IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angela Couloumbis and :

Sam Janesch, :

Petitioners : No. 160 C.D. 2022

:

v. : Argued: December 12, 2022

:

Senate of Pennsylvania, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION 

BY JUDGE McCULLOUGH FILED: July 18, 2023

Angela Couloumbis and Sam Janesch (collectively, Requesters) petition 

for review of the January 28, 2022 Final Determination of the Legislative Reference 

Bureau (LRB) Appeals Officer (LRB Appeals Officer), who affirmed the Senate of 

Pennsylvania (Senate) Open Records Officer’s (Senate ORO) partial denial of the

request for records sought from the Senate of Pennsylvania (Senate) by Requesters 

under the Right-to-Know Law (RTKL).1 Upon review, we vacate and remand.

2

I. FACTS AND PROCEDURAL HISTORY

1

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

2 A separate but similar appeal by Requesters regarding the RTKL and the Pennsylvania 

House of Representatives (House) is being decided contemporaneously with this appeal. See Janesch 

v. Pennsylvania House of Representatives (Pa. Cmwlth., No. 142 C.D. 2022, filed July 18, 2023). By 

Order dated May 9, 2022, this Court denied the joint application of Requesters, the House, and Senate

to consolidate the two appeals because the two cases have separate certified records as they are 

appeals from separate entities. However, because the two appeals are related, the cases were argued 

seriately. 
2

The relevant facts of this appeal are not in dispute. On October 15, 2021, 

Requesters submitted a RTKL request to the Senate ORO, seeking the following: 1) 

invoices, bills, vouchers, or other financial statements reflecting payment for legal 

work performed by outside law firms or individual lawyers for the Senate or its 

employees; 2) engagement or retainer letters signed by any Senate employee or Senate 

member to provide legal services; 3) expense reports detailing all payments for legal 

services to outside law firms or individual lawyers hired by the Senate; and 4) any other 

documents that identify the Senate’s legal engagements with outside law firms or 

lawyers (Request). (Reproduced Record (R.R.) 2a.) The Request covered the period 

between January 1, 2021, and October 15, 2021. Id. On October 19, 2021, the Senate 

notified Requesters that a 30-day extension was necessary to respond to the request as 

the response required redacting the records. See Section 902(a)(1), (4), and (7) of the 

RTKL, 65 P.S. §§ 67.902(a)(1), (4), (7); R.R. 8a. 

On November 19, 2021, the Senate’s ORO granted, in part, and denied, in 

part, the Request, and in total, provided 1,039 pages electronically to Requesters.3 

(R.R. 4a-8a.) The Senate provided a report of each caucus and the institutional offices, 

which was followed by copies of engagement letters and financial records covered 

within that report. The Senate denied the Request, in part, by redacting portions from 

the produced records.

4

 The Senate’s ORO explained that three sets of redactions were 

required under Section 706 of the RTKL, 65 P.S. § 67.706, including: (1) redaction of 

the Federal Tax identification number found within financial records as it is protected 

information under 26 U.S.C. § 6103(a); (2) redaction of the bank account numbers and 

3 The Senate used a digital sharing platform to share the documents on November 19, 2021. 

(R.R. 4a.) 

4 Redactions of records otherwise subject to disclosure are deemed denials of a RTKL request. 

See Section 706 of the RTKL, 65 P.S. § 67.706. 
3

routing information as a “confidential personal identification number”; and (3) 

redaction of information protected under the privileges of “attorney[ ]work product 

doctrine” and/or “attorney-client privilege” found within the lines of engagement 

letters and invoices outlining billable hours. (R.R. 4a-7a.) Moreover, the Senate stated: 

In providing access to the legal engagement letters and invoices, 

redactions were made in consideration of Levy v. Senate of 

[Pennsylvania], 65 A.3d 361, 373 (Pa. 2013) (approving 

redactions to legal invoices on attorney[-]client privilege 

grounds, holding descriptions of legal services that address the 

client’s motive for seeking counsel, legal advice, strategy, or 

other confidential communications are undeniably protected 

under the attorney[-]client privilege) and the attorney[ ]work 

product doctrine which allows the protection of the mental 

impressions and processes of an attorney acting on behalf of a 

client, regardless of whether the work product was prepared in 

anticipation of litigation. Bousamra v. Excela Health, 210 A.3d 

967, 976 (Pa. 2019).

