Received 11/19/2014 Commonwealth Court of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF EDUCATION, Petitioner, v. RYAN BAGWELL, Respondent.

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Docket No. 1138 C.D. 2014

PENNSYLVANIA DEPARTMENT OF EDUCATION’S ANSWER AND MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT’S APPLICATION FOR RELIEF REQUESTING AN EVIDENTIARY HEARING Petitioner, the Pennsylvania Department of Education (Department), pursuant to Pa.R.A.P. Rules 123(b) and 1542, files the following answer and memorandum of law in opposition to Respondent Ryan Bagwell’s (Bagwell) Application for Relief requesting an evidentiary hearing.

For the following

reasons, the Department respectfully requests that this Honorable Court deny Bagwell’s Application. 1

Department’s Answer to the Application 1.

On July 8, 2014, the Department initiated this action by filing a petition for review in this Court’s appellate jurisdiction from the June 9, 2014 Final Determination of the Office of Open Records (OOR) in Bagwell v. Department of Education, AP 2014-0551.

2.

This appeal relates to a request for records filed by Bagwell, which was denied by the Department based on the assertion of the attorney-client privilege, the attorney work-product doctrine, and the RTKL’s exemption in section 708(b)(10)(i)(A), 65 P.S. § 67.708(b)(10)(i)(A), for records reflecting or used in internal, predecisional deliberations.

The records

(Records) constitute three e-mails dated November 8, 2011, between former Secretary of Education Ronald Tomalis and the Commonwealth’s General Counsel and First Executive Deputy General Counsel in the Office of General Counsel (OGC). 3.

In the proceeding before OOR, Bagwell requested an evidentiary hearing to present evidence of waiver of the privileges through the testimony of Secretary Tomalis, who by statute served as an ex officio member of the Board of Trustees of the Pennsylvania State University (PSU Board), and Kenneth Frazier and John Surma, who also served on the PSU Board with Secretary Tomalis. OOR denied Bagwell’s Request. 2

4.

In his Application, Bagwell requests that the Court “[schedule] an evidentiary hearing to receive and consider testimonial evidence” that Bagwell alleges is “directly relevant” to his assertion that the Department waived the attorney-client and attorney work-product privileges by disclosing to third-parties the information that the Department asserts is subject to those privileges.

5.

The record for this appeal contains sufficient evidence that the privileges asserted by the Department were not waived by disclosure to a third party.

6.

The record includes: 1) the affidavit of Secretary Tomalis, in which he states that he “[has] not waived the attorney-client privilege” regarding the records in question in this appeal (Exhibit 1; also Reproduced Record (R.) 6a)); and, 2) a second affidavit of Secretary Tomalis in which he states that “to the best of [his] knowledge and after reasonable search of his records, [he does] not have in [his] possession, custody or control any records” of e-mails he sent to John Surma between November 8, 2011 and November 11, 2011, regarding the hiring of external legal counsel for PSU (Ex. 2; R. 102a-104a).

7.

Bagwell pointed only to a single e-mail sent by Secretary Tomalis to Kenneth Frazier, in which Secretary Tomalis says that he forwarded “names” to John Surma. See Application, Ex. C.

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8.

This e-mail does not provide sufficient evidence to raise a question of whether Secretary Tomalis shared privileged information with John Surma nor does it rebut the evidence submitted by the Department.

9.

Bagwell failed to demonstrate that a genuine issue of material fact exists in this dispute and his request for an evidentiary hearing must be denied.

10.

In the alternative, Bagwell has not demonstrated that an evidentiary hearing would reveal evidence to rebut the Department’s assertions and Secretary Tomalis’ affidavits that privileges have not been waived.

11.

Bagwell does not provide any proffer of the type of information he believes could be obtained through an evidentiary hearing, nor does he identify the individuals he intends to call at an evidentiary hearing.

12.

Presuming Bagwell intends to call the same individuals he proposed to call in the proceeding before OOR - Secretary Tomalis, Kenneth Frazier and John Surma – Bagwell cannot demonstrate that scheduling an evidentiary hearing will assist to resolve any genuine issue of material fact.

13.

By affidavit1, Secretary Tomalis stated that: 1) he did not waive the attorneyclient privilege (Ex. 1; R. 6a); and, 2) he does not have in his possession,

1

“Testimonial affidavits found to be relevant and credible may provide sufficient evidence in support of a claimed exemption.” Heavens v. Pennsylvania Department of Environmental Protection, 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013). 4

custody or control any e-mails he sent to Surma between November 8, 2011 and November 11, 2011, regarding the hiring of external legal counsel for PSU (Ex. 2; R. 102a-104a). 14.

