IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Office of the Governor, :

Petitioner :

:

v. : No. 1940 C.D. 2014

: Argued: June 17, 2015

Robert H. Davis, Jr., :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

BY JUDGE SIMPSON FILED: August 12, 2015

The Office of the Governor (Governor’s Office) petitions for review 

from a final determination of the Office of Open Records (OOR), granting in part 

and denying in part the request of Robert H. Davis, Jr., Esquire (Requester) under 

the Right-to-Know Law (RTKL).1 Requester sought records underlying a letter 

drafted by counsel in the Office of General Counsel (OGC). The Governor’s 

Office contends OOR erred in applying the attorney-client privilege and the 

predecisional deliberative exception in Section 708(b)(10) of the RTKL, 65 P.S. 

§67.708(b)(10). Specifically, it argues OOR misplaced the burden of proof when 

analyzing the privilege, and misconstrued the “internal” element of the 

predecisional deliberative exception. Upon review, we vacate and remand.

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101—67.3104.
2

I. Background

On March 27, 2014, Requester filed a RTKL request generally 

seeking records pertaining to the Pennsylvania Game Commission’s (Commission) 

consideration of William Capouillez (Capouillez) for the position of its Executive 

Director. Specifically, he sought:

A copy of all records and any form of communication, in 

whatever format or form they may exist, from the period June 

1, 2013 to the present, created, sent, received or referred to 

others by Governor Tom Corbett, Deputy Chief of Staff and 

Energy Executive Patrick Henderson, Press Secretary Jay 

Pagni and Deputy Chief of Staff Luke Bernstein and any 

members of their staffs and any person employed by any 

energy company regarding any information relating to 

William Capouillez, to Carl Roe, to any member of the 

[Commission] and any Executive Director Candidates or the

interview process for such Executive Director Position and 

more specifically, while not limiting the preceding request, the 

following:

[1] Copies of all records and any form of communication, in 

whatever format or form they may exist and of related 

information received, sent, or used by the [Governor’s Office] 

to recommend the course of action as indicated in the March 

11, 2014 letter of Jared W. Handelman, First Executive 

Deputy General Counsel directed to Bradley C. Bechtel, Chief 

Counsel, which is attached; and

[2] Copies of all records and any and all forms of 

communication, in whatever format or form they may exist, 

and related information, received, sent, or created by the 

Governor and members of his Cabinet and Executive Staff (to 

include, but not limited to the specified ‘published reports and 

other information’ mentioned in the March 11, 2014 letter of 

[Attorney Handelman], to [Attorney] Bechtel, attached) which 

were considered or used in making the statement of 

[Handelman] in that letter that: ‘In fact, I am confident ... [I] 

would not approve the appointment of [Capouillez] as the 

Executive Director of the [Commission];’ and
3

[3] With reference to a letter dated March 18, 2014 signed by 

Governor Corbett and others to any Commissioner of the 

[Commission], one of which letters is attached for your 

convenient reference:

[a] Provide a copy of all records and any and all forms 

of communication received, developed or used by the 

[Governor’s Office] as a basis of the facts stated in such letter 

and to recommend the course of action with regard to 

[Commission] employee [Capouillez] stated in such letter; and

[b] Provide a copy of all records and any and all forms 

of communication, in whatever format or form they may exist 

and any related information from any source used or 

considered by the [Governor’s Office] to cause the Governor 

or other signatories to make the statement of ‘request’ in the 

penultimate paragraph, page 2, of the March 18th letter, 

attached for your convenient reference, that any 

Commissioner who was ‘otherwise inclined to refuse the 

above recommendations, alternatively[,] we request that you 

immediately resign your appointment to the Board of 

Commissioners;’ and

[c] Provide a copy of all records and any and all forms 

of communication, in whatever format or form they may exist 

and any related information from any source used or 

considered by each signatory of the March 18th letter, 

attached, known by the [Governor’s Office] to reflect the 

opinions, views or positions of any signatory of such letter, to 

recommend the factual conclusions, the recommendations and 

the requests contained in such letter; including but not limited 

to the ‘request’ that any Commissioner who might be 

‘otherwise inclined to refuse the above recommendations, 

[alternatively] we request that you immediately resign your 

appointment to the Board of Commissioners.’