(R.R. 6a.) (internal quotations omitted). 

On December 8, 2021, Requesters appealed the Senate ORO’s redactions 

to the Senate Appeals Officer, who recused, and the appeal was transferred to the LRB. 

(R.R. 10a-14a.) In their appeal, Requesters specifically challenged the redactions 

based on the attorney-client privilege and work product doctrine, and asserted the 

redactions were inappropriate under the Sunshine Act.5 Requesters also argued the 

Senate had not provided any evidence showing that the privileges claimed applied. 

(R.R. 13a.) Requesters requested that the LRB order all redactions be unveiled or, in 

the alternative, the LRB conduct in camera review of the records at issue. 

5

65 Pa. C.S. §§ 701-716. 
4

The Senate submitted a memorandum of law to the LRB reiterating it had 

properly redacted the records pursuant to the attorney-client and work product 

privileges, and further added that “many of the records produced to [Requesters] were 

also redacted on [the] basis of the speech and debate privilege.” (R.R. 224a.) In 

support, the Senate submitted a privilege log (Privilege Log) and four attestations of 

(1) Crystal H. Clark, Esq., General Counsel to the Senate Republican Caucus; (2) 

Megan Martin, Secretary of the Senate; (3) C.J. Hafner, II, Esq., Chief Counsel to the 

Senate Democratic Leader; and (4) Michael A. Sarfert, Esq., Counsel to the Senate 

Chief Clerk (Attestations). (R.R. 311a-61a.) 

The Privilege Log includes: 

1) The record type;

2) The record dates;

3) The authors;

4) The recipients;

5) A description of the legal work; and 

6) The legal basis for the redaction. 

(R.R. 348a-61a.) The Attestations each include, among other items, the following: 

1) The attestant’s name, position, and job responsibilities; 

2) The attestant’s familiarity with the Request; 

3) The details of the searches each performed for responsive documents; 

4) The individual attorneys and law firms who generated responsive 

documents; 

5) The specific categories, subjects, and topics of information that were 

redacted from the Request; and
5

6) The rationale why information was redacted under attorney-client, 

work product, and speech and debate privileges. 

(R.R. 311a-61a.) Additionally, one of the Attestations includes a specific example 

showing how the redactions were performed in a scenario where the subject matter was 

repeated in the engagement letter and the invoice. (R.R. 314a.) The Senate asserted 

that its comprehensive Privilege Log and four Attestations established that the 

redactions made to the 1,039 pages of records produced to Requesters were appropriate 

and justified. Furthermore, the Senate argued the Senate ORO’s “limited and focused” 

redactions of certain aspects of the records were necessary to preserve privilege. (R.R. 

215a.) 

By a decision dated January 28, 2022, the LRB Appeals Officer affirmed 

the partial denial of the Request. (Requesters’ Br., Ex. A.) The LRB Appeals Officer 

concluded that the redactions found in the produced engagement letters and invoice 

captions “were based on attorney-client ‘privilege’ or attorney[ ]work product 

doctrine.” (Requesters’ Br., Ex. A at 16-117.) The LRB Appeals Officer further 

concluded that Requesters failed to “provide[] any factual basis for objecting” to the 

Senate’s “characterization” that redactions based on the speech and debate privilege 

were “limited to those portions of the records containing descriptions of specific legal 

work performed within the sphere of legislative activity and confidential 

communications with legal counsel concerning legislative matters.” (Requesters’ Br., 

Ex. A at 11.) The LRB Appeals Officer determined that Requesters’ reliance on the 

Sunshine Act was misplaced as the appeal does not involve a public meeting. 

(Requesters’ Br., Ex. A at 12.) The LRB Appeals Officers expressly rejected 

Requesters’ demand for in[ ]camera review holding that “in-camera inspection would 

be inappropriate and unnecessarily intrude upon privilege.” (Requesters’ Br., Ex. A at 
6

8.) The LRB Appeals Officer conducted a line-by-line review of the produced 

documents and determined that “[a] focus on the redacted portion of each document 

verified that the likely content of the shaded sections is subject to redaction as a 

description of ‘the client’s motive for seeking counsel, legal advice, strategy, or other 

confidential communications[.]’” Id. 

Thereafter, Requesters petitioned for review to this Court.