Bagwell has not presented any information to explain what testimony Tomalis could provide.

15.

Also, Kenneth Frazier and John Surma were not officials, employees or agents of the Commonwealth at any time relevant to Bagwell’s RTKL request and appeals, and calling these individuals to testify would be equivalent to using the RTKL to conduct discovery, which is not a right under the RTKL. See Sherry v. Radnor Township School District, 20 A.3d 515, 520 (Pa. Cmwlth. 2011).

16.

The difficulties involved in having these non-agency individuals testify – issuance of subpoenas and potential objection by the witnesses, proximity of the witness to the location of the evidentiary hearing, the representation of the individuals by separate legal counsel, and status of Bagwell as a pro se litigant – must also be considered.

17.

Because an evidentiary hearing before this Court could exceed the procedures under the RTKL and because Bagwell cannot point to any genuine issue of material fact that is likely to be resolved by an evidentiary hearing, Bagwell’s request for an evidentiary hearing must be denied. 5

18.

Furthermore, an evidentiary hearing before this Court will not serve the interests in the RTKL of a just, fair and expeditious resolution of this appeal.

19.

Bagwell's request for an evidentiary hearing comes after PDE filed its designation of contents of the reproduced record on August 29, 2014, and after the Department filed its primary brief and the reproduced record on October 29, 2014.

20.

Further, Bagwell filed his request for evidentiary hearing more than two months after the Department filed a request with this Court that the certified record for this appeal include records submitted to OOR but not forwarded to this Court by OOR. See Pennsylvania Department of Education’s Motion to Correct and Supplement the Record, filed August 26, 2014.

21.

Currently, Bagwell’s brief is due in approximately two weeks.

22.

At no time during all the preliminary filings made by the Department and through the filing of the Department’s brief and reproduced record did Bagwell make any request or even allude to his intention to seek that additional evidence be added to the record in this appeal.

23.

An evidentiary hearing will likely require the Department to file a new brief and reproduced record and delay the resolution of this appeal.

24.

To the extent that any factual issues remain to be resolved after consideration by the Court of the issues currently presented in the 6

Department’s brief, the Court can remand the matter to OOR to take additional evidence and resolve the remaining factual issues.

See, e.g.,

Pa.R.A.P. 1551(a) and 1561(a). 25.

Because an evidentiary hearing will create a burden on the Department and the Court and delay the resolution of this appeal, and because the Court can remand the matter for OOR to take additional evidence should that be necessary after resolution of the issues currently presented in this appeal, Bagwell’s request for an evidentiary hearing must be denied. Response and Memorandum of Law in opposition to Bagwell’s request for an evidentiary hearing. In an appeal from a final determination of OOR, this Court exercises a de

novo standard of review and its scope of review is plenary respecting both questions of fact and law. Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013). Thus, this Court reviews OOR’s orders independently and may substitute its own findings of fact for those of OOR. Id. In cases addressed to this Court’s original jurisdiction, the Court can hold an evidentiary hearing to develop the record as to a genuine issue of material fact raised in the matter. See Pa.R.A.P. 1542. Similarly, in an appeal from a final determination of OOR, this Court can

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schedule an evidentiary hearing to develop the record with information to address any genuine issues of material fact.2 “Due process does not require a hearing [in a RTKL matter] because the right to information provided by the RTKL does not involve a property right because access to public records is a ‘privilege’ granted by the General Assembly.” Prison Legal News v. Office of Open Records, 992 A.2d 942, 947 (Pa. Cmwlth. 2010). “[N]either the RTKL nor the courts have extended the right to discovery or a right to due process to a requesting party in a RTKL action.” Sherry, 20 A.3d at 520. Issues regarding access to public records under the RTKL should be resolved expeditiously and efficiently. See Bowling, 990 A.2d at 823. No genuine issues of material fact exist in this appeal which must be or could be resolved through an evidentiary hearing. Under the broad scope of review applicable to consideration of appeals from OOR decisions, the Court could schedule an evidentiary hearing “where it appears that a genuine issue as to a material fact has been raised. . . .” Pa.R.A.P. 1542. A party requesting an evidentiary should be required to demonstrate that 1) a genuine 2

