IN THECOMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Public UtilityCommission,

Petitioner

v.

Sunrise Energy, LLC (OOR),Respondent

::::::::

Docket No. 504 C.D. 2017

BRIEF OF PETITIONERPENNSYLVANIA PUBLIC UTILITY COMMISSION

On Petition for Review of the Order of the Office of Open Records EnteredMarch 27, 2017 at Docket No. AP 2017-0079

Elizabeth Lion JanuzziAssistant Counsel

John E. HerzogDeputy Chief Counsel

Bohdan R. PankiwChief Counsel

Counsel for Pennsylvania PublicUtility Commission

P.O. Box 3265Harrisburg, PA 17105-3265(717) 787-5000

Dated: August 24, 2017

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF JURISDICTION ........................................................................1

ORDER OR OTHER DETERMINATION IN QUESTION ...................................2

STATEMENT OF THE QUESTIONS INVOLVED................................................4

STATEMENT OF SCOPE AND STANDARD OF REVIEW.................................3

STATEMENT OF THE CASE..................................................................................5

I. Form Of The Action And Procedural History .............................................5

II. Facts Of The Matter ......................................................................................6

A. Factual History .....................................................................................6

1. The Original RTKL Request Filed By Hommrich ....................6

2. The PUC’s Final Determination Denying AccessTo Attorney Work Product ...........................................................9

3. Appeal To OOR By Counsel for Sunrise Energy, LLC ...............9

B. Statement Of The Order Or Determination Under Review ............13

SUMMARY OF THE ARGUMENT ......................................................................14

ARGUMENT ...........................................................................................................16

I. PUC Attorneys’ Emails With FirstEnergy’s Counsel In The Courseof Legal Representation Of The Agency, Which Were Not DisclosedTo A “Third Party,” Are Privileged Attorney Work Product ExcludedFrom The Definition Of “Public Record” Under The RTKL ......................17

A. The PUC Attorneys’ Emails Constitute Opinion AttorneyWork Product .....................................................................................17

ii

B. The Attorney Work Product Emails Between PUC AttorneysAnd Counsel For FirstEnergy Were Not DisclosedTo A “Third Party” .............................................................................21

II. Attorney Work Product Privilege Is Not Waived By Disclosure ToA Third Party Counsel With a Shared Legal Interest, Where DisclosureDid Not Increase Likelihood Of Disclosure To An Adversary.....................23

III. OOR’s Order Infringes On The Pennsylvania Supreme Court’sExclusive Authority To Regulate The Practice Of Law ...............................29

IV. Sunrise Energy, LLC, Lacks Standing To Appeal To OOR As The“Requester,” Pursuant To Section 1101(a)(1) Of The RTKL ......................37

CONCLUSION........................................................................................................44

iii

TABLE OF AUTHORITIES

Cases

Bagwell v. Dep’t of Educ., 103 A.3d 409 (Pa. Cmwlth. 2014) .......................passim

Cannavo v. Poplar, 8 Pa. D. & C.3d 529 (Pa. Com. Pl. 1978) ..............................39

Chichester Kinderschool v. Department of Public Welfare,862 A.2d 119 (Pa. Cmwlth. 2004) ................................................................38

City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012) .........................31, 34

Commonwealth v. Kennedy, 876 A.2d 939 (Pa. 2005) ......................................18,20

Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) ....................14,17,20

Flexlume Corp. v. Norris, 98 Pa. Super. 530 (1930) ..............................................40

F.T.C. v. Grolier, 462 U.S. 19 (1983) .....................................................................18

Gillard v. AIG Ins., Co. 15 A.3d 44 (Pa. 2011) ......................................................21

Gmerek v. State Ethics Commission, 807 A.2d 812 (Pa. 2002) ..............................30

Hazer v. Zabala, 26 A.3d 1166 (Pa. Super. 2011) .............................................39,42

Hickman v. Taylor, 329 U.S. 495 (1947) .................................................... 18-19, 33

In re 1995 Audit of Middle Smithfield Township, 701 A.2d 793(Pa. Cmwlth. 1997) .......................................................................................38

In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) .................................................27

Joyner v. Southeastern Pa. Transportation Auth., 736 A.2d 35(Pa. Cmwlth. 1999) .......................................................................................26

Longenecker v. Commonwealth, 596 A.2d 1261 (Pa. Cmwlth. 1991) ...................39

iv

Lynnebrook and Woodbrook Associates, LP v. Borough of Millersville,963 A.2d 1261 (Pa 2008) ..............................................................................3

Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Cmwlth. 2011) ......................8

Office of Open Records v. Center Township, 95 A.3d 354(Pa. Cmwlth. 2014) .......................................................................................30

Office of the District Attorney of Philadelphia v. Bagwell,155 A.3d. 119 (Pa. Cmwlth. 2017) .....................................................30,36,37

Pa. Dep’t. of Conservation and Natural Res. v. Vitali, 2015Pa. Cmwlth. Unpub. LEXIS 479 (Pa. Cmwlth. July 7, 2015) ......................34

Pa. Public Utility Commission. Seder, 106 A.3d 193 (Pa. Cmwlth. 2014) ............17

Paterno et al. v. NCAA, 877 MDA 2015; 2017 Pa. Super. LEXIS 570(Pa. Super. 2017) ..........................................................................................19

Pennsylvania State Police, Bureau of Liquor ControlEnforcement v. Cantina Gloria's Lounge, Inc.,639 A. 2d 14 (Pa. 1994) ................................................................................3

Pa. Office of Attorney General v. Philadelphia Inquirer, 127 A.3d 57(Pa. Cmwlth. 2015 ..........................................................................................8

Rockwell Int'l Corp. v. U.S. Dep't of Justice,235 F.3d 598 (D.C. Cir. 2001) ......................................................................25

Schwab v. McDonald, (In re LMcD, LLC), 405 B.R. 555(Bankr. M.D. Pa. 2009) ...........................................................................40,41

Sunrise Energy, LLC, v. FirstEnergy Corporation and West Penn PowerCompany, No. 2015-578 (Washington Cty. C.C.P.) ......................................7

Sunrise Energy, LLC v. FirstEnergy Corp. and West Penn Power Company,148 A. 3d 894 (Pa. Cmwlth. 2016)appeal denied, 2017 WL 2860411 ..................................................................8

v

Sunrise Energy, LLC v. FirstEnergy Corporation, et al. 1282 CD 2015(Pa. Cmwlth. 2017) .........................................................................................7

United States v. Am. Tel. & Tel. Co., 642 F.2d 1285) (D.C. Cir. 1980).............25,27

United States v. Nobles, 422 U.S. 225 (1974) ........................................................18

West Chester Univ. of Pennsylvania v. Schackner, 124 A.3d 382(Pa. Cmwlth. 2015) ..................................................................................38,41

Constitutional Law

PA. CONST. art. V, § 10. ......................................................................................1,3,30

Statutes

43 Pa. C.S. ) ...................................................................................................1

43 Pa. C.S. )(2)................................................................................................1

65 P.S. § 67.101-67.3104 .......................................................................................3,6

65 P.S. § 67.102 .........................................................................................8,14,16,17

65 P.S. § 67.301(a) ..................................................................................................16

65 P.S. § 67.305(a)(2) .......................................................................................17, 22

65 P.S. § 67.306 .......................................................................................................16

65 P.S. § 67.506(c)(2) ........................................................................................23,31

65 P.S. §67.1101 ......................................................................................................16

65 P.S. §67.1101(a)(1) .....................................................................................passim

vi

65 P.S. §.1101(b)(3).................................................................................................11

65 P.S. §1102(b)(2) .....................................................................................................

65 P.S. § 67.1301 .....................................................................................................16

65 P.S. § 67.1301(a) ......................................................................................1,3, 5,16

73 P.S. §§1648.1-1648.8 ...........................................................................................7

Rules and Regulations

204 Pa. Code § 81.4 ................................................................................................31

Pa. R.C.P. 4003.3 ..................................................................................19, 26, 32, 35

Pa. R.P.C. 1.6(a) ............................................................................................30,31,35

Pa. R.P.C. 1.6 cmt. (3) .............................................................................................31

Pa. R.P.C. 1.6 cmt. (23) ...........................................................................................35

Pa. R.P.C. 1.6 cmt. (24) ...........................................................................................35

Other Authorities

Restatement of the Law, Third, Law Governing Lawyers, § 140 (1996) ...............24

Restatement of the Law, Third, Law Governing Lawyers, § 140comment b (1996) .........................................................................................25

Restatement of the Law, Third, Law Governing Lawyers (2000), § 91(4).............24

Ruderman v. City of Phila. Dep’t of Health,OOR Docket No. AP 2016-1259 ..................................................................42

Spatz v. City of Reading, OOR Docket No. AP 2013-0210 ...................................42

1

STATEMENT OF JURISDICTION

This Honorable Court has de novo appellate jurisdiction over this appeal

from the Office of Open Record's (OOR’s) Final Determination pursuant to

Section 1301(a) of the Right-to-Know Law (RTKL), 65 P.S. § 67.1301(a), and

Section 763(a)(2) of the Judicial Code, 43 Pa. C.S. § 763(a).

