to taxpayers.  The exemption may be applicable to the records of a variety of agencies such as, school districts, policy departments, local municipalities and county governments, state universities, and Commonwealth agencies.

Most of the Final Determinations ascertain if an agency successfully proved that a record does relate to an exempt record pertaining to the strategy or negotiations related to collective bargaining or labor relations.

Some County Common Pleas court cases that have considered the OOR’s application of this exemption on review; however, the cases are not especially notable.  The Commonwealth Court issued a single published opinion in which it considered the application of Section 708(b)(8)(ii).  In Lutz v. City of Philadelphia, the primary issue was the application of Section 708(b)(8)(ii) to a request by newspaper reporter for “all arbitration awards, including written decisions by arbitrators, pertaining to police officers in the years 2005, 2006, 2007, 2008 through the present.”[1]  In response to the request, the City planned to release redacted records from 187 arbitration decisions.  The City’s Police Union sought injunctive relief to prohibit the City from releasing the records, which relief was partially granted by the Philadelphia Court of Common Pleas, permitting only the release of (1) the date the arbitration award was issued; (2) the name of the arbitrator; and (3) whether the grievance was affirmed or denied.[2]  The Commonwealth Court found that the Common Pleas Court erred by disregarding the language in Section 708(b)(8)(ii), which permits the release of the final award of the arbitrator.[3]  The Court noted that the exemptions under the RTKL are to be narrowly construed and that other RTKL exemptions could be applied to redact the information the union wished to protect, such as officer’s home address, personal identification information and information about spouses and children, and police staffing information.  Therefore, if the information had been somehow intermingled in the award records, it could be redacted.[4]   

Section 708(b)(8)(i)

An agency may rely on a sworn statement or a statement made under the penalty of perjury to support its assertion that the requested records relate to labor relations or collective bargaining, but such a statement may not be conclusory.    For an agency to carry its burden of proving that a record is exempt under 708(b)(8)(i), the evidence submitted may not merely rely on a recitation of the exemption language and statements should be authored by an individual with actual knowledge as to the context of the responsive records and how they would relate the content to strategy or negotiations relating to labor relations or collective bargaining. Notably, the exemption does not apply to records that only tangentially relate to collective bargaining. 

In an appeal where the OOR found that responsive emails were not exempt under Section 708(b)(8)(i), the attestations submitted by the District were conclusory and failed to demonstrate how the individual had actual knowledge of why the emails pertained to strategy or negotiations related to labor negotiations and, after an in camera review of the records, the OOR was unable to discern how the records pertained to strategy or negotiations relating to labor relations or collective bargaining.[5]  By comparison, in another appeal, a school district proved that a request for the emails of the district superintendent that had been exchanged with the district’s education association regarding potential healthcare options for members were exempt under Section 708(b)(8)(i), because there were ongoing negotiations year round and the district superintendent’s duties included negotiations and labor relations.[6]

In one Final Determination, access to “a copy of the Gov HR Classification and Compensation Study Draft Final report” was denied under 708(b)(8)(i) where that record was not specifically tied to labor unions. The agency successfully argued that since neither “strategy” or “labor relations” are defined under the RTKL, the exemption is not exclusive to collective bargaining agreements.  The OOR found that “the report is a ‘plan or strategy’ intended to help the Township achieve a goal, and it is exclusively focused on the relationship between the Township and its employees, past and future. Therefore, although the report is not concerned primarily with any specific present labor negotiation, it nonetheless meets the definition of ‘[a] record pertaining to strategy […] relating to labor relations’ under Section 708(b)(8) of the RTKL, and the OOR is constrained to deny the appeal on this basis.”[7]

708(b)(8)(ii)

Similar to the RTKL exemption that may apply to records related to investigation proceedings undertaken as a result of complaints from or about employees,[8] in Section 708(b)(8)(ii), the RTKL exempts certain records reflecting the records that are part of an arbitration proceeding related to a dispute or a grievance under a collective bargaining agreement, but not the final award or order.  This subsection allows agencies to conduct a thorough investigation of labor related or collective bargaining grievances or disputes, without the participants being concerned with potentially sensitive or personal information being disclosed.  The exemption is balanced by the express designation of the outcome of such an investigation as a public record to ensure that the citizenry are apprised of how a labor agreement funded by tax payer dollars is being carried out.

