IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nolan Finnerty, :

Petitioner :

 :

 :

v. : No. 1090 C.D. 2018

 : Argued: March 14, 2019

Pennsylvania Department of :

Community and Economic :

Development, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: April 25, 2019

Nolan Finnerty (Requester) petitions for review of a Final Determination of 

the Office of Open Records (OOR) issued July 11, 2018, denying in part his appeal 

of the Pennsylvania Department of Community and Economic Development’s 

(Department) partial denial of his request for records under the Right-to-Know 

Law (RTKL).1 Requester argues that OOR erred when it determined that the 

Department properly invoked the internal, predecisional deliberation exception as 

to certain records because those records were not internal to the Department but

 

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

were shared with subcontractors of the Department. For the reasons set forth in 

Finnerty v. Pennsylvania Department of Community and Economic Development, 

__ A.3d __, (Pa. Cmwlth., No. 801 C.D. 2018, filed April 25, 2019) (Finnerty I),2

we disagree and conclude that these records remained “internal to the agency” 

because the records were exchanged between the Department and outside 

contractors with whom the Department had a contractual relationship to assist it in 

bringing the City of Chester (the City) out of financially distressed status. 

McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014).

Requester also challenges the Department’s withholding of certain records 

under the privilege of attorney-client communications and, relatedly, the attorney 

work-product doctrine. However, at oral argument, the Department’s Counsel 

represented, and Requester’s Counsel agreed, that the records withheld as 

privileged attorney-client communications and under the attorney work-product 

doctrine had been disclosed to Requester. Therefore, we conclude that, as a result 

of that disclosure, Requester’s challenges based on the attorney-client 

communications privilege and attorney work-product doctrine have been rendered 

moot, and none of the exceptions to the mootness doctrine apply.

I. Factual Background

Since 1996, pursuant to the Municipalities Financial Recovery Act3(Act 

47), the City has been determined to be a financially distressed municipality. 

Under Section 221 of Act 47, 53 P.S. § 11701.221, the Department is authorized to 

appoint and compensate a consultant who will act as a coordinator in preparing and 

 

2 Finnerty I was argued seriately with this case.

3 Act of July 10, 1987, P.L. 246, as amended, 53 P.S. §§ 11701.101-11701.712.
3

addressing the municipality’s financial problems. In February 2016, following a 

request for proposals (RFP), the Department entered into a contract (Contract) with 

EConsult Solutions Inc. (EConsult) to act as the Act 47 Coordinator for the City. 

(Reproduced Record (R.R.) at 181a-215a.) At the time of the Contract, EConsult 

had been serving as the Act 47 Coordinator for the City since September 2015 

under a contract with the Department. (Id. at 364a.) Under the terms of the RFP, 

which were incorporated into the Contract, EConsult was responsible for 

implementing the Recovery Plan for the City, working closely with municipal 

officials, maintaining close contact with the Department and providing the 

Department with progress reports regarding the Recovery Plan implementation, 

consulting with employee collective bargaining groups, attending meetings as 

directed by the Department and requested by the City, consulting with state and 

federal agencies as necessary, and applying for grants as provided by Act 47. (Id.

at 209a.) In Article XIII of the Contract, EConsult promised not to enter into any 

subcontract for the activities identified in the Contract without the prior written 

approval of the Department. (Id. at 200a.) Appended to the Contract was a 

budget, which allotted payment to Fairmount Capital Advisors (Fairmount), as a 

financial consultant, and McNees, Wallace and Nurick (McNees), as legal counsel, 

for subcontract work they were to perform related to EConsult’s activities as Act 

47 Coordinator. (Id. at 214a, 224a.) The budget stated that Fairmount and 

McNees would bill hourly through EConsult. (Id.) 

A. The Request under the RTKL and the Department’s Responses

On November 28, 2017, the Department received, via email, a request from 

Requester, a paralegal with the law firm of Conrad O’Brien, P.C., under the RTKL. 
4

The request consisted of 25 subparts and requested, inter alia, copies of specific 

records, including documents exchanged between and among the Department, the 

City, EConsult, McNees, and Fairmount discussing the City and the Chester Water 

Authority (CWA).4 (Id. at 9a-10a.)