To the exent this appeal raises ancillary matters in the nature of prohibition

of OOR’s order from infringing on the Pennsylvania Supreme Court’s exclusive

authority to regulate the practice of law, in violation of Article V, Section10 of the

Pennsylvnia Constitution, PA. CONST. art. V, § 10, this Honorable Court maintains

orginal jurisdiction, pursuant to Sections 761 and 763(a)(2) of the Judicial Code,

43 Pa. C.S. §§ 761, 763(a)(2).

2

ORDER OR OTHER DETERMINATION IN QUESTION1

At issue is the Final Determination of the Office of Open Records (OOR)

issued March 27, 2017, by Magdalene C. Zeppos, Esq., Appeals Officer for OOR,

granting access to the Pennsylvania Public Utility Commission’s (PUC or

Commission) attorney work product email communication related to pending

litigation regarding Commission jurisdiction under the Alternative Energy

Portfolio Standards Act (AEPS Act), to adversary counsel in that litigation.

(Attached as Appendix A). The ordering paragraph stated as follows:

For the forgoing reasons, the Requester’s appeal is granted, and theCommission is required to provide the Requester with all recordsresponsive to the request within thirty days.

OOR Order 14

1 A companion Petition for Review before Commonwealth Court (503 CD 2017) was filed toappeal the OOR’s final determination a Docket. No. AP: 2016-2010.

3

STATEMENT OF SCOPE AND STANDARD OF REVIEW

This Court exercises de novo and plenary review of final determinations

of the Office of Open Records, including ancillary matters in the nature of

prohibition of OOR’s infringement on the exclusive authority of the Pennsylvania

Supreme Court to regulate the practice of law, in violation of Article V, Section 10

of the Pennsylvania Constitution, PA. CONST. art. V, § 10. See 65 P.S. § 67.1301(a)

(Commonwealth Court review of OOR’s final determinations).

In de novo review the court shall make its own findings of facts

and conclusions of law. See also, Pennsylvania State Police, Bureau of

Liquor Control Enforcement v. Cantina Gloria's Lounge, Inc., 639

A.2d 14, 18 (Pa. 1994).

There are no material facts at issue. All questions turn upon issues of

law, including statutory construction of the definition of “public record” under

the Right to Know Law 65 P.S. §§ 67.101-67.3104, application of the attorney

work product doctrine, and infringement upon the Pennsylvania Supreme

Court’s exclusive authority to regulate the practice of law. As such, the

standard of review is de novo, and the scope of review is plenary. See,

Lynnebrook and Woodbrook Associates, LP v. Borough of Millersville, 963

A.2d 1261, 1262, n.2 (Pa 2008).

4

STATEMENT OF THE QUESTIONS INVOLVED

1. Whether emails between PUC attorneys and counsel for FirstEnergy,for the purpose of representing the Commission’s shared interest inFirstEnergy’s legal position on jurisdiction under the AEPS Act,which were not disclosed to a “third party,” constitute attorney workproduct excluded from the RTKL’s definition of “public record?”

Suggested answer: Yes

2. Whether PUC attorneys waived attorney work product privilege where PUCattorneys, representing the agency’s legal interest in pending litigation and asAmicus Curiae supporting the third party’s legal position on jurisdictionagainst a common adversary, generated email communication with thirdparty’s counsel, which contained the attorneys’ factual and legal analysis?

Suggested answer: No.

3. Whether OOR’s order infringes on the Pennsylvania Supreme Court’sexclusive authority to regulate the practice of law by narrowing theapplication of the attorney work product doctrine for state agency attorneysand otherwise compelling disclosure of information subject to the SupremeCourt’s ethics-based rules of confidentiality?

Suggested answer: Yes.

4. Whether Sunrise Energy, LLC, lacks standing as the “Requester” to appealunder the RTKL, where the original RTKL request specified the “Requester”as “David N. Hommrich,” and was not filed in Hommrich’s official capacityas an officer of Sunrise Energy, LLC?

Suggested answer: Yes.

5

STATEMENT OF THE CASE

I. Form Of The Action And Procedural History

The Pennsylvania Public Utility Commission (Commission or PUC)

petitions for review of the March 27, 2017 Final Determination of the Office of

Open Records (OOR), granting the appeal by counsel for Sunrise Energy, LLC,

(Sunrise or Sunrise Energy) of the RTKL request originally filed by David N.

Hommrich (Hommrich or Requester). Sunrise seeks access to PUC attorneys’

work product email regarding pending litigation. The PUC appeals pursuant to

65 P.S. § 67.1301(a)(regarding appeal by agency via petition for review by

Commonwealth Court from OOR).

OOR found the PUC had offered sufficient evidence to establish the emails

were privileged attorney work product but, nevertheless, ordered disclosure based

on waiver of the privilege, due to “third party disclosure.” PUC attorneys,

representing the agency’s legal interest in pending litigation and as Amicus

Curiae supporting FirstEnergy’s legal position on PUC jurisdiction, generated

email communication with FirstEnergy’s counsel. The emails contained the

attorneys’ factual and legal analysis, i.e., draft legal briefs and arguments. OOR

found that PUC counsels’ disclosure of attorney work product to the third party’s

counsel operated to waive the privilege. OOR Order 13.

6

OOR overruled the Final Determination of the Secretary of the

Commission, the agency’s designated Open Records Officer (ORO), Rosemary

Chiavetta, Esq., denying the RTKL request filed by Requester, Hommrich (not

Sunrise Energy). Secretary Chiavetta denied access on the basis that the records

constitute privileged attorney work product, excluded from the definition of

“public records” under the Pennsylvania Right to Know Law and, therefore, are

precluded from disclosure. 65 P.S. §§ 67.101-67.3104.

R. 43a.

The PUC now appeals from OOR’s final determination. This appeal falls

under both the original and appellate jurisdiction of the Commonwealth Court.

The PUC seeks reversal of OOR’s Final Determination ordering disclosure of

attorney work product and prohibition of OOR’s order finding waiver of attorney

work product to the extent it infringes on the Supreme Court’s exclusive authority

to regulate the practice of law.

II. Facts Of The Matter

A. Factual History

1. The Original RTKL Request Filed By Hommrich

Pursuant to the RTKL, Hommrich’s request was for:

[C]opies of all e-mail and other forms of correspondencebetween FirstEnergy Corporation or West Penn PowerCompany and PUC employees between November 23, 2016

7

and October 17, 2016 regarding [Sunrise Energy, LLC v.FirstEnergy Corporation] Commonwealth Court Docket1282 CD 2015. I’m interested in any correspondence thatinvolves this case, or discusses this court’s ruling on thiscase..”

Emphasis added; R.14a.

On its face, Hommrich’s original RTKL request seeks communication

related to pending litigation in Commonwealth Court, Sunrise Energy, LLC v.

FirstEnergy Corporation, et al. 1282 C.D. 2015 (Pa. Cmwlth. 2017)

(Interlocutory Appeal2), arising on interlocutory appeal from pending litigation in

the Court of Common Pleas for Washington County, Sunrise Energy, LLC, v.

FirstEnergy Corporation and West Penn Power Company,3 No. 2015-578

(Washington Cty. C.C.P.) (Trial Court proceeding).

The PUC participated in the Interlocutory Appeal as Amicus Curiae in

support of FirstEnergy’s legal position on the sole question for review: PUC

jurisdiction to construe the terms of the AEPS Act. In representation of the

PUC’s legal interests, attorneys for the PUC generated email communication with

counsel for FirstEnergy monitoring the litigation regarding the shared legal

position on PUC jurisdiction, and exchanging draft legal arguments on the issue.