II. ISSUES PRESENTED6

On appeal, Requesters assert the LRB erred in concluding that the 

Senate’s redactions of subject matter of outside attorneys’ services from engagement 

letters and invoice captions was proper under the RTKL. Requesters have narrowed 

the scope of their appeal and challenge only the redactions made to 24 of the 1,039 

pages produced, arguing that the redacted information is not subject to attorney-client 

privilege, the work product privilege, or the speech and debate privilege. (Requesters’ 

Br. at 9, 15-16.) 

Ultimately, Requesters are asking this Court to order either that the 

Request be released immediately or that the LRB hold a hearing and review the Request 

in camera. Requesters rely on the Pennsylvania Supreme Court’s interpretation of the 

RTKL in Levy, 65 A.3d 361, and argue an in camera review of the records is warranted 

because the engagement letters and invoice captions are unlikely to reveal privileged 

information. Additionally, Requesters argue that, like the information at issue in 

Reading Eagle Co. v. Council of City of Reading, 627 A.2d 305 (Pa. Cmwlth. 1993), 

6

Initially, Requesters objected to Kleinbard LLC’s representation of the Senate in this matter 

as the firm was among those whose records were subject to the Request and Requesters’ redaction 

challenges. The LRB Appeals Officer concluded that Kleinbard LLC was not required to withdraw 

its representation. (Requesters’ Br., Ex. A at 6-7). Requesters no longer seek review of that portion 

of the LRB Appeals Officer’s Final Determination. 
7

which was necessary to fulfilling the purposes of the Sunshine Act, the information at 

issue in this case is necessary to fulfilling the purposes of the RTKL.

III. DISCUSSION

A. Standard and Scope of Review

When deciding questions of law under the RTKL, such as whether certain 

information is exempt from disclosure by the attorney-client, attorney work product, 

or speech and debate privileges, our scope of review is plenary, and our standard of 

review is de novo. Levy v. Senate of Pennsylvania, 34 A.3d 243 (Pa. Cmwlth. 2011)

(Levy II). In reviewing matters under Section 1301 of the RTKL, 65 P.S. § 67.1301 

(pertaining to Commonwealth, legislative,

7

and judicial agencies or a judicial agency), 

“we act in our appellate jurisdiction, but we independently review the appeals officer’s

orders, and we may substitute our own findings of fact.” Id. (citing Bowling v. Office 

of Open Records, 990 A.2d 813, 818 (Pa. Cmwlth. 2010) (en banc)). See also Padgett 

v. Pennsylvania State Police, 73 A.3d 644, 646 n.3 (Pa. Cmwlth. 2013). 

B. Applicable Law

1. Privilege Generally 

The RTKL 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.” Pennsylvania State Police v. 

McGill, 83 A.2d 476, 479 (Pa. Cmwlth. 2014). The exceptions to disclosure of public 

records must narrowly be construed. Id. 

Pursuant to Section 701(a) of the RTKL, legislative or financial records 

generally are accessible to the public unless otherwise provided by law. 65 P.S. § 

7 The Senate is a “legislative agency.” Section 102 of the RTKL, 65 P.S. § 67.102. 
8

67.701(a). Similarly, legislative records8in the possession of a legislative agency are 

presumed to be available to the public unless exempted under Section 708 of the RTKL, 

65 P.S. § 67.708, exempted under any other Federal or State law, regulation, or judicial 

order or decree, or are protected by a privilege. Section 305(b) of the RTKL, 65 P.S. 

§ 67.305(b). Privileged documents also are excluded from the definition of “public 

record” under Section 102 of the RTKL, 65 P.S. § 67.102. The RTKL defines privilege 

to include “[t]he attorney[ ]work product doctrine, the attorney-client privilege, the 

doctor-patient privilege, the speech and debate privilege or other privilege recognized

by a court interpreting the laws of this Commonwealth.” Id. Although an agency has 

some discretion under the RTKL to release otherwise exempt records, it lacks 

discretion to release a privileged record. Section 506(c)(2) of the RTKL, 65 P.S. § 

67.506(c)(2). The RTKL permits the redaction of the “information which is not subject 

to access” should the legislative record contain information that is protected by 

privilege. Section 706 of the RTKL, 65 P.S. § 67.706. 