 

4 Specifically, the request, as relevant to this appeal, was as follows: 

1. Copies of all communications, including letters and emails, between [the 

Department] and any Chester City Officials . . . from July 1, 2015 to the 

present.

2. Copies of all communications, including letters, reports, memoranda, and 

emails, between McNees . . . and any Chester City Officials . . . from July 1, 

2015 to the present.

3. Copies of all communications, including letters, reports, memoranda, and 

emails, between E[C]onsult . . . and/or Fairmount . . . and any Chester City 

Officials . . . from July 1, 2015 to the present.

4. Copies of all communications, including letters, reports, memoranda, and 

emails, between the [Department] and [another law firm] discussing the City 

of Chester and/or the [CWA] from July 1, 2015 to the present.

5. Copies of all communications, including letters, reports, memoranda, and 

emails, directly or indirectly exchanged between the [Department] and 

Steven W. Smith, Esquire discussing the City . . . and/or the [CWA] from 

July 1, 2015 to the present.

***

9. Copies of all communications, including letters and emails, between [the 

Department] and David Unkovic, Esquire discussing the City . . . and/or the 

[CWA] from July 1, 2015 to the present.

10. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and David Unkovic, 

Esquire discussing the City . . . and/or the [CWA] from July 1, 2015 to the 

present.

11. Copies of all communications, including letters, reports, memoranda, and 

emails, between [the Department] and Adam Santucci, Esquire discussing 

the City . . . and/or the [CWA] from July 1, 2015 to the present.

12. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and Adam Santucci, 

Esquire discussing the City . . . and/or the [CWA] from July 1, 2015 to the 

present.

(Footnote continued on next page...)
5

_____________________________

(continued...)

13. Copies of all communications, including letters, reports, memoranda, and 

emails, between [the Department] and Brooke Queenan discussing the City 

. . . and/or the [CWA] from July 1, 2015 to the present.

14. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and Brooke Queenan 

discussing the City . . . and/or the [CWA] from July 1, 2015 to the present.

15. Copies of all communications, including letters, reports, memoranda, and 

emails, between [the Department] and Stephen Mullin discussing the City 

. . . and/or the [CWA] from July 1, 2015 to the present.

16. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and Stephen Mullin 

discussing the City . . . and/or the [CWA] from July 1, 2015 to the present.

17. Copies of all communications, including letters, reports, memoranda, and 

emails, between [the Department] and Andrea Mannino discussing the City 

. . . and/or the [CWA] from July 1, 2015 to the present.

18. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and Andrea Mannino 

discussing the City . . . and/or the [CWA] from July 1, 2015 to the present.

19. Copies of all communications, including letters, reports, memoranda, and 

emails, between [the Department] and Daniel Connelly discussing the City 

. . . and/or the [CWA] from July 1, 2015 to the present.

20. Copies of all communications, including letters, reports, memoranda, and 

emails, between Marita Kelly and/or Jamar Kelly and Daniel Connelly 

discussing the City . . . and/or the [CWA] from July 1, 2015 to the present.

21. A copy of any report or analysis related to any potential monetization of the 

[CWA].

22. Copies of minutes from any meetings related to the City . . . since July 1, 

2015.

23. Copies of notes taken, memoranda prepared, or agendas in connection with 

any meetings related to the City . . . since July 1, 2015.

24 Copies of all communications, including letters, reports, memoranda, 

agendas, and emails, related to the City[’s] . . . Act 47 Recovery 

Coordinator’s report setting forth the financial condition of the City . . . and 

the Recovery Coordinator’s recommendation since July 1, 2015.

25. Copies of all communications, including letters, reports, memoranda, notes, 

and emails between [the Department], E[C]onsult . . ., McNees . . . and/or 

Fairmount . . . and the auditor general regarding the City . . . and[/]or the 

[CWA] since July 1, 2015.

(R.R. at 9a-11a.)
6

Following statutorily invoked and agreed-upon extensions for responding, 

the Department issued its response, denying the request, in part, on the ground that 

certain requested records, as pertinent to the issues raised on appeal, constituted 

internal, predecisional deliberations, consisting of “internal staff and contractor 

recommendations, comments to letters, reports and presentations, negotiation 

strategy, projections of cash flow, draft policy and budget proposals, that played a 

role in the Department’s Act 47 decision making process.” (Id. at 18a-19a.) 

