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.
Open Records in Pennsylvania 