Where an agency is asserting a privilege, the agency bears the burden of 

proof to demonstrate by sufficient facts that the privilege applies. Levy, 34 A.3d at 249

(citing, in part, Department of Transportation v. Office of Open Records, 7 A.3d 329, 

335 (Pa. Cmwlth. 2010)). See also Section 903(2) of the RTKL, 65 P.S. § 67.903(2) 

(where an agency denies a RTKL request, in whole or in part, the agency must state in 

writing the “specific reasons for the denial, including a citation of supporting legal 

authority”). 

2. The Levy Decisions 

Because the Levy decisions decided by this Court and the Pennsylvania 

Supreme Court are germane to this appeal, we begin by reviewing them here at length.

8 Legislative records include financial records. Section 102 of the RTKL, 65 P.S. § 67.102. 
9

All three decisions involve the same set of facts and the same two RTKL requests. In 

Levy II, we considered the appeal of Marc Levy, an Associated Press Member, from 

the decision of the Pennsylvania Senate’s Open Records Appeals Officer. Levy 

requested documents in categories very similar to those involved in this case: bills, 

contracts, and payment records relating to the retention of outside counsel by one 

individual senator and any current or former member of the Senate Democratic Caucus. 

The Senate produced many responsive records with substantial redactions of both client 

identities and descriptions of the legal work provided, relying on the attorney-client 

privilege to justify the redactions. Levy appealed. Before the Senate Appeals Officer, 

the Senate asserted additional reasons for the redactions, including the attorney work 

product privilege and the grand jury and criminal investigation exemptions. The Senate 

Appeals Officer ultimately concluded that the Senate had not provided sufficient 

information to satisfy all of the elements of the attorney-client privilege and 

accordingly permitted the Senate to supplement the record with affidavits or other 

additional evidence. Levy appealed to this Court before the Senate provided any 

further evidence. Levy I, 34 A.3d at 244-45. 

This Court ordered in camera review of the Senate’s redactions by Senior 

Judge James R. Kelley, acting as Special Master. After receiving Special Master Judge 

Kelley’s report and recommendations, an en banc panel of this Court concluded that 

client identities and most general descriptions of legal services were not protected by 

the attorney-client privilege. We further concluded, however, that specific legal 

descriptions that would reveal confidential communications between attorney and 

client appropriately were redacted. We finally concluded that the Senate had waived 

all alternative legal grounds supporting the redactions because it raised them for the 
10

first time before the Senate Appeals Officer. We accordingly affirmed, in part, and 

reversed, in part, the Senate Appeals Officer’s final determination. Id. at 250-52, 255. 

The Pennsylvania Supreme Court granted the Senate’s allocatur petition 

to consider three issues: (1) whether client identities are protected by the attorney-client 

privilege, (2) whether descriptions of legal services are protected by the attorney-client 

privilege, and (3) whether an agency waives any reasons for non-disclosure that were 

not asserted in the initial written denial. Levy II, 65 A.3d at 367. The Pennsylvania 

Supreme Court ultimately affirmed this Court’s decision that client identities and 

general descriptions of legal services are not protected by the attorney-client privilege. 

The Pennsylvania Supreme Court reversed, however, our determination that the Senate 

had waived its alternative grounds for non-disclosure. The Court, therefore, remanded 

to this Court for our consideration of whether the attorney work product privilege, 

grand jury secrecy, and criminal investigation exemptions applied to support the 

Senate’s redactions. Id. at 383. On remand, in pertinent part, we concluded that the 

attorney work product privilege did not protect from disclosure general descriptions of 

legal services. Levy v. Senate of Pennsylvania, 94 A.3d 436, 444 (Pa. Cmwlth. 2014) 

(Levy III). Specific descriptions of legal services, however, as we concluded in Levy I, 

remain protected by the attorney-client privilege. Id. at 444 n.9. 

3. Attorney-Client Privilege 

The Pennsylvania Supreme Court in Levy II summarized as follows the 

attorney-client privilege, particularly as it relates to the purposes of the RTKL: 

[The Pennsylvania Supreme Court] has repeatedly noted that the 

attorney-client privilege is deeply rooted in our common law and 

is the most revered of our common law privileges. The General 

Assembly has defined attorney-client privilege identically for 
11

purposes of criminal and civil law . . . .