Amended Reproduced Record (R.R.) at 22a-24a (Request). Requester attached the 

March 11th and March 18th letters referenced in the Request, in which various 

executive and legislative officials recommended that the Commission not consider 

Capouillez as a candidate for the Executive Director position. R.R. at 25a-28a.
4

After invoking a 30-day extension, the Governor’s Office partially 

granted and partially denied the Request, withholding: personal e-mail addresses 

and phone numbers pursuant to Section 708(b)(6) of the RTKL, 65 P.S. 

§67.708(b)(6); documents reflecting internal, predecisional deliberations pursuant 

to Section 708(b)(10) of the RTKL; and, documents containing communications

exempt under the attorney-client privilege. 

Requester appealed to OOR. OOR invited the parties to supplement 

the record. In response, the Governor’s Office provided a position statement and 

requested that OOR conduct in camera review of the records at issue. Requester 

also provided a position statement. Thereafter, upon OOR’s request, the 

Governor’s Office submitted Bates-labeled records to OOR for in camera 

inspection, accompanied by an index setting forth an exemption as to each Bateslabeled record (Index). The Index identified each email by date and time, the 

names of participants, and, for some records, the subject of the email. See

Supplemental Reproduced Record (S.R.R.) 1b-12b. The Index did not identify the 

employer or title of the participants, and it did not explain how each exemption 

applied to the records.

Based on its in camera review, OOR issued a final determination, 

Davis v. Pennsylvania Office of the Governor, OOR Dkt. No. AP 2014-0835 

(issued September 26, 2014) (Final Determination), denying the appeal in part, and 

granting the appeal in part. OOR concluded the Governor’s Office properly 

redacted personal e-mail addresses and phone numbers, and properly withheld 

certain records under the predecisional deliberative exception. As to the records 
5

found exempt, OOR referenced records and parts of records Bates-labeled OG 

001-069 identifying which portions were exempt with some specificity. However, 

OOR granted access to the records Bates-labeled OG 070-133 without explaining

the reasons for finding them not exempt with reference to specific records.

With regard to the predecisional deliberative exception, OOR stated it 

found portions of the records Bates-labeled OG 001-069 protected because they 

“reflect the internal, predecisional deliberations of [Governor’s] Office employees 

and employees or officials of an agency as defined by the RTKL.” Final 

Determination at 9. Significantly, OOR did not indicate which of the “remainder 

of the records ... are not internal and/or deliberative in nature” by Bates-label or 

any other descriptor.2 Id.

In determining the “remainder” was not protected, OOR explained:

Records are not ‘internal’ under Section 708(b)(10) if they are 

sent to or from a party that is not an employee or official of an 

entity that is defined as an agency under the RTKL. ... Here, 

certain responsive records are not ‘internal’ because they 

originate from individuals that are not employees or officials 

of an agency. Additionally, certain records claimed to be 

subject to this exemption were provided to the Requester .... 

Further, other records at issue are not deliberative in nature. 

The term ‘deliberation’ is generally defined as ‘[t]he act of 

carefully considering issues and options before making a 

decision or taking some action ....’ Factual information and 

statements are not deliberative in nature. Additionally, 

although discussions among employees of an agency may be 

internal and predecisional, an agency also has to demonstrate 

 

2 OOR noted that, pursuant to its Interim Guidelines, it referred to the records reviewed in 

camera and their contents with generic descriptions. See Final Determination at 6 n.2. 
6

that these discussions are deliberative. In the instant case, the 

[Governor’s] Office has not demonstrated that certain records 

are deliberative in nature.

Final Determination at 9-10 (citations omitted) (emphasis added).

With regard to the attorney-client privilege, OOR concluded the 

Governor’s Office did not meet its burden of proof. OOR determined “certain 

records” on their face met the first three prongs of the privilege, but were not 

entitled to exemption because the Governor’s Office did not provide any evidence 

of non-waiver. Id. at 6. OOR also noted the Governor’s Office did not submit an 

affidavit to support the elements of the privilege, concluding the unsworn position 

statement was not competent evidence. Regardless of the lack of evidence, OOR 

reasoned “certain records” would not be privileged “because they do not constitute 

communications that were made for the purpose of securing either an opinion of 

law, legal services or assistance in a legal matter.” Id. at 7. Again, OOR did not 

identify these records by Bates-label or other designation.

