Commonwealth Court issued a strong ruling yesterday upholding the ability of the Office of Open Records to conduct in camera review of records sua sponte (on its own motion). Berks County had argued that the OOR had no such power.

(In camera review means that the agency provides the relevant records to the OOR, where they are reviewed by the OOR before a Final Determination is issued.)

The Court held:

“It is well established that OOR and its appeals officers have authority to order and undertake in camera review of documents that have been withheld or redacted where, in the appeals officers’ judgment, in camera review is necessary to develop an adequate record to rule on the agency’s claims of privilege or exemption. …

“The County argues that this authority is limited to cases where one of the parties has requested in camera review or this Court has ordered OOR to conduct an in camera review on remand. We do not agree.”

The Court continued:

“[T]his Court has repeatedly reaffirmed OOR’s authority to order in camera review without imposing any requirement of a party request.”

In analyzing the position advanced by Berks County, the court said:

“[I]f it were held that OOR has no power to order in camera review sua sponte, OOR would be forced, in situations where no party makes a request, to either hold an unnecessary hearing or default on its obligation to develop an adequate record, requiring the courts to conduct additional fact-finding or remand to OOR for in camera review. The only effect would be to require unnecessary delay and inefficiency in the review and appeals process with no actual difference in whether in camera review is conducted.”

The ruling also contains an excellent summary of why in camera review can be a remarkably useful tool for deciding Right-to-Know Law appeals:

“In camera review can be of critical importance in determining whether documents requested under the RTKL are protected by privilege and may sometimes be the only means by which an appeals officer and the courts can adjudicate a privilege claim on an adequate record.”