[9] We recently observed 

that the purpose of the attorney-client privilege is to encourage 

full and frank communication between attorneys and their clients 

and thereby promote broader public interests in the observance 

of law and administration of justice. We acknowledged, 

however, that the attorney-client privilege is often in tension with 

the truth-determining process of the justice system, and, in this 

case, with the RTKL’s goal of government transparency. In 

balancing these competing purposes, we note that not all 

information passed between client and attorney is privileged, but 

rather the privilege is limited to communications related to the 

legal advice sought by the client. 

Levy II, 65 A.3d at 368-69. See also Levy I, 34 A.3d at 248 (internal citations and 

quotations omitted). Further, 

the determination of the applicability of the attorney-client 

privilege does not turn on the category of the information, such 

as a client’s identity or address, or the category of a document, 

such as whether it is an invoice or fee agreement. Instead, the 

relevant question is whether the content of the writing will result 

in disclosure of information otherwise protected by the attorneyclient privilege. For example, descriptions of legal services that 

address the client’s motive for seeking counsel, legal advice, 

strategy, or other confidential communications are undeniably 

protected under the attorney client privilege. In contrast, an entry 

that generically states that counsel made a telephone call for a 

specific amount of time to the client is not information protected 

by the attorney-client privilege but, instead, is subject to 

disclosure under the specific provisions of the RTKL.

9

See 42 Pa. C.S. §§ 5916, 5928 (“[In a criminal or civil matter,] counsel shall not be competent 

or permitted to testify to confidential communications made to him by his client, nor shall the client 

be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the 

client.”). 
12

Id. at 606 (internal citation omitted).10 To establish the application of the attorneyclient privilege, an agency must demonstrate the following: 

(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; and 

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

the client. 

Pennsylvania Department of Education v. Bagwell (Bagwell 2015), 114 A.3d 1113, 

1123-24 (Pa. Cmwlth. 2015) (citing, in part, Nationwide Mutual Insurance Company 

v. Fleming, 924 A.2d 1259 (Pa. Super. 2007), aff’d by an equally divided court, 992 

A.2d 65 (Pa. 2010)). 

10 Senior Judge Kelley, Special Master in Levy I, concluded as follows regarding whether 

and to what extent descriptions of legal services may be redacted under the attorney-client privilege: 

To the extent that the documents specify the issues or laws researched by 

the attorneys, specific services provided and the names of individuals with 

whom the attorneys communicated, the Special Master agrees that such 

information has the potential to reveal the confidential communications 

shared by attorney and client, the motive of the client in seeking 

representation and litigation strategy, and is privileged. However, to the 

extent that the redacted information relates to the general nature of the 

services performed, e.g., memo, telephone call, research, such general 

descriptions of the work performed are not subject to the attorney-client 

privilege and are not entitled to redaction.

Levy I, 34 A.3d at 257. See also Levy II, 65 A.3d at 373 (“[W]e approve . . . Special Master Judge 

Kelley’s careful line-by-line analysis . . . .”). 
13

4. Work Product Privilege

This Court, in Levy III, described as follows the attorney work product 

privilege and its interplay with the RTKL as follows: 

Application of the attorney work[ ]product [privilege] is 

described in [Pennsylvania Rule of Civil Procedure (Pa. 

R.Civ.P.)] 4003.3, which precludes “disclosure of the mental 

impressions of a party’s attorney or his or her conclusions, 

opinions, memoranda, notes or summaries, legal research or 

legal theories.” In the RTKL context, the doctrine protects the 

mental impressions, theories, notes, strategies, research and the 

like created by an attorney in the course of his or her professional 

duties, particularly in anticipation or prevention of litigation 

from disclosure. 

The work[ ]product [privilege], while closely related to the 

attorney-client privilege, provides broader protection. The 

doctrine protects any material prepared by the attorney in 

anticipation of litigation, regardless of whether it is confidential. 

The underlying purpose of the work product doctrine is to guard 

the mental processes of an attorney, providing a privileged area 

within which he can analyze and prepare his client’s case. The 

purpose is not to shield mundane and uninforming entries in 

billing records, such as the bare fact that a telephone conference 

occurred. 