2 The sole issue on interlocutory appeal before Commonwealth Court was the legal question ofPUC jurisdiction to construe the provision of the Alternative Energy Standards Portfolio Act, Actof November 30, 2004, P.L. 1672, 73 P.S. §§1648.1-1648.8 (AEPS Act)

3Counsel for “FirstEnergy” collectively represents both FirstEnergy Corporation and itssubsidiary, West Penn Power Company. R. 69a.

8

The emails shared between counsel contain the attorneys’ factual and legal

analysis, i.e., draft legal briefs and arguments. The PUC filed an Amicus brief in

support of FirstEnergy’s legal position and in opposition to Sunrise’s legal

position in the proceeding.4

While the PUC participated as Amicus Curiae in the Interlocutory Appeal,

the PUC was not a party to either the Interlocutory Appeal or the underlying Trial

Court proceeding. In both the Interlocutory Appeal and the Trial Court

proceeding, Sunrise Energy and FirstEnergy are opposing parties.

In response to Hommrich’s RTKL request, the PUC conducted a search of

Commission communications regarding the Interlocutory Appeal using the search

criteria and dates specified by the request. The total number of communications

responsive to the search returned 31emails5 between PUC counsel and counsel for

FirstEnergy.

4 Commonwealth Court ultimately found that the trial court has jurisdiction to interpret termsunder the AEPS Act. Sunrise Energy, LLC v. FirstEnergy Corp. and West Penn PowerCompany, 148 A. 3d 894 (Pa. Cmwlth. 2016), appeal denied, 2017 WL 2860411.

5 All 31 emails consist of communication between PUC counsel and counsel for FirstEnergyregarding the pending litigation. “Record” is defined as including “[i]nformation, regardless ofphysical form or characteristics, that documents a transaction or activity of an agency. . . ” 65P.S. § 67.102. Attorney work product, i.e., voluntary communication with third party counsel,not compelled by the agency’s regulatory authority and related to the attorneys’ legalrepresentation of their respective clients, does not constitute an “agency transaction” and is not arecord of the agency. Further, the attorney’s miscellaneous non-substantive communication,discussing scheduling etc., are also not “records of an agency.” See Pa. Office of AttorneyGeneral v. Philadelphia Inquirer, 127 A.3d 57 (Pa. Cmwlth. 2015), and Mollick v. Township ofWorcester, 32 A.3d 859 (Pa. Cmwlth. 2011). To the extent any of the responsive recordsidentified do not constitute attorney work product, they are non-transactional email, not activityof the agency, and, therefore, not “public record” and not subject to disclosure.

9

2. The PUC’s Final Determination Denying Access To Attorney WorkProduct

The PUC’s ORO, Secretary Chiavetta issued a final determination denying

Hommrich’s request because the request sought communication between counsel

for the PUC and counsel for FirstEnergy pertaining to representation of the

PUC’s legal interests in ongoing and anticipated future litigation regarding PUC

implementation of the AEPS Act. Secretary Chiavetta concluded that the

communication constituted privileged attorney work product excluded from the

definition of “public record” under the RTKL, and, therefore, was precluded from

disclosure. 65 P.S. §§ 67.102; R. 14a.

3. Appeal To OOR By Counsel for Sunrise Energy, LLC

On January 17, 2017, an appeal to OOR was filed, not by Hommrich, the

Requester, but by counsel asserting representation of Sunrise Energy, LLC. R. 5a.

By the appeal, counsel for Sunrise sought access to attorney work product of both

an adversary (the PUC as Amicus in the Interlocutory Appeal opposing Sunrise’s

position on jurisdiction) and of opposing counsel (FirstEnergy as opposing counsel

in both the Interlocutory Appeal and the ongoing Common Pleas court

proceeding).6 R. 38a – 39a., 50a – 51a. FirstEnergy and their counsel were not

party to the appeal before OOR.

6 Hommrich, in his individual capacity, continues to challenge the Commission’s implementationof the AEPS Act in pending litigation before Commonwealth Court at 674 M.D. 2016.

10

The PUC filed a letter brief with OOR in response to Sunrise’s appeal

asserting: 1) that Sunrise Energy, LLC, lacks standing to appeal since it was not

the “Requester;” and 2) that the attorney work product privilege precludes

disclosure of the attorney work product of both the attorneys for the PUC and

counsel for FirstEnergy, pursuant to the RTKL. R. 33a. The PUC also filed

supporting affidavits of the PUC’s ORO Chiavetta, Deputy Chief Counsel Robert

Young, and Assistant Counsel Kriss Brown.

Deputy Chief Counsel Robert Young attested to the purpose and content of

the email exchanged with FirstEnergy as follows:

11) The emails at issue in the instant appeal were generated asCommission’s Counsel in Law Bureau monitored the common pleasproceeding with regards to legal and factual issues which we believedcould affect ongoing Commission proceedings, and for the purpose ofrepresentation of the Commission’s interest in the subject matter ofthe Commonwealth Court case identified in Hommrich’s RTK Lawrequest….

12) All of the emails constitute attorney work product as they pertain[to] the Law Bureau counsel’s representation of the Commission’slegal interests in the subject matter of ongoing legal actions andpotential future challenges to the PUC’s policy and implementation ofthe AEPS Act…

15) At no time has the Commission waived the legal privilege forthese communications to remain confidential. The communication offactual and legal analysis between PUC counsel and counsel forFirstEnergy was in furtherance of the PUC counsel’s legal duties onbehalf of the Commission and was obtained for the specific andexpress purpose of (1) providing legal advice to the Commissionwhether or not it was in the Commission’s interest to monitor theSunrise Energy common pleas case (and subsequent appellate action)

11

or participate by intervention or other means; (2) providing legaladvice and recommendations to our client as to the nature and extentof Commission participants; and (3) representing the Commission asan amicus curiae…

R. 40a, 41a, para. 11, 12 and 15.

The affidavits attest that the communication was generated in the course of

representation of the agency’s legal interest in pending and anticipated future

litigation of the PUC’s jurisdiction under the AEPS Act and in participation as

Amicus on appeal supporting FirstEnergy’s position on PUC jurisdiction. They

further attest that the emails contain the attorneys’ factual and legal analysis, i.e.,

draft legal briefs and arguments.7 R. 46a, 54a.

Sunrise replied to OOR asserting that PUC attorneys’ communication with

counsel for FirstEnergy, itself, constitutes “disclosure to a third party” which

waived the attorney work product privilege. R. 10a.

On February 8, 2017, OOR directed the parties to file supplemental

submissions on the issue of waiver of attorney work product.8 R. 91a. Sunrise

argued again that the very communication of work product “eviscerates the

privilege.” R. 99 – 100a.

7 The Commission's initial and supplemental submissions to the OOR expressly requested anevidentiary hearing if the OOR found that the supporting documentation was insufficient toestablish attorney work product protection for the records. R. 32a, 66a. Sunrise requested InCamera review, (R. 100a), which the Commission did not oppose. OOR did not conduct InCamera review or hold an evidentiary hearing as authorized in Sections 1101(b)(3) and1102(b)(2) of the RTKL, 65 P.S. §§ 1101(b)(3) and 1102(b)(2).

12

On March 27, 2017, OOR issued its Final Determination, at Docket

No. AP: 2017-0079, granting counsel for Sunrise access to the attorney work

product of an adversary in interest (PUC attorneys as Amicus) and to

Sunrise’s opposing counsel in both the pending Interlocutory Appeal and the

underlying Trial Court proceeding. OOR found Sunrise Energy, LLC, had

standing to appeal as the “Requester.” Id. at 6, 14.

OOR found that the Commission had offered sufficient evidence to

establish the emails constitute attorney work product.9 OOR Order 9.

Nevertheless, OOR found waiver of the attorney work product privilege by

applying the strict standard for waiver of attorney-client privilege via third-

party disclosure. OOR did not examine the circumstances under the broader

protection afforded attorney work product. Based on email communication

between PUC attorneys and counsel for a third-party, in representation of the

PUC’s legal interest in pending and future litigation under the AEPS Act,

OOR found the PUC had waived the privilege.10 Id. at 11.

OOR adopted Sunrise’s position that any third-party communication by a

government agency’s attorney involving attorney work product itself waives the

8 On February 22, 2017, the PUC filed its supplemental submission to OOR. R. 107a. SunriseEnergy filed its reply. R. 116a.9 OOR’s finding was qualified, stating that the PUC had offered sufficient evidence that “some”of the emails were attorney work product. OOR Order 9.