An example of the application of Section 708(b)(8)(ii) involved whether an agency properly withheld all records responsive to a request for “a copy of the arbitrator’s decision regarding the police department contract, date range 2015-2016” under Section 708(b)(8)(i).  The agency argued that the records pertain to collective bargaining.[9]  The OOR found that, with respect to the arbitrator’s order, as compared to the arbitrator’s opinion, Section 708(b)(8)(ii) expressly makes such records public and, because no other grounds for withholding were raised by the agency, the order was subject to access by the Requester.[10]  Similarly, the OOR has held that, in response to a request for “police grievance arbitration awards,” the agency properly applied Sections 708(b)(8)(i) and (ii) by providing a redacted record, showing the arbitration caption page and the award page.[11]  

---

[1] 6 A.3d 669 (Pa. Commw. Ct. 2010).

[2] Lutz, 6 A.3d at 672.

[3] Id. at 674.

[4] Id.

[5] Brown v. Penncrest Sch. Dist. OOR Dkt. AP 2023-2058, 2024 PA O.O.R.D. LEXIS 343; cf. Abrams v. Morrisville Sch. Dist., OOR Dkt. AP 2023-0165, 2023 PA O.O.R.D. LEXIS 779 (district proved that email were exempt under Sec. 708(b)(8)(i) as they contained discussions about the potential impact of school district mergers on the existing collective bargaining agreement).

[6] Grega v. Weatherly Area Sch. Dist., OOR Dkt. AP 2021-0207, 2023 PA O.O.R.D. LEXIS 225.

[7] Salisbury v. Doylestown Twp., OOR Dkt. AP 2022-0907, 2022 PA O.O.R.D. LEXIS 1537.

[8] See 65 P.S. § 67.708(b)(17).

[9] Yakim v. Municipality of Monroeville, OOR Dkt. AP 2016-1890, 2016 PA O.O.R.D. LEXIS 1653.

[10] Id. at *5-6.

[11] Ra’Sheen Brown v. City of Phila. Police Dep’t, OOR Dkt. AP 2015-1687, 2015 PA O.O.R.D. LEXIS 1383.

Good afternoon.

Earlier today, we sent all agency open records officers registered with our office a link to a survey.

Understanding the challenges facing agencies who are subject to the Right-to-Know Law (RTKL) is an important goal of the Office of Open Records (OOR); this survey project is a critical way to gather that information.

The survey should take about five minutes, asking basic information regarding your agency’s experiences with Right-to-Know requests, helping inform the OOR and policy makers.

We’re also asking if the Open Records Officer is willing and interested in being contacted for a brief, 10-minute one-on-one discussion in order to enhance our understanding of the RTKL challenges and opportunities facing agencies.

The survey results will be published in August. Thank you for your consideration.

Next, we discuss records related to agency employees. Section 708(b)(7) protects certain records related to employees’ information. Chief Counsel Kyle Applegate provided the legal analysis for this exemption.  As of June 7, 2024, this exemption has been cited in 584 OOR appeals.  

Section 708(b)(7) exempts “the following records relating to an agency employee:

• A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation.
• A performance rating or review.
• The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed.
• The employment application of an individual who is not hired by the agency.
• Workplace support services program information.
• Written criticisms of an employee.
• Grievance material, including documents related to discrimination or sexual harassment.
• Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge.
• An academic transcript.”

The specific types of records exempt in this clause are plainly worded and fairly specific. Critically, this is not a blanket exemption that applies to all personnel-related records.[1]  The exemption also does not protect entire personnel files.[2]

One often-cited part of the case law on this exemption centers around the public nature of the “final action of the agency that results in demotion or discharge”:

• The act of demoting or discharging an employee is public; the circumstances behind that decision are not. For example, an agency may redact the reasons for the termination of an employee but may not redact but not the name, date and nature of the separation (i.e., termination or resignation).[3]
• An employee resignation letter is not covered by the exception because a voluntary choice to leave employment does not constitute a “discharge”.[4]
• Employee discharges pending arbitration are not final actions until that process has concluded.[5]
• Records reflecting the financial impact of a personnel action are public records. Settlement agreements[6] and severance payments[7] are public. 