Levy III, 94 A.3d at 446 (internal citations and most internal quotations omitted). See 

also BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019); Heavens v. Pennsylvania 

Department of Environmental Protection, 65 A.3d 1069, 1077 (Pa. Cmwlth. 2013). In 

considering the distinction between unprotected general descriptions of legal services 

and non-disclosable descriptions that would reveal protected information, we reasoned: 

Although the general descriptions such as drafting a memo, 

making telephone call, performing research, observing a trial, 

reflect work performed, without further detail[ ]they do not reveal 

an attorney’s mental impressions, theories, notes, strategies, 
14

research and the like. Disclosure of the general tasks performed 

in connection with the fee charged reveals nothing about 

litigation strategy. They simply explain the generic nature of the 

service performed and justify the charges for legal services 

rendered. Where, as here, the taxpayers are footing the bill for 

the legal services, they are entitled to know the general nature of 

the services provided for the fees charged. Thus, we conclude 

such rote entries regarding the general nature of legal services 

performed are not entitled to protection under the work[ ]product 

doctrine.

Levy III, 94 A.3d at 444 (internal citations and footnote omitted). 

5. Speech and Debate Privilege 

In addition to the attorney-client privilege and work product privilege, the 

RTKL also defines the speech and debate privilege. Section 102 of the RTKL, 65 P.S. 

§ 67.102. Importantly, not all activities of state legislators are protected by the speech 

and debate privilege. League of Women Voters of Pennsylvania v. Commonwealth, 

177 A.3d 1000, 1005 (Pa. Cmwlth. 2017) (League of Women Voters I). To assert the 

speech and debate privilege, the agency asserting the privilege must establish that the 

information concerns activity “within the sphere of legitimate legislative activity.” Id. 

“Legitimate legislative activities” include “fact-finding, information gathering, and 

investigative activities, which are essential prerequisites to the drafting of bills and the 

enlightened debate over proposed legislation.” Id. at 1003 (quoting Government of the 

Virgin Islands v. Lee, 755 F.2d 514, 521 (3d Cir. 1985)).

C. Analysis

Requesters do not dispute that the attorney-client and work product 

privileges apply to RTKL requests for legislative records and may support redactions 

of privileged information. They also do not argue that the Senate has made redactions 

of client identities or general descriptions of legal services in direct violation of the 
15

Levy decisions. Rather, Requesters contend that the Senate’s proffered evidence is 

“vague and conclusory.” (Requesters’ Br. at 18.) Requesters further assert the Senate 

has not met its burden of establishing the speech and debate privilege as the evidence 

is “boilerplate recitations” of the privilege parameters. (Requesters’ Br. at 22.) We 

address Requesters’ issues in turn.

1. Subject Matters 

Requesters argue that the Senate and the LRB interpreted the Levy

decisions too broadly to protect general description of the subject matters of the 

Senate’s legal representation by outside firms. Requesters argue that the Senate 

redacted general information that is “highly unlikely to convey client confidences or 

otherwise fall within the ambit of one of the Senate’s asserted privileges.” (Requesters’ 

Br. at 11.) Requesters contend that subject matters in engagement letters and invoices 

may be protected by the attorney-client and work product privileges, but only, under 

Levy II, where the revelation of those subject matters would reveal the client’s motive 

for seeking legal counsel, legal advice, strategy, or other confidential communications. 

(Requesters’ Br. at 21.) Requesters argue that “[t]he public needs to know the general 

subject matter of the Senate’s legal engagements in order to ‘scrutinize the actions of 

public officials’ and to ‘make public officials accountable for their actions’ – the 

RTKL’s central aims.” (Requesters’ Br. at 21-22.) Requesters further argue that 

“[p]ublic scrutiny can have only a limited effect if the Senate is permitted to conceal 

from the public even the most basic, general information about its reasons for engaging 

outside attorneys.” (Requesters’ Br. at 22.) 

Pursuant to the Levy decisions, general descriptions of legal services, i.e., 

that a lawyer made a telephone call, had a meeting, or sat in conference with other 

lawyers or the client, are not protected and may not be redacted from attorney invoices 
16

or engagement letters. Specific descriptions of legal services that would divulge 

confidential client communications or an attorney’s mental impressions, legal theories 

or analysis, notes, strategies, and the like are protected. Levy II, 65 A.3d at 373; Levy 

I, 34 A.3d at 254; Levy III, 94 A.3d at 444. These are the only general categories of 

privileged information of which the Levy decisions speak. Their application and the 

propriety of any redactions made by an agency to a RTKL document production on the 

grounds of privilege must be addressed on a case-by-case basis. Thus, whether subject 

matters in engagement letters and invoices may be redacted depends on whether their 

disclosure would compromise the protection of the confidential information identified 

above. If not, then the privileges do not apply and the subject matters must be 

disclosed. 