10 OOR applied the strict standard for waiver due to third-party disclosure after concluding thePUC had not satisfied the common interest doctrine as an “exception to waiver.” Id. at 11.

13

privilege. Notably, while Sunrise agreed that the PUC could not waive privilege

on behalf of counsel for FirstEnergy, (R. 97a.), OOR’s Order did not

acknowledge or discuss FirstEnergy’s or its counsel’s constitutional due process

and/or right to claim legal privilege for emails related to pending litigation. OOR

Order 14.

On April 28, 2017, the PUC filed its Petition for Review with this

Court.

B. Statement Of The Order Or Determination Under Review

This case arises under the PUC’s petition for review of the final

determination of the Office of Open Records (OOR) at Docket. No. AP:

2017-0079, which orders the release of PUC attorneys’ privileged attorney

work-product communication based on a finding that the PUC counsel waived the

privilege.

14

SUMMARY OF THE ARGUMENT

Counsel for Sunrise utilizes the RTKL as a vehicle to obtain access to an

adversary’s attorney work product, i.e., “…mental impressions, theories, notes,

strategies, research, and the like created by an attorney in the course of his or her

professional duties…,” the very records protected by attorney work-product

privilege. See, Dep’t of Educ. v. Bagwell, 131 A.3d 638, 657 (Pa. Cmwlth. 2016).

OOR’s order compelling disclosure of those records strikes at the heart of the

attorney work-product privilege. OOR Order 14.

Under Section 102 of the RTKL, attorney work product is excluded from the

definition of “public record” and precluded from public access. 65 P.S. § 67.102.

The privilege grants broad protection to any material, in whatever form, generated

in the course of the attorney’s professional duties representing the client’s legal

interest in any context, and especially for purposes of ongoing, or anticipated

litigation. Bagwell v. Dep’t of Educ., 103 A.3d 409, 416 (Pa. Cmwlth. 2014). Work

product includes third-party communication in representation of the client’s legal

interests.

In the present case, the PUC attorneys’ communication with counsel for

FirstEnergy was in representation of the PUC’s shared legal interest with

FirstEnergy opposing Sunrise’s challenge to PUC regulations under the AEPS Act.

It is uncontested that the email communication constitutes attorney work product.

15

Because the email communication itself is attorney work product, it is excluded

from the definition of “public record” and should not be released under the RTKL.

Here, the PUC attorneys did not “disclose” the work product, since the emails were

exchanged only between PUC attorneys and Counsel for FirstEnergy.

The PUC attorneys did not waive privilege by communication with a third

party’s counsel. The test for waiver of attorney work product privilege via third-

party disclosure is whether the disclosure increases the likelihood of disclosure to

an adversary. See, Bagwell v. Dep’t. of Educ., at 419-420. Here, the “disclosure”

was emails between PUC counsel and counsel for FirstEnergy on the shared legal

interest in Sunrise’s challenge to PUC regulations implementing the AEPS Act.

The communication did not increase the likelihood of disclosure to the adversary,

Sunrise. Therefore, attorney work-product privilege was not waived. Sunrise is the

adversary using the RTKL to obtain otherwise unobtainable attorney work product.

Additionally, OOR’s order infringes on the Pennsylvania Supreme Court’s

exclusive authority to regulate the practice of law by an erroneous, narrow, and

unequal application of the work product doctrine to state agency attorneys, and by

compelling disclosure of an attorney’s work product without due process of law.

Finally, Sunrise Energy, LLC, lacks statutory standing to appeal as a

“Requester” under Section 1101(a)(1) the RTKL, because Sunrise did not file the

original RTKL request with the agency. 65 P.S. §67.1101(a)(1).

16

ARGUMENT

Background On The RTKL

The RTKL provides a statutory means to access the public records of a

Commonwealth agency, and affords administrative and judicial appeal rights when

the agency does not grant full access to the records. See 65 P.S. §§ 67.301(a),

67.1101, 67.1301.

The RTKL defines a "record" as information that "documents a transaction

or activity of an agency and that is created, received or retained pursuant to law or

in connection with a transaction, business or activity of the agency" and specifies

that records are either public or nonpublic. 65 P.S. § 67.102 (definition of a

"record") and 67.306 (records referred to as either public or nonpublic). A "public

record" is defined as:

A record, including a financial record, of a Commonwealth or local

agency that:

1. Is not exempt under Section 708;2. Is not exempt from being disclosed under any other Federal

or State law or regulation or judicial order or decree; or3. Is not protected by a privilege.

65 P.S. § 67.102 (emphasis added). Under the RTKL, records protected by

“privilege” are defined to include attorney work product. Id. Therefore, by the

definition, “public record” expressly excludes privileged attorney work

product from disclosure. The RTKL further provides that the presumption a

17

record held by an agency is a “public record” does not apply to a record that is

protected by a privilege See 65 P.S. § 67.305(a)(2).

I. PUC Attorneys’ Emails With FirstEnergy’s Counsel In The Course ofLegal Representation Of The Agency Which Were Not Disclosed To A“Third Party,” Are Privileged Attorney Work Product Excluded FromThe Definition Of “Public Record” Under The RTKL

Under the RTKL, a “privileged” record is not, by definition, a “public

record” and is not subject to disclosure. A "public record" is defined to include

any record “…not protected by a privilege.” 65 P.S. § 67.102 (emphasis added).

Attorney work product records are explicitly defined as “privileged” under the

RTKL and, therefore, are not “public records.” Id.

A. The PUC Attorneys’ Emails Constitute Opinion Attorney WorkProduct.

Here, it is uncontested that the PUC attorneys’ email communication with

counsel for FirstEnergy constitutes privileged attorney work-product since the

communication contains factual and legal analysis; i.e., draft legal briefs and

arguments, generated in the course of representing the client’s legal interest in

pending and anticipated future litigation.

Work product privilege applies to the “mental impressions, theories, notes,

strategies, research and the like created by an attorney in the course of his or her

professional duties . . . ” Pa. Dep't of Educ. v. Bagwell, 131 A.3d 638, 657 (Pa.

Cmwlth. 2016) (quoting Pa. Public Utility Commission v. Seder, 106 A.3d 193,

18

201 (Pa. Cmwlth. 2014)) (internal quotations omitted). At the heart of the work-

product doctrine is the court’s recognition that “attorneys need a certain degree of

privacy, free from unnecessary intrusion by opposing parties and their counsel.”

Commonwealth v. Kennedy, 876 A.2d 939, 945 (Pa. 2005) (quoting, Hickman v.

Taylor, 329 U.S. 495, 510–511 (1947)). The protection afforded by attorney work

product privilege “is distinct from and broader than the attorney-client privilege.”

United States v. Nobles, 422 U.S. 225, 238 (1975).

While both “opinion” and “ordinary” work product are protected by the

privilege, courts distinguish between the two and afford a higher degree of

protection for “opinion” work product. See Hickman, 329 U.S. at 511–13.

“Opinion” work product contains the mental impressions and legal theories of an

attorney, whereas “ordinary” work product encompasses the residue. See id. In

the civil litigation context, “ordinary” attorney work product materials may be

disclosed when a party seeking disclosure demonstrates a “substantial need in

connection with subsequent litigation.11” See, F.T.C. v. Grolier, 462 U.S. 19, 26

(1983). However, “opinion” work product is construed to be exempt in any

circumstance. In Hickman, the US Supreme Court noted the proper function of our

11 A common example of a “substantial need” for discovery of “ordinary” attorney work productwould be, where an attorney took a witness’ statement and the witness subsequently died. In thatcase, opposing counsel could demonstrate a substantial need, since the facts of the witness’ statementwould not be obtainable by any other means.

19

adversarial system depends upon an attorneys’ opinion work product being

afforded the highest level of protection from disclosure, especially to an adversary

in pending litigation. Hickman, 329 U.S. at 511–13.

Pennsylvania courts recognize work product protection to be even broader

under Pennsylvania’s Rules of Civil Procedure than under the federal rule, and do

not require that the work product be generated in connection with litigation.

Rather, the Pennsylvania rule is that all work product generated in the course of

representation of the client’s legal interests in protected by the privilege.

In a recent case, Paterno et al. v. NCAA, 877 MDA 2015; 2017 Pa. Super.

LEXIS 570. (Pa. Super. 2017), the Pennsylvania Superior Court construed

Pennsylvania’s Rule 4003.3 of the Pennsylvania Rules of Civil Procedure to

preclude disclosure of an attorney’s “opinion work product” without regard to

whether it was generated in preparation of litigation. Under the Pennsylvania rule,

“opinion work product” is protected from disclosure under any circumstances.