Other case law reaffirms that records reflecting potentially negative information about an employee are expressly exempt:

• Employee discipline records in a personnel file.[8]
• Written criticism of an employee made by an agency.[9]
• Employee performance reviews of agency employees.[10]
• Grievance material related to an individual employee, but not a general labor dispute under a collective bargaining agreement. [11]

In addition, many records related to applications for employment to an agency are exempt:

• Applications of individuals not hired by an agency, including those applicants’ names, are exempt records.[12] Notably, the Commonwealth Court found that this exemption does not apply to applications for a gubernatorial appointment to a judicial vacancy, because the individuals that applied were not agency employees and not hired by the agency.[13]
• Names of references in employment applications.[14]

---

[1] Krug v. Bloomsburg Univ. of Pa., OOR Dkt. AP 2018-1600, 2018 PA O.O.R.D. LEXIS 1442; Hummel v. Union Sch. Dist., OOR Dkt. AP 2018-1550, 2018 PA O.O.R.D. LEXIS 1197.

[2] Friend v. Chester City, OOR Dkt. AP 2023-1354, 2023 PA O.O.R.D. LEXIS 1928.

[3] Silver v. Borough of Wilkinsburg, 58 A.3d 125, 129 (Pa. Commw. Ct. 2012).

[4] Fruchter v. Borough of Malvern, 303 A.3d 530, 537-38 (Pa. Commw. Ct. 2023); Brown v. Penncrest Sch. Dist., OOR Dkt. AP 2023-2058, 2024 PA O.O.R.D. LEXIS 343.

[5] In re Melamed, 287 A.3d 491 (Pa. Commw. Ct. 2022).

[6] Newspaper Holdings, Inc. v. New Castle Area Sch. Dist., 911 A.2d 644 (Pa. Commw. Ct. 2006).

[7] Allegheny County Airport Auth. v. Belko, No. 117 C.D. 2023, 2023 Pa. Commw. Unpub. LEXIS 520 (Pa. Commw. Ct. 2023).

[8] Jones v. City of York Police Dep’t, OOR Dkt. AP 2023-2905, 2024 PA O.O.R.D. LEXIS 483.

[9] Weber v. Harrisburg Area Cmty. College, OOR Dkt. AP 2023-1559, 2023 PA O.O.R.D. LEXIS 2024.

[10] Commonwealth v. Rudberg, 32 A.3d 877 (Pa. Commw. Ct. 2011).

[11] Johnson v. Pa. Convention Ctr. Auth., 49 A.3d 920, 924 (Pa. Commw. Ct. 2012); see also McGill v. Bangor Borough, OOR 2010-1216, 2011 PA O.O.R.D. LEXIS 70.

[12] Alecknavage v. Yeadon Borough, OOR Dkt. AP 2023-0051, 2023 PA O.O.R.D. LEXIS 328.

[13] Office of Gen. Counsel v. Bumsted, 247 A.3d 71 (Pa. Commw. Ct. 2021).

[14] Furman v. Bethlehem-Center Sch. Dist., OOR Dkt. AP 2019-1287, 2019 PA O.O.R.D. LEXIS 1039.

The OOR has been contacted by numerous agencies who have received Right-to-Know Law requests from requesters using FOIA Buddy. Please read this for more information.

The Liquor Control Board demonstrated that granting access to bourbon whiskey delivery schedule records to different County liquor stores would threaten the security of an individual. This decision has been appealed to Commonwealth Court. 2024-0251

The applications of unsuccessful applicants for a position, including those applicants’ names, are exempt records. 2024-0539

The Copyright Act may prohibit the reproduction of copyrighted works, but the agency must permit the requester to inspect the responsive records. 2024-0443

A Zoom recording of a cyber charter school public meeting is not found to be “personal notes” of the board’s secretary and therefore the recoding is subject to disclosure. 2024-0816