The Governor’s Office then filed a petition for review to this Court. 

After briefing, the matter was scheduled for oral argument. A few days before 

argument, the Governor’s Office attempted to submit additional evidence for 

consideration by this Court on appeal. Specifically, the Governor’s Office applied 

for leave to file the records reviewed in camera under seal and requested an 

evidentiary hearing, or alternatively, for permission to supplement the record with 

an affidavit and a more detailed privilege log. This Court denied that request.
7

Originally, OOR did not include the in camera records in the certified 

record. In accordance with our decision in Bagwell v. Department of Education, 

114 A.3d 1113 (Pa. Cmwlth. 2015) (Bagwell (2015), this Court ordered OOR to 

complete the certified record by submission of the Bates-labeled records it 

reviewed under seal. OOR complied in July. Based on the complete evidentiary 

record, we undertake appellate review of OOR’s determination.

II. Discussion

On appeal,3the Governor’s Office argues OOR erred as a matter of 

law in placing the burden of proving non-waiver of the attorney-client privilege on 

the agency. It asserts there is no evidence indicating it waived the privilege, and 

such waiver should not be presumed. Consequently, OOR erred in not protecting 

those records containing privileged legal communications. The Governor’s Office 

also contends OOR erred in applying the predecisional deliberative exception. It 

challenges OOR’s interpretation of the “internal” element as too narrow.

Requester counters that it is the Governor’s Office’s burden to 

establish that the privilege was not waived. He emphasizes OOR concluded that 

some of the records did not qualify as communications pertaining to legal advice, 

and so those records would not be privileged regardless of evidence of waiver. 

Requester also maintains an unsworn statement does not constitute evidence and is 

insufficient to support any of the asserted exemptions.

 

3

In a RTKL appeal involving a Commonwealth agency, this Court has the discretion to 

rely upon the record created below or to create its own. Dep’t of Labor & Indus. v. Heltzel, 90 

A.3d 823 (Pa. Cmwlth. 2014) (en banc); see also Bowling v. Office of Open Records, 990 A.2d 

813 (Pa. Cmwlth. 2010) (en banc), aff’d, 75 A.3d 453 (Pa. 2013).
8

The RTKL is remedial in nature and “is designed to promote access 

to official government information in order to prohibit secrets, scrutinize the actions 

of public officials, and make public officials accountable for their actions.” Pa. State 

Police v. McGill, 83 A.3d 476, 479 (Pa. Cmwlth. 2014) (en banc). Consistent with 

the RTKL’s goal of promoting government transparency and its remedial nature, the 

exceptions to disclosure of public records must be narrowly construed. Id.

Under the RTKL, records in possession of a Commonwealth agency 

are presumed to be public unless they are: (1) exempt under Section 708 of the 

RTKL; (2) “protected by a privilege;” or, (3) exempt under any other Federal or 

State law or regulation or judicial order or decree. Section 305 of the RTKL, 65 

P.S. §67.305 (emphasis added). Section 102 of the RTKL defines “privilege” as:

The attorney work-product doctrine, the attorney-client 

privilege, the doctor-patient privilege, the speech and 

debate privilege or other privilege recognized by a court 

incorporating the laws of this Commonwealth.

65 P.S. §67.102 (emphasis added). The burden of proving a privilege rests on the 

party asserting it. Heavens v. Dep’t of Envtl. Prot., 65 A.3d 1069 (Pa. Cmwlth. 2013). 

Similarly, pursuant to Section 708(a) of the RTKL, an agency bears the burden of 

proving the application of any of the exceptions within Section 708(b) by a 

preponderance of the evidence. See 65 P.S. §67.708(a). 

Thus, the Governor’s Office bears the burden of proving the attorneyclient privilege or the predecisional deliberative exception protects the records.

4

 

4

From review of the in camera records, the records at issue here consist of 

correspondence, the majority of which are emails, and their attachments.
9

A. Exemptions

1. Attorney Client Privilege

We recently assessed OOR’s application of the attorney-client 

privilege in Bagwell v. Department of Education, 103 A.3d 409 (Pa. Cmwlth. 