Rule 4003 expressly states that:

“…discovery shall not include the mental impressions ofa[n]…or…conclusions, opinions, memoranda, notes or summaries,legal research or legal theories… .”

Id., Pa. R.C.P. 4003.3.

Clearly, the attorneys’ emails at issue constitute the “opinion” work product

of Sunrise’s adversary in pending litigation, warranting the highest degree of

20

protection from disclosure. It is uncontested that the emails contain “...mental

impressions, theories, notes, strategies, research and the like created by an attorney

in the course of his or her professional duties…” which falls squarely within Pa.

Dep't of Educ. v. Bagwell, 131 A.3d 638, 657.

Here, the OOR correctly concluded that the PUC had offered sufficient

evidence to show the emails were attorney work product.12 Nevertheless, OOR

ordered that the PUC’s attorney work product be released to the PUC’s adversary,

Sunrise.13

OOR erroneously concluded that the PUC attorneys’ email communication

with counsel for FirstEnergy, which itself constituted attorney work product, was

“third party disclosure” of email/attorney work product. OOR erred in this regard,

since there was no disclosure of the emails. The emails were between counsel for

the PUC and First Energy in furtherance of representation of their clients, which

had a shared legal interest in pending litigation. There were no other recipients of

12 PUC attorneys attested that the emails were generated in the course of representation of theagency’s legal interest in pending and anticipated future litigation, and as Amicus Curiae inInterlocutory Appeal, and further contained the attorney’s factual and legal analysis, i.e., draftbriefs and arguments. OOR Order 8-9; R. 46a-54a.

13 Additionally, Sunrise seeks access to the legal work product of not only PUC counsel, but alsocounsel for FirstEnergy. As such, Sunrise seeks access to the attorney work product of opposingparty counsel in pending litigation before both Commonwealth and Common Pleas Courts, andof adverse Amicus Curiae counsel, in the Commonwealth Court proceeding. This is precisely thetype of “unnecessary intrusion” from opposing counsel precluded by attorney work productprotection. See, Kennedy, 876 A.2d at 945.

21

the email, which itself constituted opinion attorney work product. OOR’s analysis

should have stopped there. Instead, OOR embarked on a mistaken path of waiver

analysis based on its erroneous finding that the emails were “disclosed.”14

B. The Attorney Work Product Emails Between PUC Attorneys AndCounsel For FirstEnergy Were Not Disclosed To A “ThirdParty.”

Attorney work product emails between PUC attorneys and counsel for

FirstEnergy do not constitute “third party disclosure” of work product since the

emails themselves constitute attorney work product, and the emails were not

disclosed to a party outside the PUC or FirstEnergy. Due to OOR’s erroneous

view that the work product was “disclosed to a third party,” OOR conducted an

analysis of waiver of the privilege. OOR Order 9. OOR failed to apply Bagwell’s

broad standard to determine, in view of all the circumstances, the PUC attorneys’

email communication with a third-party counsel itself constitutes attorney work

product.

Where attorney work product encompasses an attorney’s communication

with a third party, that communication is not third party “disclosure” triggering an

analysis of waiver of the privilege. For example, as a factual matter, it is

14 OOR’s analysis fails to give any heightened concern that the attorney work product doctrine“…manifests a particular concern with matters arising in anticipation of litigation.” OOR Order7 (citing, Gillard v. AIG Ins., Co. 15 A.3d 44, 59, n. 16 (Pa. 2011)(emphasis added)). In thepresent case, the email work product pertains to ongoing litigation, which is germane and

22

necessary, at a minimum, that disclosure be to a third party of the “specific

records… at issue.” Bagwell v. Dep’t. of Education at 103 A.3d 421 (emphasis

added). Where the disputed records themselves have not been disclosed, there can

be no waiver based on disclosure to a third party. Id.

In the present case, there is no evidence that the emails at issue have been

disclosed to a “third party.” For example, had the PUC posted copies of the emails

at issue on the PUC’s web page, that would have constituted a factual basis

establishing “disclosure to a third party.” Here the communication was with a third

party, not disclosed to a “third party.” In the present circumstances, attorney work

product email between PUC attorneys and FirstEnergy was not “third party

disclosure” and no analysis of waiver of the privilege was necessary. Since the

emails themselves constitute attorney work product, there was no third-party

disclosure.

OOR should have concluded that because the PUC attorneys’ emails with

third-party counsel constitute attorney work product, they are excluded from

definition of “public record” under the RTKL and should not be released. Pursuant

to the RTK Law, once the record is found to be privileged attorney work product,

the presumption of public nature does not apply. See, 65 P.S. 67.305 (a)(2).

Further, once OOR found the records to be attorney work product, the records are

demonstrably more tangible than anticipated litigation, warranting the highest degree of

23

removed from the class of records the agency retains discretion to disclose. 65 P.S.

§ 67.506(c)(2). Therefore, OOR should have concluded that the PUC’s attorney

work product should not be released.

II. Attorney Work Product Privilege Is Not Waived By Disclosure To AThird Party Counsel With a Shared Legal Interest, Where DisclosureDid Not Increase Likelihood Of Disclosure To An Adversary15

The PUC attorneys’ work product should not be released under present

circumstances, where “disclosure” was to a third party’s counsel with a shared

legal interest, and where “disclosure” did not increase the likelihood of disclosure

to an adversary16. Therefore, the PUC attorneys did not waive attorney work

product privilege and the emails at issue are not subject to disclosure under the

RTKL.

Waiver of attorney work product privilege is to be determined “in the

circumstances of the case.” Bagwell v. Dep’t of Educ., 103 A.3d 417. “[I]n

assessing waiver [of attorney work product], the context and content are material.”

Id. at 420. In the context of the present facts, disclosure was to a third party

sharing a common legal interest, and the disclosure did not increase the likelihood

of an adversary obtaining the work product, therefore, privilege was not waived.

protection.

15 This argument is presented to the extent the Court finds it necessary to determine whether thePUC waived the attorney work product privilege.16 OOR’s order results in disclosure of the attorneys’ work product to an adversary.

24

The Third Restatement of the Law Governing Lawyers illustrates that

attorney work product immunity can be deemed waived if the lawyer “[d]iscloses

the material to third persons in circumstances in which there is a significant

likelihood that an adversary or potential adversary will obtain it.” See, Restatement

of the Law, Third, Law Governing Lawyers § 140 - Waiver of Work Product

Immunity By Voluntary Acts (1996). Work product may be:

…shared freely among the client, the client's lawyer orother representative, associated lawyers and otherprofessionals working on the matter in the interest of theclient, actual or potential coparties, or a client's businessadvisers or agents. Such sharing is consistent with theobjective of fostering effective pretrial preparation andwith maintaining privacy against an adversary.”

Id. at comment b. (emphasis added).

Section 91(4) of the RESTATEMENT (2000) is consistent:

Voluntary Acts:

Work-product immunity is waived if the client, the client’s lawyer, oranother authorized agent of the client:…(4) discloses the material to third persons in circumstances in which thereis a significant likelihood that an adversary or potential adversary inanticipated litigation will obtain it.

Emphasis added.

Therefore, an attorneys’ sharing of work product does not waive the

immunity, when it is shared in a manner that doesn’t increase the likelihood an

25

adversary will obtain it. In determining whether sufficient care was demonstrated

by an attorney, a “… court should assess whether the recipient of the materials has

a common interest against a common adversary, such that disclosure to said

adversary is “unlikely.” Restatement of the Law, Third, Law Governing Lawyers

§ 140, comment b (emphasis added).

Case law from other jurisdictions addressing the question also find that

disclosing work-product to third parties can waive the privilege if “such disclosure,

under the circumstances, is inconsistent with the maintenance of secrecy from the

disclosing party’s adversary.” Rockwell Int'l Corp. v. U.S. Dep't of Justice, 235

F.3d 598, 605 (D.C. Cir. 2001) (quoting United States v. Am. Tel. & Tel. Co., 642

F.2d 1285, 1299 (D.C. Cir. 1980).