Here, the Senate redacted subject matters from the 24 engagement letters 

and invoices in dispute. The information remaining on the engagement letters and 

invoices is general information revealing that outside legal counsel was retained, 

hourly rate, and billable hours, among other information. The Senate’s Privilege Log 

and Attestations explain that the redactions were made because the 24 subject matters 

would reveal client motives for seeking counsel or some other category of protected 

information. Moreover, the Attestations provide a general description of the legal 

services provided, i.e., phone calls with clients and drafting of legal documents, and 

the Privilege Log provides more specific information, i.e., legal advice regarding labor 

and employment matters. (R.R. 348a-61a.) We conclude that although the Senate 

asserts the categorical protection of production of subject matters of legal 

representations, whether contained in engagement letters or invoices, the Levy

decisions do not provide for such categorical protection. Rather, each subject matter 

is to be analyzed independently to determine whether its disclosure would compromise 
17

confidential information. Thus, to determine whether the Senate appropriately redacted 

the subject matters, we must determine whether the Attestations and the Privilege Log 

were sufficient. 

2. Attestations and Privilege Log 

One method an agency may use in meeting the burden of proof that a 

record is exempt from disclosure is through relevant and credible testimonial affidavits 

or attestations. Payne v. Pennsylvania Department of Health, 240 A.3d 221, 226 (Pa. 

Cmwlth. 2020); Sherry v. Radnor Township School District, 20 A.3d 515, 520-21 (Pa. 

Cmwlth. 2011). In addition, a privilege log can serve as sufficient evidence to establish 

that a record is exempt from disclosure, particularly where the information in the log 

is bolstered with averments in an attestation. Smith on behalf of Smith Butz, LLC v. 

Pennsylvania Department of Environmental Protection, 161 A.3d 1049, 1059 n.5 (Pa. 

Cmwlth. 2017). Privilege logs typically list the date, record type, author, recipients, 

and description of the withheld record. Id.

Here, the Senate provided three relevant Attestations addressing the 

redactions and the Senate’s asserted privileges.11 These Attestations include 

conflicting statements of what was redacted from the documents. Specifically, the 

Attestation of Michael A. Sarfert, Esq., states: “With regard to the redactions for 

attorney-client privileged information, I was careful to not make any blanket 

redactions.” (R.R. 340a) (emphasis added). However, two Attestations state that the 

subject matter of an engagement is redacted from engagement letters and the file name 

assigned by outside counsel in most circumstances or situations “where the 

11 The Senate submitted four Attestations in support of all redactions made to the 1,039 pages 

of records produced in response to the Request. (R.R. 312a-46a.) This appeal is limited to 24 pages 

of the original 1,039 pages produced, and therefore, because the Attestation of Secretary Megan 

Martin does not reference the 24 pages in dispute, this Attestation can be disregarded for the purposes 

of this appeal. (R.R. 335a-37a.) 
18

representation is not otherwise a matter of public record in a court of law.” (R.R. 

314a, 330a., 341a-42a) (emphasis added). Thus, the Attestations contradict themselves 

by stating no blanket redactions were done, but then stating the Senate categorically 

redacted information if the litigation is not filed in a court of law. The Levy decisions 

do not support such blanket redactions because subject matter redactions must be done 

on a case-by-case basis. Moreover, the example provided in Crystal H. Clark, Esq.’s 

Attestation describing an engagement letter, invoice, and file name to all include 

“medical marijuana” is inapposite. Although the example provided for consistent 

redactions across all applicable documents, “medical marijuana” does not reveal 

privileged information such as mental impressions of an attorney or motive for the legal 

engagement. Therefore, we conclude that based on the Attestations, we do not have 

enough information to determine whether the Senate met its burden to establish the 

applicability of any of the privileges it asserts. 