2014) (Bagwell (2014). There, we held that to establish the attorney-client 

privilege, the agency claiming it must demonstrate:

(1) The asserted holder of the privilege is or sought to become 

a client.

(2) The person to whom the communication was made is a 

member of the bar of a court, or his subordinate.

(3) The communication relates to a fact of which the attorney 

was informed by his client, without the presence of strangers, 

for the purpose of securing either an opinion of law, legal 

services or assistance in a legal matter, and not for the purpose

of committing a crime or tort.

(4) The privilege has been claimed and is not waived by the 

client.

Id. at 420 n.12 (emphasis added) (citing Nationwide Mut. Ins. Co. v. Fleming, 924 

A.2d 1259 (Pa. Super. 2007), aff’d by an equally divided court, 992 A.2d 65 (Pa. 

2010)). We also confirmed that after an agency establishes the privilege was 

properly invoked under the first three prongs, the party challenging invocation of the 

privilege must prove waiver under the fourth prong. Id.; see also Carbis Walker, 

LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007).

Further, “the privilege only applies where the client’s ultimate goal is 

legal advice.” Nat’l RR Passenger Corp. v. Fowler, 788 A.2d 1053, 1064 (Pa. 

Cmwlth. 2011) (emphasis added). The central requirement is that 
10

“communications be for the purpose of securing or providing professional legal 

services. Thus ... the privilege does not extend to business advice or protect 

clients from factual investigations.” Gillard v. AIG Ins. Co., 15 A.3d 44, 52 n.8 

(Pa. 2011) (opinion in support of affirmance).

Here, OOR determined the privilege did not protect some of the 

records because the Governor’s Office did not prove waiver, the fourth prong. 

Additionally, OOR noted that some of the records to which the Governor’s Office 

invoked the privilege did not qualify under the third prong as communications 

pertaining to legal advice. 

As OOR reasoned, the privilege holder must establish the 

communication was confidential, meaning shared only within the attorney-client 

relationship. Indeed, as part of the third prong, the party invoking the privilege must 

establish the records are confidential, in that they are not circulated among 

“strangers.” Fleming. However, once the Governor’s Office establishes the 

privilege, Requester bears the burden of proving waiver. Bagwell (2014). To the 

extent OOR concluded any of the records did not qualify as privileged because the 

Governor’s Office did not establish waiver, OOR erred. Id. 

Therefore, we remand to OOR to reconsider the privilege issue in 

accordance with Bagwell (2014). See also Bagwell (2015) (remanding to allow 

requester to submit evidence to establish waiver prong of privilege). Although 

Requester did not submit evidence of waiver, he contends “[the Index] shows the 

records were shared among the Governor’s Office, the [Commission], the legislature 
11

and even the Governor’s Energy Advisor.” Resp’t’s Br. at 14. OOR shall consider 

whether circulation among such recipients takes the communication outside the 

attorney-client relationship. 

2. Predecisional Deliberative Exception

Here, the Governor’s Office relied entirely on the records submitted in 

camera, the Index, and the cover letter from counsel to support its assertion of the 

predecisional deliberative exception in Section 708(b)(10)(i) of the RTKL. The 

exception protects 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.

65 P.S. §67.708(b)(10)(i)(A) (emphasis added). 

To establish this exception, an agency must show: (1) the information 

is internal to the agency; (2) the information is deliberative in character; and, (3) 

the information is prior to a related decision, and thus “predecisional.” Carey v. 

Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013). “Only information that 

constitutes ‘confidential deliberations of law or policymaking, reflecting opinions, 

recommendations or advice’ is protected as ‘deliberative.’” Id. at 378 (citation 

omitted). Records may satisfy the “internal” element when they are maintained 

internal to one agency or among governmental agencies. Id.; see Kaplin v. Lower 
12

Merion Twp., 19 A.3d 1209, 1216 (Pa. Cmwlth. 2011) (exception covers two 

distinct situations, one involves deliberation within one agency, the other involves 

deliberative communication between two agencies when agencies collaborate 

regarding a course of action).

The origination of records from outside an agency does not preclude 

application of the RTKL exceptions. See Bagwell v. Dep’t of Educ., 76 A.3d 81 

(Pa. Cmwlth. 2013) (records originating with Penn State University, which is not an 

agency, may become records of an agency when records are used in agency decisionmaking). Therefore, OOR erred to extent it determined certain records were not 

protected by this exception based on their origin outside an agency. Final 

Determination at 9 (“records are not ‘internal’ because they originate from 

individuals that are not employees or officials of an agency.”).

