Commonwealth Court Upholds OOR Power of In Camera Review

Office of Open Records LogoCommonwealth 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.”

OOR’s In Camera Power Upheld

In Township of Worcester v. Office of Open Records and James Mollick, the Commonwealth Court has reaffirmed that the OOR’s Appeals Officers — the attorneys who review appeals under the Right-to-Know Law and issue Final Determinations — have the authority to order in camera review of records and to require the creation of a privilege log.

(In camera is a Latin term which means “in chambers.” In other words, when the OOR orders in camera review of records, the records themselves are provided for the OOR’s private review to help ensure a complete and accurate Final Determination.)

In this case, the OOR had directed the Township of Worcester to produce, for in camera inspection, copies of records the Township withheld in response to Mollick’s Right-to-Know request, along with an in camera inspection index. The Montgomery County Court of Common Pleas reversed the OOR order, but last week’s Commonwealth Court ruling overturns the lower court decision and reinstates the OOR order.

The Commonwealth Court, in an opinion authored by Judge Robert Simpson, held that:

“One of an appeals officer’s duties under Chapter 11 of the RTKL is to develop an adequate factual record on appeal. … An appeals officer functions as the initial fact-finder, and acts in a quasi-judicial capacity pursuant to Section 1102 of the RTKL. … In these circumstances, it is incumbent upon an appeals officer to create an adequate factual record in order to issue a determination. … Thus, appeals officers are empowered to develop the record to ensure Chapter 13 courts may perform appellate review without the necessity of performing their own fact-finding. … Thus, in camera review is appropriate to assess claims of privilege and predecisional deliberations. Additionally, review of an index or ‘privilege log’ of withheld records may be proper in determining whether records are exempt from disclosure.”

The court also said that it defers to the OOR’s Appeals Officers on this procedural issue “to adequately develop a record beyond the intertwined assertions of fact and law.”

Regarding potential future appeals of in camera orders issued by the OOR, the ruling said this:

“Having now confirmed the law in this area, it is hard to imagine any significant public policy interest supporting judicial review of non-final OOR orders which seek to create an adequate record. In other words, it would be a very rare case which would support interlocutory review of an OOR order similar to the one here.”

The court also reaffirmed the holding that “conclusory affidavits, standing alone, are insufficient to prove records are exempt” from disclosure under the RTKL.