In appeals from OOR’s final determinations, the Court can function as a trial court even though the matter appears in the Court’s appellate jurisdiction. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2014), aff’d 75 A.3d 453 (Pa. 2013). The Court “is entitled to the broadest scope of review” similar to that applicable to appeals from the Board of Finance and Revenue (F & R Board). Id. at 822. In appeals from the F & R Board, this Court develops its own record and can use evidentiary hearings under Pa.R.A.P. 1542 as one of the means to develop that record. See Pa.R.A.P. 1571(f). 8

issue as to a material fact exists and 2) that evidence to be received through an evidentiary hearing could assist to resolve the disputed issue of fact. Bagwell cannot demonstrate either and his request for an evidentiary hearing must be denied. The record currently before the Court contains substantial evidence that the privileges asserted to deny access to the Records were not waived by disclosure to a third party. This evidence includes the affidavit of Secretary Tomalis, in which he states that he “[has] not waived the attorney-client privilege” regarding the records in question in this appeal. Ex. 1; R. 6a. The record also includes a second affidavit from Secretary Tomalis in which the Secretary states that “to the best of [his] knowledge and after reasonable search of his records, [he does] not have in [his] possession, custody or control any records” of e-mails he sent to Surma between November 8, 2011, and November 11, 2011, regarding the hiring of external legal counsel for PSU. Ex. 2; R. 102a-104a. Bagwell’s allegation of waiver is based on a single e-mail sent by Secretary Tomalis to Kenneth Frazier in which Secretary Tomalis says that he forwarded “names” to John Surma. See Application, Ex. C.

Secretary Tomalis’ second affidavit supports his earlier

assertion that he has not waived the privilege and addresses any question of whether he forwarded the privileged records to John Surma.

9

The Application and the record in this appeal do not reveal any genuine issue of material fact to be resolved through an evidentiary hearing.

The

Department presented a substantial amount of evidence that Secretary Tomalis did not disclose the privileged information to Kenneth Frazier or John Surma, and Bagwell did not present evidence to sufficiently rebut the Department’s assertions. Consequently, Bagwell failed to demonstrate that a genuine issue of material fact exists in this dispute and his request for an evidentiary hearing must be denied. To the extent that Bagwell has raised a genuine issue of material fact, Bagwell has not demonstrated that an evidentiary hearing would reveal evidence of a waiver of the privileges. Initially, Bagwell does not provide any detail about the evidence he intends to present or the individuals he intends to call to testify at the evidentiary hearing. In the proceeding before OOR, Bagwell proposed to call Secretary Tomalis, Kenneth Frazier, and John Surma. An evidentiary hearing to seek testimony from these individuals, to the extent appropriate in a RTKL appeal, is not likely to result in the introduction of facts that rebut the Department’s evidence. By affidavit, Secretary Tomalis stated that: 1) he did not waive the attorneyclient privilege; and, 2) that he does not have in his possession, custody or control any e-mails to John Surma between November 8, 2011, and November 11, 2011, regarding the hiring of external legal counsel for PSU. Bagwell has not presented 10

any information to explain what testimony Secretary Tomalis could provide, other than the information submitted by affidavit. Further, a request for an evidentiary hearing to take the testimony of Kenneth Frazier and John Surma would not be appropriate. The RTKL does not require a hearing, nor does a right to discovery exist under the RTKL. See Prison Legal News, 992 A.2d at 947; Sherry, 20 A.3d at 520. Frazier and Surma were not officials, employees or agents of the Commonwealth at any time relevant to Bagwell’s RTKL request and appeals. Additionally, the logistical and practical difficulties involved in having these non-agency individuals testify must be considered, including the fact that: subpoenas would likely be required for the attendance of these individuals at a hearing and, to the Department’s knowledge, neither individual is a resident of Harrisburg or the immediately surrounding area; the individuals are likely to be represented by their own counsel and could object to a hearing due to the intrusion, burden and expense of testifying in this RTKL proceeding; and, Bagwell is not represented by counsel. Consequently, because Bagwell cannot demonstrate that an evidentiary hearing will assist to resolve any genuine issue of material fact that may be present in this appeal, Bagwell’s request for an evidentiary hearing must be denied.