Specifically, as Jennifer Fogarty, the Open Records Officer for the Department 

later affirmed (Fogarty Affirmation), the Department withheld the following 

records:

[The Department] redacted portions of several emails between the Act 

47 Team and [the Department] that reflect impressions, 

recommendations, and proposals related to the City’s proposed 

budget, addressing issues of debt service priorities, pension payments, 

debt financing and refinancing strategy, revenue sources, and labor 

negotiations and labor issues prior to a final decision of how to advise 

City Officials. These portions of records were redacted under the 

internal predecisional deliberation exemption . . . because they reflect 

[the Department’s] communications with its contractor and their 

counsel addressing budget recommendations.

[The Department] redacted portions of several email records between 

E[C]onsult staff, [the Department] staff, McNees attorneys, and the 

City’s Chief Financial Officer as internal predecisional deliberation of 

[the Department] staff with a City Official. The redacted text reflects 

City budget recommendations and impressions relating to City 

staffing, debt service payments, pension payments, and other issues 

related to achieving a balanced budget. These communications reflect 

the internal predecisional deliberations between the staff of one 

agency with the staff of another agency . . . .

[The Department] redacted certain portions of emails between 

E[C]onsult staff and McNees attorneys that request legal analysis 

and/or advice or that consist of McNees’s legal advice and 

impressions . . . . Some of the redacted emails of McNees’ responses 
7

. . . [are] also exempt as predecisional agency deliberations with its 

counsel because the advice relates to subject matter for which McNees 

was hired under the City Act 47 contract.

***

[The Department] withheld a series of 346 pages of emails exchanged 

between the Act 47 Coordinator Team, City Officials, the City 

Solicitor, the City Financial Advisor, [the Department], underwriter’s 

counsel, bond counsel and other professionals necessary to the bond 

transaction dated between June 2017 and late August 2017, leading up 

to and relating to a City August 2017 bond issuance. The withheld 

records reflect the confidential impressions, recommendations, draft 

notices, disclosure documents, ordinances and term sheets, comments 

to draft documents, financing strategy, and proposals related to an 

upcoming bond transaction exchanged between the City’s financial 

advisor, [the Department] staff, E[C]onsult, the Act 47 Coordinator, 

McNees counsel, City Officials, the City’s solicitors, the City’s 

financial advisor, bond counsel, and other professionals necessary to 

the closing of the transaction. These communications were internal to 

the bond transaction group and predecisional to the bond 

issuance . . . .

[The Department] did not provide an attachment from an email dated 

November 22, 2017, sent by . . . a McNees attorney, to [the 

Department] staff and Act 47 Coordinator staff . . . . [The 

Department] did not provide the attachment based on [the] internal 

predecisional communications exemption . . . . 

***

Requiring [the Department] to release the redacted portions of 

sensitive records as outlined above would severely compromise [the 

Department’s] ability to assist distressed cities with their fiscal 

problems under Act 47, by making it less likely that such information 

will be provided to [the Department]. [The Department] must have 

the ability to redact internal predecisional communications . . . it 

receives related to the City’s fiscal condition for [the Department] to 

be an effective partner with E[C]onsult, the Act 47 Coordinator, in 

providing sound advice to City Officials.

(Id. at 69a-71a.)5

 

5 The Department later produced a privilege index identifying, as relevant to this appeal, 

the following records or portions thereof which it withheld: Bates No. 100002, 100006, 100014, 

100016-18, 100023-30, 100032-39, 100045, 100047, 100049-52, 100054-70, 100072-85, 

(Footnote continued on next page...)
8

B. Requester’s Appeal to OOR

Requester filed an appeal under the RTKL with OOR, arguing that the 

Department had not provided sufficient information to meet its burden of showing 

that the records were exempt from disclosure. (Id. at 4a-5a.) In response, the 

Department submitted the Fogarty Affirmation, recounted above. Requester then 

submitted a memorandum of law arguing that the internal, predecisional 

deliberation exception did not apply because the withheld records were not 

maintained internally to one agency or among several agencies, but were “shared 

by and between the Department, EConsult, McNees, and Fairmount . . . , the City 

. . . and/or unexplained third parties.” (Id. at 84a.) Records that were shared or 

maintained externally had to be disclosed.