Further, it is unclear from the Final Determination how OOR construed 

the “internal” element of the exception. Records qualify as internal when 

maintained among agencies collaborating toward an agency action or decision. 

Kaplin. That the Commission may have consulted with the Governor’s Office or 

OGC in making a hiring decision does not destroy the legitimacy of the exception.

OOR also advised generally that “other records at issue are not 

deliberative in nature.” Final Determination at 9. OOR did not explain why it 

could not discern the deliberative nature from its review of the records in camera. 

Thus, we lack sufficient information to review the merits of OOR’s determination 

that “certain records” are not deliberative in nature.
13

B. Sufficiency of Evidence

As we are remanding to OOR, we address Requester’s arguments 

questioning the sufficiency of the Governor’s Office’s evidence to offer OOR 

additional guidance.

The only evidence the Governor’s Office submitted to OOR were the 

records reviewed in camera.

5

 There is no dispute the Governor’s Office did not 

submit an affidavit or any other documentary evidence to OOR. Its unsworn 

position statement does not constitute evidence. Position statements are akin to 

briefs or proposed findings of fact, which, while part of the record, are

distinguishable from the evidentiary record. See Sherrill v. Workers’ Comp. Appeal 

Bd. (Sch. Dist. of Phila.), 624 A.2d 240 (Pa. Cmwlth. 1993) (distinguishing briefs 

and proposed findings from evidence); see also Housing Auth. of Pittsburgh v. Van 

Osdol, 40 A.3d 209 (Pa. Cmwlth. 2012) (assertions in briefs are not evidence).

Requester argues the exemptions cannot be evaluated without an 

affidavit or other documentary evidence supporting each element of each exemption.

We disagree.

Early into our work with the new RTKL, this Court recognized the 

utility of affidavits as evidence upon which an appeals officer may base a decision. 

See, e.g., Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011)

(recognizing affidavits may be used to establish exemptions); Moore v. Office of 

 

5

The Index that accompanied the records, which was unverified, constitutes an 

interpretive aid as opposed to evidence.
14

Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (affidavit suffices to establish 

nonexistence of records). Indeed, this Court cited lack of a sufficiently detailed 

affidavit as the grounds for rejecting asserted exemptions. See, e.g., Office of 

Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (en banc) (holding agency 

did not meet burden of proving predecisional deliberative exception because 

affidavit consisted of conclusory statements). However, this Court has not held an 

affidavit or other verified statement is required to prove an exemption. Rather, we 

hold evidence is required, and in the RTKL context, an affidavit may serve that 

function.

Similarly, we held records reviewed in camera are sufficient evidence 

for an agency to meet its burden of proof. See Pa. State Police v. Office of Open 

Records (Gilliland), 5 A.3d 473 (Pa. Cmwlth. 2010) (en banc), appeal denied, 76 

A.3d 540 (Pa. 2013) (court reviewed incident report in camera and held the report 

as a whole was protected); accord LaValle v. Office of Gen. Counsel, 769 A.2d 449 

(Pa. 2001) (noting utility of in camera review when generic descriptions are 

insufficient, resulting in an inadequate record before the agency). Recognition of 

OOR’s authority to utilize in camera review to assess protected status is of relatively 

recent vintage. See Office of Open Records v. Center Twp., 95 A.3d 354 (Pa. 

Cmwlth. 2014) (en banc). Thus, an affidavit may be unnecessary when an 

exemption is clear from the face of the record. Gilliland. Moreover, when 

descriptions of records may undermine the very protection sought, an affidavit may 

be counterproductive and infeasible. See Lame v. U.S. Dep’t of Justice, 654 F.2d 

917 (3d Cir. 1981) (in camera index necessary in Freedom of Information Act, 5 

U.S.C. §552, context to protect record content).
15

Records reviewed in camera may serve as a sufficient basis for a factfinder to assess whether an exemption applies. See Levy v. Senate of Pa., 65 A.3d 

361 (Pa. 2013) (approving special master’s review of legal invoices in camera to 

determine privileged status); Center Twp.; accord McGowan v. Dep’t of Envtl. 