11

Scheduling of an evidentiary hearing at this time is inconsistent with justice, fairness and expeditious resolution of this dispute. This Court can take additional evidence to more fully develop the record in a RTKL appeal. However, “a court reviewing an appeal from the OOR under the [RTKL] should consider the manner of proceeding most consistent with justice, fairness and expeditious resolution.” Bowling, 990 A.2d at 823. The evidentiary hearing requested by Bagwell would cause an unreasonable burden and expense on the Department and unnecessarily delay the resolution of this appeal, and the Application should be denied. Bagwell’s request for an evidentiary hearing comes four months after the Department filed the petition for review that initiated this action. Further, Bagwell filed his Application for an evidentiary hearing months after the Department filed a request to correct and supplement the record and filed the designation of the contents of the reproduced record, and after the Department filed its primary brief and the reproduced record for this appeal. Bagwell’s response brief is due to be filed in approximately two weeks. If Bagwell’s request for an evidentiary hearing is granted, the briefing schedule will likely need to be revised and the Department would need to submit a new brief and reproduced record. In addition to resulting in an additional expense to the Department, resubmission of a brief and reproduced record will unnecessarily delay the ultimate resolution of this appeal.

12

To the extent Bagwell relies on this Court’s ruling in Bagwell v. Pennsylvania Department of Education, 79 C.D. 2014 (Pa. Cmwlth. Oct. 31, 2014), to argue that he was previously unaware of his burden to present evidence of waiver, that argument lacks merit and is an insufficient basis on which to grant his request for an evidentiary hearing. The Department has consistently maintained that the burden to prove that the privileges were waived by disclosure to a thirdparty shifted to Bagwell and cited to legal authority – e.g. Nationwide Mutual Insurance Co. v. Fleming, 924 A.2d 1259, 1265-66 (Pa. Super. 2007), af’fd per curiam, 992 A.2d 74 (Pa. 2010) and Heavens, 65 A.3d at 1076-77 – in support of this position. Bagwell was aware of his responsibility to present evidence of wavier. In fact, Bagwell requested a hearing before OOR and OOR did not schedule the requested hearing. See, OOR’s Final Determination, Pg. 4 (R. 85a). OOR’s decision to hold or not hold a hearing is not appealable.

65 P.S. §

67.1102(a)(2)). Even if Bagwell’s request for an evidentiary hearing before this Court is denied, Bagwell may still be granted an opportunity to present additional evidence of waiver. The Court has the authority to remand the matter to OOR for further proceedings. See, e.g., Pa.R.A.P. 1551(a) and 1561(a); Bagwell v. Pennsylvania Department of Education, 76 A.3d 81, 91-92 (Pa. Cmwlth. 2013) (remanding to OOR “as fact-finder in the first instance” for further proceedings). Additional 13

proceedings before OOR may also be more appropriate under the circumstances in this case, where the requester is not represented by counsel and OOR is not subject to the same formality employed by this Court under the Pennsylvania Rules of Civil Procedure and Pennsylvania Rules of Appellate Procedure. See Bowling, 990 A.2d at 823. Remanding the matter to OOR, following the Court’s consideration of the questions already presented by the Department in its brief, is more likely to result in a just, fair and expeditious resolution of this dispute and is consistent with the principles underlying the RTKL. Id. Accordingly, the Court should deny Bagwell’s request for an evidentiary hearing. Conclusion Bagwell has failed to demonstrate that this appeal presents a genuine issue of material fact that must be resolved through an evidentiary hearing or, in the alternative, has failed to demonstrate that an evidentiary hearing could serve to assist in the resolution of any genuine issue of material fact that may be present in this RTKL appeal. To the extent that any genuine issue of material fact is present in this appeal, the Court could proceed to resolve the issues currently presented by the Department in its brief and remand the matter to OOR for additional proceedings. For the reasons above, Bagwell’s Application for Relief requesting an evidentiary hearing must be denied.

14

Respectfully submitted, _/s/ Roberto T. Datorre__________ Roberto T. Datorre Assistant Counsel Attorney I.D. No. 94957 E-mail: [email protected] Karen Feuchtenberger Senior Assistant Counsel Attorney I.D. No. 58995 E-mail: [email protected] Pennsylvania Department of Education Office of Chief Counsel 333 Market Street, 9th Floor Harrisburg, PA 17126 Tel.: (717)787-5500 Fax: (717)783-0347 E-mail: [email protected] Date: November 19, 2014

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EXHIBIT 1

COMMONWEALTH OP PENNSYLVANIA DEPARTMENT OF EDUCATION 333 MARKET STREET HARRISBURG,PA 17126-0333 www.pdestate.pa.us

ATTESTATION Date:

April 7, 2014

Agency:

Pennsylvania Department of Education

Requester:

Ryan Bagwell

Records Requested: Copies of all e-mails sent between former secretary of education Ron Tomalis„Tames Schultz and Stephen Aichele on November 8, 2011, 1, Ronald J. Tornalis, was the Secretary of the Pennsylvania Department of Education on November 8, 2011, and I make this staternent under the penalty of perjury as rnore fully set forth in 18 Pa.C.S. § 4904, 1.