The OOR Appeals Officer (Appeals Officer) requested supplemental 

submissions addressing, inter alia, the issue of whether records created or received 

by third-party subcontractors were internal to the agency. (Id. at 290a.)

The Department argued that the internal, predecisional deliberation 

exception applied because the withheld records involved the Department’s 

communications with both EConsult and McNees and were generated at the 

Department’s express direction for the purpose of discussing, studying, and 

weighing various approaches to the challenges facing the City. (Id. at 359a.)

In further support, the Department offered affidavits from Adam L. Santucci, 

an attorney and member with McNees, and Stephen Mullin, the President and 

Principal of EConsult, which were almost identical. Santucci and Mullin stated 

_____________________________

(continued...)

100089-104, 100107-22, 100124, 100126-46, 100160-64, 100166-68, 100172, 200006, 200024-

25, 200028-30, 200032-43, 200045-47, 200185-228, 200242-44, 200246-51, 200291, 200293-

300, 200305-06. (Exemption Index, R.R. at 296a-300a; Final Determination at 18-20.)
9

that when the RFP was issued, EConsult and Fairmount “invited McNees to 

contribute to a joint response to the RFP, whereby McNees would provide the 

necessary legal experience.” (Id. at 362a, 366a.) With McNees part of the Act 47 

Coordinator team, “it was believed that a full-service Recovery Coordinator would

be created to provide all aspects of municipal finance, public policy, legal counsel 

and economic development consultation throughout the implementation of the 

recovery plan.” (Id.) McNees’ role was to advise the Department on the Recovery 

Plan’s compliance with Act 47, providing “guidance, legal advice, legal strategy 

and recommendations to EConsult and Fairmount,” which are the Department’s 

agents, so that the Department could help the City implement the Recovery Plan 

and exit its financially distressed municipality status. (Id.) In particular, McNees 

was expected first to consult with EConsult and Fairmount in order to identify and 

recommend legal options for reducing the past and future liability of the City. In 

addition, McNees was to evaluate recommendations from other members of the 

Act 47 team to ensure they complied with the law. In other words, legal and 

financial matters were intertwined. In order to make recommendations and 

analyze the recommendations of others, McNees had to “obtain and consider 

feedback from EConsult, Fairmount,” and the Department. (Id.)

In a supplemental memorandum of law, Requester argued that records 

shared by an agency with its contractors, subcontractors, third parties, or 

consultants were not internal to the agency. (Id. at 371a.) Requester argued that 

the internal element of the exception was not satisfied based on an agency 

relationship because EConsult and Fairmount were not agents of the Department. 

Requester asserted that the Department and EConsult have divergent interests, and 

that the Contract expressly disclaimed any agency relationship between the 
10

Department and EConsult. (Id. at 372a.) Therefore, there was no basis “to include 

either E[C]onsult or Fairmount . . . within the . . . internal designation” of the 

exception. (Id. at 374a.)

At OOR’s request, the Department provided a supplemental attestation 

identifying individuals copied on records submitted for OOR’s in camera review 

including financial professionals and their attorneys who had “no contract with [the 

Department] or Act 47 Coordinator.” (Id. at 429a-32a.)

C. OOR’s Final Determination

OOR, citing its own case law that records shared by an agency with those it 

has a contractual relationship are internal to the agency, concluded that records 

“exchanged by various Department and City officials, the Act 47 Coordinator 

Team, and legal and financial experts contracted to assist with the City’s Act 47 

plan” were considered internal. (Final Determination at 16, 20.) This included 

“consultants and contractors retained to provide professional legal and financial 

services in furtherance of the City’s Recovery Plan.” (Id. at 20.) However, OOR 

concluded that any records shared with the individuals identified in the 

Department’s supplemental attestation that did not have a contractual relationship 

with the Department, such as “various banking and bond professionals, as well as 

other ‘outside financial accounts, auditors, and asset managers,’” were not 

considered internal. (Id. at 21 (footnotes omitted).)