Prot., 103 A.3d 374 (Pa. Cmwlth. 2014) (remanding to OOR to evaluate email in 

camera and assess deliberative contents, and subject factual content to mandatory 

redaction). An index, even one containing minimal description, offers a tool for a 

fact-finder reviewing corresponding records. Accord Heavens (explaining value of 

index corresponding exemptions to described records).

We agree with Requester that the Index here is vague and does not 

contain sufficient information to establish the exemptions. Regardless, OOR had 

the opportunity to review the unredacted records themselves. A fact-finder

reviewing unredacted records may be in a better position to evaluate content than a 

fact-finder with only an index or an affidavit. See Center Twp. (explaining utility 

of in camera review for appeals officer as initial fact-finder to assess exemptions).

Days prior to argument, the Governor’s Office attempted to 

supplement the record with a more detailed index. This Court denied the request 

because OOR afforded the agency an adequate opportunity to submit evidence 

below. However, during argument Requester’s counsel noted the supplemental 

index contained more information regarding the records at issue. Additional 

description in an index may assist Requester in his challenges. Additional 

information in an index also may assist OOR and this Court in ascertaining how 

the denial grounds apply, and what the records mean. Therefore, while this case is 
16

remanded on the existing record as submitted to OOR, Requester may stipulate to 

the inclusion of a more detailed index.

C. Sufficiency of Final Determination

This Court is not in a position to evaluate OOR’s decisions as to the

non-protected records (OG 070-133). Because OOR did not sufficiently describe

the records it ordered disclosed (for example, by Bates-label, date, time of 

correspondence or author), we cannot evaluate OOR’s reasoning as to each record 

ordered disclosed.

Specifically, this Court cannot correlate each non-protected record 

with each of the four reasons OOR gave as grounds for their disclosure: (1) not 

pertaining to legal advice (Non-Privileged Records); (2) privileged records to 

which the agency waived the privilege by circulating them among individuals 

outside the attorney-client relationship (Privilege Waived Records); (3) records 

that originated outside the agency, or were sent or received by non-agency 

personnel, (Non-Internal Records); or, (4) records that were not deliberative in 

nature (Non-Deliberative Records). Absent some correlation between the reason 

for rejecting an exemption and the record at issue, the Final Determination is not 

amenable to appellate review.

Therefore, on remand, in addition to applying the correct legal 

standards for the attorney-client privilege and the predecisional deliberative 

exception, OOR shall explain how each exemption applies to each record with 

reference to the Bates-labels. OOR’s reasons for ordering the records disclosed, 
17

(Non-Privileged Records, Privilege Waived Records, Non-Internal Records, NonDeliberative Records), should correspond to the remaining Bates-Labeled records, 

OG 070-133. In that manner, this Court may assess whether OOR committed legal 

or factual error, or applied the exemptions in accordance with decisional law.

III. Conclusion

For the foregoing reasons, we vacate OOR’s final determination, and 

remand to OOR to reissue a final determination in accordance with this opinion. 

OOR shall reissue a final determination addressing all of the records at issue within 

30 days of return of the record from this Court.

On remand, OOR shall be limited to the current evidentiary record; 

however, upon agreement of the parties, the record may be enlarged by receipt of a

supplemental index. 

In the reissued final determination, OOR shall explain its reason for 

rejecting the asserted exemptions with specific reference to the records by Bateslabel corresponding to the four categories set forth above in order to permit 

appellate review.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Office of the Governor, :

Petitioner :

:

v. : No. 1940 C.D. 2014

:

Robert H. Davis, Jr., :

Respondent :

O R D E R

AND NOW, this 12th day of August, 2015, the final determination of

the Office of Open Record (OOR) is VACATED and the matter is REMANDED

to OOR to reissue its final determination in accordance with the foregoing opinion, 

based on the existing record, with the exception of a more complete index 

corresponding to the exemptions contingent upon Respondent’s agreement to such 

supplementation.

OOR shall reissue its final determination within 30 days of the date it 

receives the record returned from this Court, including sufficient explanation of its 

reasoning for determining records protected or public for each exemption asserted 

as to each record, using reference to the records by Bates-label.

Jurisdiction is retained.

 

 ROBERT SIMPSON, Judge