In the present case, the PUC attorneys’ email communication did not

increase the likelihood that the work product would be shared with the PUC’s

adversary. The communication with counsel for FirstEnergy, containing the

attorneys’ factual and legal analysis, was generated in the course of representation

of the agency’s shared legal interest in pending litigation on the issue of PUC

jurisdiction. Both parties shared a common interest in the issue of PUC

jurisdiction, against a common adversary on that issue, Sunrise. Disclosing work-

product to a party whose legal position the PUC supports is not “inconsistent with

the maintenance of secrecy from the disclosing party’s adversary.” See Rockwell,

26

235 F.3d at 605. Indeed, the email communications between the PUC’s attorneys

and FirstEnergy’s counsel were intended to be confidential, especially from their

common adversary on issue of PUC jurisdiction under the AEPS Act, namely,

Sunrise Energy.

OOR’s analysis of waiver failed to apply the correct legal standard for

waiver of attorney work product. Having correctly concluded that the email

communication in question itself constituted “attorney work product,” OOR Order

9, OOR should have found the emails were excluded from the definition of “public

record” under the RTKL and precluded from disclosure. However, by application

of the incorrect legal standard, OOR erroneously found the waiver based on “third

party disclosure.”17 Id.

OOR erroneously concluded that any attorney work product generated by

communication with a third party constitutes “disclosure to a third party”

17 OOR also failed to shift the burden to the party asserting waiver. Once OOR found the PUCoffered sufficient evidence to find attorney work product OOR Order 9, the presumption wasagainst disclosure. OOR should have shifted the burden to Sunrise to overcome the presumption.See, Bagwell v. Dep’t of Educ., 103 A.2d at 420, citing, Joyner v. Southeastern Pa.Transportation Auth., 736 A.2d 35(Pa. Cmwlth.1999).

OOR’s failure to shift the burden to Sunrise is serious legal error, since the standard forovercoming the protection of ordinary work product is high, ie., “substantial need,” andespecially where, as here, a party seeks “opinion work product” containing the attorneys’ factualand legal analysis. Under the standard the trial court would apply, Sunrise would certainly not begranted access to opposing counsel’s “opinion work product.” See, Pennsylvania’s Rule of CivilProcedure 4003.3, Pa.R.C.P. No. 4003.3.

27

warranting waiver, under the strict standard for waiver of attorney-client

privilege.18 OOR Order 9. However, because the work product doctrine looks to

the “vitality of the adversary system rather than simply seeking to preserve

confidentiality, [it] is not automatically waived by any disclosure to a third party.”

In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982)(emphasis added). “What

constitutes a waiver with respect to work-product materials depends . . . on the

circumstances” of each individual case. Bagwell v. Pa. Dep’t. of Ed., 103 A.3d

409, 417 (Pa. Cmwlth. 2014).

Courts recognize that “voluntary disclosure to a third party does not

automatically waive the work-product protection because it is does not necessarily

“undercut” the adversary process.” United States v. Am. Tel. & Tel. Co., 642 F.2d

at 1299. See, United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir.

1980) (“While voluntary disclosure waives the attorney-client privilege, it does not

necessarily waive work-product protection.”). In this way, communication of

attorney work product with a third party, in and of itself, does not constitute waiver

of the privilege.

18 OOR concluded waiver was at issue solely because the communication was with a third party.OOR stated, “…as there is no dispute that the withheld emails were revealed to a third party…,the question becomes whether the Commission waived the attorney-work productdoctrine…”OOR Order 9. However, the email communication was with a third party, notrevealed to a third party. The communication, itself, was attorney work product generated in thecourse of representation of the client’s legal interest in pending and anticipated future litigation.

28

In addition to erroneously concluding that an attorney’s communication with

any third party constitutes “third party disclosure,” OOR erroneously concluded

that any third party disclosure automatically waives attorney work product, as it

does for attorney-client privilege. This, in turn, led to OOR’s erroneous

assumption that the PUC was required to satisfy the “common interest doctrine” to

establish an exclusion from waiver in the circumstances. Consequently, OOR

erroneously applied the strict test for waiver of attorney-client privilege due to

third party disclosure to the PUC’s attorney work product privilege.19 OOR Order

9. This series of erroneous legal leaps and assumptions culminated in OOR’s

erroneous finding that the PUC attorneys had waived attorney work product

privilege due to third party disclosure.

OOR’s analysis and application of the “common interest doctrine” and the

“joint defense privilege” line of cases to the circumstances in this case was entirely

misplaced. OOR Order 10-13. The PUC did not assert it had a “joint defense”

claim with the third party. The PUC maintained before OOR that PUC attorneys

had not waived privilege in the circumstances of this case. R. 32a, 66a. The PUC

raised the “common interest doctrine” to illustrate that the doctrine’s underlying

rationale (for exemption from waiver due to third party disclosure based on the

19 This case does not involve attorney-client privilege.

29

parties’ common interest), supported a conclusion in the circumstances, that PUC

attorneys had not waived.

As previously discussed, OOR should have applied Bagwell’s broad

standard to first determine whether the third-party communication was attorney

work product. Then, and only if necessary, OOR should have examined whether

under the facts, the PUC attorneys’ communication with the third party waived the

privilege. Based on the facts, OOR should have concluded that the PUC attorneys’

email communication constitutes attorney work product, where it was with a third

party, sharing a common legal interest on the question of PUC jurisdiction, versus

a common adversary to that position. Since the disclosure to the third party did not

increase the likelihood that the work product would be shared with an adversary,

OOR should have concluded the PUC did not waive privilege.

Because the PUC attorneys’ communication was with a third party sharing a

common legal interest, and because disclosure did not increase the likelihood of

disclosure to an adversary, the PUC attorneys did not waive privilege.

III. OOR’s Order Infringes On The Pennsylvania Supreme Court’sExclusive Authority To Regulate The Practice Of Law

OOR’s order exceeds the scope of OOR’s statutory jurisdiction. OOR’s

erroneous finding, that the PUC attorneys’ work product communication with

counsel for a third party operates as waiver of the privilege, infringes on the

30

Pennsylvania Supreme Court’s exclusive authority over the practice of law under

Article V, Section 10, of the Pennsylvania Constitution, by impermissibly

narrowing Commonwealth attorneys’ rights to claim legal privilege. PA. CONST.

art. V, § 10. While OOR has jurisdiction to determine whether privilege applies,

Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d. 119 (Pa.

Cmwlth. 2017) (citing, Office of Open Records v. Center Township, 95 A.3d 354

(Pa. Cmwlth. 2014)), OOR exceeds the scope of its jurisdiction if it’s order

impacts the parameters of existing rules governing privilege. Indeed, the OOR has

no authority whatsoever to create, in effect, new law regarding the scope of

Pennsylvania’s work product privilege.

The attorneys’ claim of legal privilege falls within the practice of law, which

is under the sole jurisdiction of the Pennsylvania Supreme Court. Gmerek v. State

Ethics Commission, 807 A.2d 812 (Pa. 2002). In the present case the records “fall

within the ethics-based rule of confidentiality in Pennsylvania Rule of Professional

Conduct Pa. R.P.C. 1.6 (a). Pa. R.P.C. 1.6(a) states that “[a] lawyer shall not reveal

information relating to representation of a client unless the client gives informed

consent, except for disclosures that are impliedly authorized in order to carry out

the representation․”

As explained in City of Pittsburgh:

“The principle of client-lawyer confidentiality is given effect byrelated bodies of law:  the attorney-client privilege, the work product

31

doctrine and the rule of confidentiality established in professionalethics. The attorney-client privilege and work-product doctrine applyin judicial and other proceedings in which a lawyer may be called as awitness or otherwise required to produce evidence concerning a client.The rule of client-lawyer confidentiality applies in situations otherthan those where evidence is sought from the lawyer throughcompulsion of law. The confidentiality rule, for example, applies notonly to matters communicated in confidence by the client but also toall information relating to the representation, whatever its source. Alawyer may not disclose such information except as authorized orrequired by the Rules of Professional Conduct or other law.”

City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012) citing Pa. R.P.C. 1.6

cmt. (3); 204 Pa. Code § 81.4. (emphasis added).

Here, as in City of Pittsburgh, the communication of both the attorneys for

the PUC and the attorney for FirstEnergy would be subject to the principle of

client-lawyer confidentiality. The parties exchanged work product, factual and

legal analysis, in furtherance of representation of their respective client’s common

legal interest in ongoing litigation. As explained in the PUC’s affidavits, the

instant Interlocutory Appeal matter is just one venue for a series of pending and

anticipated litigations that challenge the PUC’s implementation of the AEPS and,

in particular, the rules for net metering. In that context, the exchanged work

product was protected under the attorney’s ethical duty of confidentiality.

