The Commonwealth Court has rescinded its ruling directing the state Office of Open Records to conduct a review to determine whether portions of Gov. Tom Corbett's calendars that were redacted before being made public were exempt from disclosure.
The reason portions of the calendar were redacted was because the Right-to-Know Law provides a disclosure exception for records that reflect "predecisional deliberations."
But in June, a deeply divided Commonwealth Court ruled -- in Office of the Governor vs. Scolforo -- that a private review by the Office of Open Records may be necessary in situations where an agency's affidavits are insufficient to show that records are exempt under the state's Right-to-Know Law.
The court ruled 4-3 to vacate the Office of Open Records order directing Mr. Corbett's office to disclose unredacted versions of the calendars, and instead remanded the case back to the records office so it could conduct an "in camera" -- that is, in person but private -- review of the calendars.
But on July 25, the court issued a one-page order, signed by President Judge Dan Pellegrini, granting the petition for reargument filed by Mr. Corbett's office, and withdrawing its June 7 opinion and order.
Writing for the majority in June, Judge Renee Cohn Jubelirer cited the U.S. District Court for the Eastern District of Pennsylvania's 1993 ruling in Manchester v. Drug Enforcement Administration, which held that "in camera" review may be necessary where agency affidavits do not offer detailed enough justifications for failing to disclose records.
Judge Jubelirer said that in cases where it is difficult for an agency to explain in an affidavit why a record is deliberative without disclosing the deliberative information, "in camera" review is sometimes necessary.
Judge Jubelirer was joined by Judge Pellegrini, and Judges Patricia A. McCullough and Bonnie Brigance Leadbetter.
In June, Judge Robert Simpson penned a dissenting opinion, saying he disagreed with the majority that an in camera review was an appropriate remedy to an insufficient affidavit and that such a ruling creates "a new, time-consuming process which rewards vagueness and burdens requesters."
In "Office of the Governor vs Scolforo," Associated Press reporter Mark Scolforo submitted a right-to-know request to Mr. Corbett's office, seeking calendars and emails he sent dating back to his inauguration day.
Mr. Corbett's office provided some of the requested records, but redacted one personal telephone number from the produced emails, saying it constituted personal identification information.
The office also explained it did not produce 17 emails that reflected internal "predecisional" deliberations, which are exempt under Pennsylvania's Right-To-Know Law.
Mr. Corbett's office also redacted 28 calendar entries it claimed were exempt.
Mr. Scolforo appealed to the records office, Mr. Corbett's office submitted affidavits to the agency in support of its reasoning for withholding some of the requested records.
The records office then denied Mr. Scolforo's appeal regarding the emails, but ordered Mr. Corbett's office to turn over unredacted copies of the calendars, finding that the calendars were not protected by the law.
Judge Jubelirer disagreed.
"Calendar entries are unique in that they are commonly used for more than just scheduling appointments," she wrote. "Calendars may contain the topic of the meeting, along with specific points that are to be discussed, or proposed actions, along with a list of the individuals scheduled to attend the meeting."
Judge Jubelirer also said that other states have required in camera reviews of records their governors had claimed were privileged when the evidence was not sufficient to show they were exempt from disclosure.
A Corbett spokesman said the office is "confident and hopeful" it will prevail on reargument.
Mr. Scolforo's attorney also could not be reached for comment.legalnews