Requester now petitions this Court for review.6

 

6 Our standard of review of a final determination of OOR under the RTKL is de novo, 

while our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 

2013). “[W]e may substitute our own findings of facts for that of the agency or rely upon the 

record created below.” Pa. State Police v. Muller, 124 A.3d 761, 763 n.2 (Pa. Cmwlth. 2015).
11

II. Appeal to this Court

As in Finnerty I, Requester argues that OOR erred in concluding that the 

Department properly invoked the internal, predecisional deliberation exception 

because records shared with outside contractors cannot be considered internal to 

the agency. Requester notes that the RTKL “is silent as to contractors of a nonagency in a manner similar to the relationship between McNees and Fairmount . . . 

to E[C]onsult,” but that because exceptions under the RTKL should be interpreted 

narrowly, internal records should be limited to records shared within the agency or 

among several agencies. (Requester’s Brief (Br.) at 26.) Further, OOR’s own case 

law that considers records shared where there is a contractual relationship between 

the agency and a contractor is inapposite as McNees and Fairmount were 

EConsult’s contractors, not the Department’s. While the internal, predecisional 

deliberation exception has been extended to agents of the agency, “OOR did not 

and could not conclude that E[C]onsult, McNees and/or Fairmount . . . were agents 

of the Department.” (Id. at 28.) Rather, EConsult is an independent contractor of 

the Department, while McNees and Fairmount have some “unknown and unclear” 

relationship with EConsult. (Id.) As such, Requester asserts that OOR erred in 

insulating the withheld records from disclosure under the internal, predecisional 

deliberation exception.

The Department argues that records are internal if the agency has a 

contractual relationship with the party with whom communications are shared. 

The Department asserts that a contractual relationship exists between it, EConsult, 

Fairmount, and McNees, as they are all bound by the Contract, which obliges them 

to assist the Department with the financial and legal aspects of the Recovery Plan. 

It would serve no compelling public interest and undermine the purpose of the 
12

internal, predecisional deliberation exception to require disclosure of records 

shared between an agency, a contractor, and an essential subcontractor. Therefore, 

the Department argues OOR correctly concluded that the Department properly 

invoked the internal, predecisional deliberation exception.7

For the reasons we articulated in Finnerty I, we conclude that OOR correctly 

determined that the Department properly invoked the internal, predecisional 

deliberation exception to the withheld records. Finnerty I, __ A.3d at __, slip. op. 

at 13-19. The evidence established that there was a contract between the 

Department, EConsult, McNees, and Fairmount. The Department engaged 

EConsult, McNees, and Fairmount, pursuant to Act 47, to assist the Department in 

implementing the Recovery Plan to relieve the distressed status of the City. The 

withheld records contain communications between Department, EConsult, 

McNees, and Fairmount that were internal to the Department, and Requester does 

not otherwise challenge those communications as either not deliberative or 

predecisional. As such, the Department satisfied its burden of proof on the 

internal, predecisional deliberation exception to the withheld records and thus, we 

affirm OOR’s Final Determination concluding that the Department properly 

invoked the internal, predecisional deliberation exception to the withheld records.

 

7

In Requester’s reply brief, he argues that the internal, predecisional deliberation 

exception does not apply to “[a]ny records shared between McNees, Fairmount . . ., E[C]onsult, 

the City officials, [and] the City’s financial advisor and/or solicitor” because those records “are 

not ‘internal’ to the Department.” (Requester’s Reply Br. at 8.) Because this issue is raised for 

the first time in Requester’s reply brief, it is waived. Karkalas v. Dep’t of State, Bureau of Prof’l 

& Occupational Affairs, 71 A.3d 395, 398 n.8 (Pa. Cmwlth. 2013).
13

III. Conclusion

For the foregoing reasons, we affirm the Final Determination of OOR 

concluding that the Department properly invoked the internal, predecisional 

deliberation exception to the withheld records.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nolan Finnerty, :

Petitioner :

 :

 :

v. : No. 1090 C.D. 2018

 : 

Pennsylvania Department of :

Community and Economic :

Development, :

Respondent :

O R D E R

NOW, April 25, 2019, the Final Determination of the Office of Open 

Records issued July 11, 2018, holding that the Pennsylvania Department of 

Community and Economic Development properly invoked the internal, 

predecisional exception is AFFIRMED. The remainder of Nolan Finnerty’s 

petition for review is DISMISSED AS MOOT.

_____________________________________

RENÉE COHN JUBELIRER, Judge