OOR’s order compels the attorneys for the PUC, as well as the PUC’s ORO,

Rosemary Chiavetta, Esq., to disclose records which the RTKL states the agency

has no discretion to disclose. 65 P.S. § 67.506(c)(2)( agency has no discretion to

32

release privileged records). OOR orders disclosure of confidential attorney work

product communication subject to the same professional ethics-based rules

prohibiting disclosure, as records contained in the attorney’s litigation case file in

Silver. OOR’s order would require the PUC to disclose its confidential attorney

work product to its adversary in ongoing litigation.

Further, the language of Pennsylvania’s discovery rules are mandatory

regarding the preclusion of disclosure of “opinion” work product” at issue in this

case. See, Pa. R.C.P. 4003.3. As officers of the court, attorneys, whether employed

by a government agency, or in the private sector, are bound by the rule’s

prohibition on release of another attorney’s opinion work product. Id.

OOR’s application of the work product doctrine would strip a government

agency of attorney work product privilege for confidential communication in legal

matters pertaining to representation of the client in pending and anticipated

litigation. Under OOR’s rule, an agency attorney waives work product privilege

by consulting with any third party/ outside counsel regarding the agency’s legal

interests without an express written agreement. No such requirement has ever

existed to protect attorney work product in the context of communication with a

third party, sharing a common legal interest against a common adversary.

Attorneys representing an agency are equally entitled to confidential

treatment of attorney work product as attorney’s in the private sector, especially

33

where, as here, the attorney work product contained factual and legal analysis, i.e.,

draft legal briefs and arguments, for purposes of strengthening a legal position in

pending and anticipated litigation. The cases precluding attorney work product

from disclosure note the fundamental chilling effect on the adversarial system

itself, if attorneys are forced to consider whether written work product may be

subject to subsequent disclosure. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).

OOR’s interpretation of waiver of privilege would impact and suppress legal

representation of agencies and local authorities across the Commonwealth subject

to the RTKL. It is common for Commonwealth agency counsel to consult

cooperatively where agency legal interests align with party interests in pending

litigation. Contrary to OOR’s application of the work product doctrine, privilege

rules do not apply differently where an attorney represents an agency as a client.

Where an agency’s attorney communicates for purposes of legal representation of

the agency in ongoing litigation, that communication constitutes attorney work

product subject to the privilege of the attorney work product doctrine, just as it

would in the private sector. OOR’s “carve out,” creating a sub-standard for

government attorneys’ work product privilege, usurps’ the exclusive authority of

the Pennsylvania Supreme Court’s oversight of the practice of law.

Further, OOR’s order requiring disclosure of the attorney work product of

counsel for FirstEnergy, who is not a party before OOR, raises matters of

34

constitutional due process and legal/ethical dilemmas which OOR fails to address.

OOR expressly referenced the question “whether the attorney-work product

doctrine applies to e-mails received from FirstEnergy,” OOR Order 9, then failed

to address the question.

OOR appears to “impute” waiver of legal privilege by the PUC’s attorney to

counsel for FirstEnergy. See, OOR Order 9 (addressing “whether work product

applies to emails received from FirstEnergy”). OOR fails to construe FirstEnergy’s

legal privilege as an individual right, which may not be waived by another. See,

Pa. Dep’t. of Conservation and Natural Res. v. Vitali, 2015 Pa. Cmwlth. Unpub.

LEXIS 479 (Pa. Cmwlth. July 7, 2015). It is undisputed that counsel for

FirstEnergy was not a party to the OOR appeal. Sunrise concedes that “the legal

privilege of FirstEnergy is not the PUC’s to waive.” R. 97a. Therefore,

FirstEnergy had no due process prior to OOR’s order disclosing FirstEnergy’s

attorney work product, based on waiver imputed by the PUC attorneys’ action.

The legal privilege afforded attorney work product is an individual right

which arises from the attorney’s professional and ethical duties and is rooted in the

existence of an attorney-client relationship. See, City of Pittsburgh v. Silver, 50

A.3d 296 (Pa. Cmwlth. 2012). OOR’s order impacts not only the lawyer’s

privilege, but the individual client’s privilege. Just as it is unjust to impute waiver

to FirstEnergy’s counsel, based on finding waiver by PUC attorneys, it is also

35

unjust to impute waiver to the client, FirstEnergy, based on finding waiver by the

PUC’s attorneys.

OOR’s order necessarily usurps the jurisdiction of the trial court to decide

discovery matters, especially where, as here, disclosure pertains to attorney work

product of opposing counsel in a pending Trial Court proceeding. Pa. R.C.P.

4003.3 (discovery shall not include the mental impressions of conclusions,

opinions, memoranda, notes or summaries, legal research or legal theories).

Notably, the appeal brought by counsel for Sunrise raises legitimate ethical

questions where counsel is actively seeking access to attorney work product of

opposing party counsel which is clearly intended to be held as confidential under

the Supreme Court’s Rules of Professional conduct. For example, where counsel

obtains privileged information even inadvertently, there is, arguably, an ethical

duty to refrain from reading and return the record. See, Pa. R.P.C. 1.6 cmt. (23) and

(24)

No attorney would argue before a trial court to obtain discovery of opposing

counsel’s factual and legal analysis, i.e., draft briefs and arguments, which are

expressly excluded from discovery under any circumstances. Pa. R.C.P. 4003.3.

Yet, OOR’s order discloses “opinion” attorney work product to opposing counsel

in ongoing litigation, thereby approving a potential violation of the attorney’s

professional and ethical duties under the Pennsylvania Supreme Court’s Rules of

36

Professional Conduct and in contradiction of the Pennsylvania Rules of Civil

Procedure.

In the present case, OOR’s order approves Sunrise’s use of the RTKL to

gain access to attorney work product of FirstEnergy, Sunrise’s opposing party in

pending litigation before common pleas court. Therefore, OOR allows Sunrise to

circumvent the common pleas judge presiding over the underlying case. Where a

question under the RTKL regards access to attorney work product by opposing

counsel in an ongoing proceeding before the trial court, the jurisdiction of the trial

court judge should take priority.

In Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d. 1119

(Pa. Cmwlth. 2017) the court found that the OOR’s order providing access under

the RTKL to records previously denied by the trial court’s discovery order did not

interfere with the trial court’s jurisdiction on discovery. The court recognized that

the right to access arising under RTKL was founded on an independent statutory

basis which is not restricted by the trial court’s ruling on relevance. Id. 1136.

However, the present case is distinguishable from Bagwell on several material

respects.

First, in Bagwell, both parties were represented before OOR and the trial

court. The trial court sat as the reviewing court where the parties contested

enforcement of OOR’s order. Id. In the present case, the parties to the underlying

37

proceeding, Sunrise and FirstEnergy, are not both parties before OOR. Second, in

Bagwell, the trial court’s denial was based on relevance, not that the documents

constituted attorney work product, so the Bagwell court concluded OOR’s order

did not conflict with the trial court’s jurisdiction. Here, the case involves opinion

work product of attorneys in pending litigation, which the trial court would afford

the highest level of protection. However, the trial court has been effectively

deprived of jurisdiction to address the question.

OOR’s order, if enforced, would effectively negate the highest degree of

protection typically afforded attorney “opinion” work product, usurp the

jurisdiction of the trial court in an ongoing proceeding to decide discovery

involving attorney work product, and narrow the nature and scope of attorney work

product privilege as applied to state agency attorneys, infringing upon the

Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law,

and should be reversed.

IV. Sunrise Energy, LLC, Lacks Standing To Appeal To OOR As The“Requester,” Pursuant To Section 1101(a)(1) Of The RTKL.

Sunrise Energy, LLC, fails to establish standing to appeal to OOR as the

“Requester” under Section 1101(a)(1) of the RTKL, 65 P.S § 1101(a)(1), and

the appeal should be dismissed.

Section 1101 (a)(1) of the RTKL provides that:

38

…[i]f a request for access to records is denied or deemed denied therequester may file an appeal with the Office of Open records[.]

65 P.S. § 67.1101(a)(1) (emphasis added). Pennsylvania courts have long held that

when statutory and regulatory provisions designate who may appeal an agency

action, only those persons so designated have standing to appeal. See, generally,

West Chester Univ. of Pennsylvania v. Schackner, 124 A.3d 382, 390 (Pa. Cmwlth.

2015); In re 1995 Audit of Middle Smithfield Township, 701 A.2d 793, 794 (Pa.