Next, we turn to the Senate’s Privilege Log. The Senate’s Privilege Log 

notes the following reason for the redactions at issue: “Engagement letter and legal 

invoices reflecting confidential communications with client for purposes of securing 

legal advice regarding legislative matter and describing legal services performed 

regarding same[.]” (R.R. 350a-61a.) (emphasis added). We note the Privilege Log 

asserts for these same documents a combination of attorney-client, work product, and 

speech and debate privileges. This blurs the line between these privileges. Moreover, 

the type of information contained in engagement letters and captions of invoices is

unlikely to reveal “a fact of which the attorney was informed by the client, without the 

presence of strangers, for the purpose of securing an opinion of law, legal services or 

assistance in a legal matter.” Pennsylvania Department of Education v. Bagwell, 131 

A.3d 638, 656 (Pa. Cmwlth. 2016) (Bagwell 2016) (citation omitted). This information 
19

in engagement letters and captions of invoices also is unlikely to reveal “the mental 

impressions” of any attorney involved. Id. at 657 (citation omitted). Neither attorneyclient nor work product privilege protects “mere facts.” Id. at 657 (citation omitted). 

The Privilege Log states only generally that the engagement letters and invoices 

contained “confidential communications with client for purposes of securing legal 

advice.” (R.R. 350a-61a.) We, therefore, conclude that based upon the information 

provided in the Privilege Log, we cannot determine whether the redactions were 

appropriately made pursuant to both the attorney-client and work product privileges.12 

3. In Camera Review

It is well established that where an agency sufficiently explains the basis 

for non-disclosure through attestation, privilege log, or both, in camera review is not 

necessary. UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of 

Human Services, 187 A.3d 1046, 1060 (Pa. Cmwlth. 2018). As in Levy I, in camera

review in certain circumstances is both available and helpful to this Court in deciding 

RTKL matters. Because, without more information we cannot determine if the Senate 

has met its burden to establish the applicability of either the attorney-client or work 

product privileges to its redactions, we conclude that in camera review is necessary.

D. CONCLUSION

12 Although we conclude that the Attestations and Privilege Log are inadequate to enable us 

to determine whether the Senate’s redactions are appropriate on any of the asserted grounds, we 

nevertheless conclude that, in any event, the speech and debate privilege was not created for the types 

of records subject to this Request. The Pennsylvania Supreme Court has disapproved that such a 

testimonial privilege exists and stated, in dicta: “[t]his Court has never interpreted our Speech and 

Debate Clause as providing anything more than immunity from suit, in certain circumstances, for 

individual members of the General Assembly.” League of Women Voters of Pennsylvania v. 

Commonwealth, 178 A.3d 737, 767 n.38 (Pa. 2018). Therefore, we conclude that the speech and 

debate privilege categorically cannot protect subject matters in engagement letters and invoices and 

therefore may not be relied upon by the Senate to support its redactions. 
20

For the foregoing reasons, we remand for in camera review by the LRB 

Appeals Officer of only the subject matters contained in the engagement letters and 

invoice captions identified by Requesters in the Reproduced Record from pages 364a 

to 387a.

13

 Accordingly, we vacate the LRB Appeals Officer’s Final Determination and 

remand with further instructions.

_______________________________

PATRICIA A. McCULLOUGH, Judge

13 The challenged redactions correspond with entries in the Senate’s Privilege Log that can be 

found in the Reproduced Record at pages 349a, 350a, 355a, 357a, 359a, and 361a.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angela Couloumbis and :

Sam Janesch, :

Petitioners : No. 160 C.D. 2022

:

v. :

:

Senate of Pennsylvania, :

Respondent :

ORDER

AND NOW, this 18th day of July, 2023, the Final Determination of the 

Legislative Reference Bureau (LRB) Appeals Officer dated January 28, 2022 is 

hereby VACATED. This matter is REMANDED to the LRB to hold an in camera

review to determine whether only the subject matters contained in the engagement 

letters and invoice captions identified the Reproduced Record from pages 364a to 

387a are exempt from disclosure under either the attorney-client or work product 

privileges. The LRB need not consider whether any redactions are supported by the 

speech and debate privilege. 

The Senate shall produce to the LRB for in camera inspection 

unredacted copies of the responsive documents challenged in this appeal. The LRB 

shall issue a determination regarding the validity of the Senate’s redactions within 

180 days of the date of this Order. Those documents which the LRB determines are 

protected by those privileges shall not be unredacted by the Senate of Pennsylvania 

to Angela Couloumbis and Sam Janesch. The Senate may appeal any directed 

disclosure in accordance with the Right-to-Know Law, Act of February 14, 2008, 

P.L. 6, 65 P.S. §§ 67.101-67.3104. 
Jurisdiction relinquished. 

________________________________

PATRICIA A. McCULLOUGH, Judge