As the Secretary of the Pennsylvania Department of Education(PDE) on November 8, 2011, t was a client of the Office of General Counsel;

2.

I communicated with Stephen Aiehele and/or James Schultz, attorneys in the Office of General Counsel, on November 8, 2011, as represented in emails of that date described in PDE's response to your Right-to-Know Law(RTKL) request;

3.

The emails of November 8, 2011 that are in rny possession and identified in PDE's response to your RTKL request include only Mr. Aichele, Mr. Schultz, and myself, and contain the mental impressions and/or opinions of Mr. Aichele nnd Mr. Schultz pertaining to an issue I presented to them for the purpose of seeking legal services or assistance in a legal matter, and was not for the purpose of committing a crime or tort; and, I clairn and have not waived the attorney-client privilege regarding the ernaiis of November 8, 2011 identified in PDE's response to your RTKL request that are in my possession.

Ronald J. Tomalis Dated: April 7, 2014

6a

EXHIBIT 2

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION 333 MARKET STREET HAR_RISBURG,PA 17126-0333 www education.state..na,ns

Apri130,2014 Via Electronic Mail(ryangryanbagwell.com) Ryan Bagwell 5219 Shorecrest Drive Middleton, WI 53562 Re: Right-to-Know Law Request No.2014-052 Dear Mr. Bagwell, Thank you for writing to the Pennsylvania Department of Education(PDE) with your request for information pursuant to the Pennsylvania Right-To-Know Law(RTKL),65 P.S. § 67.101 et seq. Your request was received on April 23, 2014, and you_ requested the following: All emails sent to fowler . Penn State trustee John Surma from former secretary of education Ron Tomalis between November 8,2011[,] and November 11, 2011[,] regarding the hiring of external legal counsel for Penn State. PDE does not have the records you requested in its possession, or under its custody or control. Please see the attached affidavit. Pursuant to the Office of Open Records Final Decision in Jenkns vs_ Pennsylvania Department ofState, OOR Dkt. AP 2009-065,it should be noted that: "It is not a denial of access when an agency does not possess records and [there is no] legal obligation to obtain them (see, e.g. section 67.506 (d)(1))." Notwithstanding the OOR's decision in Jenkins,PDE provides you with the following addition information concerning appeals. You have a right to appeal this response in writing to Terry Mutchler, Executive Director, Office of Open Records (OOR), Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, Pennsylvania 17120. If you choose to file an appeal you must do so within 15 business days ofthe mailing date ofthis response and send to the OOR: 1)this response; 2)your request; and 3)the reason why you think the agency is wrong in its reasons for saying that the record is not in its possession, or in its custody or control. Also, the OOR has an appeal form available on the OOR website at: https://www.dced.state.pa.us/publidoor/appealformwneral.pdf.

102a

Should you have questions regarding this letter, please contact me by telephone, facsimile, or mail. Sincerely,

Larry McComsey Agency Open Records Officer (717) 787-5380 (717) 772-2317(fax) Attachment

103a

Al LESTATION Date:

April 30, 2014 •

Agency:

Pennsylvania Department ofEducation

Requester

Ryan Bagwell

Records Requested:

I hereby request copies ofthe following: all e-mails sent to former.. Penn State trustee John Surma from former secretary ofeducation Ron Tombs between November 8,2011[3 arid November 11,2011[3 regarding the hiring ofexternal legal counsel for Penn State.

1, Ronald J. Tomalis, am a Special Advisor.to the Governor ofPennsylvania and former Secretaxy ofEducation, and I make this statement under the penalty of peijnry as more fully set forth in 18 Pa.C.S. § 4904. To the best of my knowledge and after a reasonable search of my records,I do not have in my possession, or under my custody or control any records responsive to Mr.BagwelPs request.

Dated: ki

jot

104a