Cmwlth. 1997); Chichester Kinderschool v. Department of Public Welfare, 862

A.2d 119, 121 (Pa. Cmwlth. 2004). In the present case, Sunrise Energy, LLC, was

not the “Requester” before the PUC and, therefore, has no standing to appeal to

OOR.

First, OOR’s failure to apply controlling case law governing corporate action

resulted in OOR’s failure to conclude that the “Requester” in the underlying RTKL

request was David N. Hommrich in his individual capacity20. The request filed by

Hommrich made no reference to acting in an official capacity as a corporate officer

of Sunrise Energy, LLC. Id. OOR expressly conceded that “…the Requester filed

the Request without identifying that it was being filed on behalf of Sunrise Energy,

LLC[.]” OOR Order 6 Therefore, Hommrich, not Sunrise Energy, was the

20 The original RTKL request filed with the PUC on the OOR’s “Standard Right-To-KnowRequest Form,” expressly identified the “Requester,” as David N. Hommrich. R. 16a.

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“Requester” for purposes of standing to appeal under Section 1101 (a)(1) of the

RTKL.

It is well established that corporate entities are separate and distinct from the

corporate officers acting in their individual capacity. Longenecker v.

Commonwealth, 596 A.2d 1261 (Pa. Cmwlth. 1991).

Longenecker explains that corporations are regarded as separate legal

entities:

The accepted rule in Pennsylvania is that a corporationshall be regarded as an independent entity even if itsstock is owned entirely by one person. CollegeWatercolor Group, Inc. v. William H. Newbauer, Inc.,468 Pa. 103, 360 A.2d 200 (1976). Under Pennsylvanialaw there is a strong presumption against piercing thecorporate veil. Wedner Unemployment CompensationCase, 449 Pa. 460, 296 A.2d 792 (1972).

Id. at 1262.

Under Pennsylvania law, individual officers of a corporation can bind that

corporation only when they act in their official capacities as officers. Cannavo v.

Poplar, 8 Pa. D. & C.3d 529, 532 (Pa. Com. Pl. 1978) (emphasis added).

“Corporations necessarily act through agents and if one so acting is to escape

personal liability for what he intends to be a corporate obligation, the limitation of

his responsibility should be made to appear on the face of the instrument.

Otherwise, the individual signature imports a personal liability.” Hazer v. Zabala,

26 A.3d 1166, 1170 (Pa. Super. 2011) (emphasis added). This principle applies

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equally to a Limited Liability Company. Id. Under Pennsylvania law, the burden

falls on the individual to fix his signature in a manner which expressly asserts that

he is acting in a representative capacity of the corporate entity. Schwab v.

McDonald (In re LMcD, LLC), 405 B.R. 555, 560 (Bankr. M.D. Pa. 2009) (citing

Flexlume Corp. v. Norris, 98 Pa. Super. 530, 532 (1930)).

Here, Hommrich filed the RTKL request in his individual capacity. OOR

concedes that Hommrich’s original request was filed “without identifying that it

was being filed on behalf of Sunrise Energy, LLC.” OOR Order 6. No facts of

record support a finding that Hommrich’s request was in his official capacity on

behalf of Sunrise Energy, LLC. Therefore, Hommrich is the “Requester” for

purposes of Section 1101(a)(1) standing to appeal under the RTKL.

Second, OOR erroneously applied its own prior holdings and erred in

finding that Sunrise Energy, LLC, was the “Requester” for purposes of appeal

under Section 1101(a)(1) of the RTKL. As previously noted, OOR acknowledged

the original RTKL request did not assert Hommrich’s official capacity as an officer

for the LLC, or reference filing on behalf of Sunrise Energy, LLC. Id. OOR,

nevertheless, concluded that Hommrich’s original RTKL request was filed in his

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“official capacity” as a corporate officer of Sunrise.21 OOR’s legal conclusion was

based on Sunrise’s subsequent “clarification” that the original RTK request was

filed by Hommrich on behalf of Sunrise,22 and on the fact that the original request

was filed “using a Sunrise Energy, LLC e-mail address.” OOR Order 6. OOR cites

no Commonwealth statute or case law governing corporate action as authority for

this legal conclusion, because no such authority is provided.

Establishing proof of standing rests with the party filing the appeal. 65 P.S.

§1101(a)(1). Particularly, where, as here, the statutory standing is stated

specifically, and there is no evidence of corporate action in filing the initial RTKL

request, Sunrise fails to establish standing. See, West Chester Univ. of

Pennsylvania v. Schackner, 124 A.3d 382, 390 (Pa. Cmwlth. 2015).

21 OOR’s statement that “the present appeal is not prohibited under the RTK Law,” serves toestablish standing for Sunrise Energy, LLC, since no other legal rationale is provided. OOROrder 6.

For example, OOR’s reliance on Hommrich’s use of an alleged “Sunrise Energy LLC, e-mailaddress” to submit the request is without basis. The email address identified on the RTKLrequest form was dhommrich@sunrise-energy.net. R. 17a. The domain name used in the emailaddress does not mirror the legal name of the corporate LLC. As in In re LMcD, LLC, toestablish “official capacity” on behalf of the LLC, the individual must, at a minimum, expresslygive notice of the corporate entity’s legal name and status limiting liability, i.e., “Sunrise Energy,LLC.” In this case, the use of the “Sunrise-Energy.net” domain name in an email address isinsufficient, on its face, to establish “official capacity.” Id.

Further, OOR, inexplicably, appears to shift a burden of proof to the PUC to overcome OOR’s“presumption of identity” between Hommrich and Sunrise, stating that the PUC “…has notsubmitted any evidence demonstrating that Mr. Hommrich is not an officer or employee ofSunrise Energy.” OOR Order 6. However, the PUC is not required to rebut OOR’s unwarrantedpresumption of identity between an individual and a corporate entity.

22 OOR states that, “[o]n appeal, the Requester clarifies that the request was made on behalf ofSunrise Energy LLC. OOR Order 6.

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Even if it is assumed that Hommrich is an officer of the LLC, that fact is

immaterial to the circumstances establishing whether Hommrich acted in his

“official capacity” on behalf of Sunrise Energy, LLC, pursuant to the applicable

corporations’ statute and case law. What matters is that the individual’s action in

filing the RTKL request clearly indicated an “official capacity” on behalf of the

corporate entity. See, Hazer v. Zabala, 26 A.3d 1166. In this case, Hommrich’s

request clearly did not establish his official capacity. OOR’s error granting

standing to Sunrise is all the more egregious because OOR knew Sunrise sought

access to the attorney work product of Sunrise’s adversary in interest and opposing

party in pending litigation (the PUC as Amicus, and FirstEnergy as opposing

party).

Further, OOR’s finding on standing relied on two prior OOR decisions for

support, rather than controlling Commonwealth case law on corporate standing.

OOR incorrectly concluded that a “Requester” need only be an employee of

corporation to establish standing to appeal. OOR Order 6, (citing, Ruderman v.

City of Phila. Dep’t of Health, OOR Dkt. AP 2016-1259; and Spatz v. City of

Reading, OOR Dkt. AP 2013-0210). In each OOR case, two different newspaper

employees identified themselves at both the initial stage, and on appeal before

OOR, as acting in a representative capacity for their newspaper/employer. Neither

Ruderman nor Spatz support OOR’s conclusion in the present case, where at the

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initial stage Hommrich did not assert he was acting in an official/representative

capacity on behalf of Sunrise Energy, LLC. Id.

Under the facts presented, Sunrise Energy has made no showing to support

OOR’s finding that David N. Hommrich acted as the alter ego of Sunrise Energy,

LLC, or that the corporate veil should now be disregarded for purposes of a RTKL

appeal to OOR pursuant Section 1101(a)(1) of the RTKL. Sunrise Energy, LLC,

and David N. Hommrich are not one in the same23. In this case, a private person

filed the instant RTK request. That Requester, Hommrich, and only that person,

not a separate and distinct corporate entity, has standing to file the appeal within 15

business days. 65 P.S. § 1101(a)(1). Because Sunrise Energy, LLC, was not the

Requester below, Sunrise fails to establish the RTKL’s prerequisite for standing to

appeal.

Therefore, since Sunrise Energy LLC, is not the “Requester” under Section

1101(a)(1), Sunrise has no standing to appeal to OOR under Section 1101(a)(1) of

the RTKL, and the appeal should be dismissed.

23 Counsel for Sunrise Energy may not assert belated representation of David N. Hommrich.Having failed to do so in a timely manner for purposes of appeal, Hommrich’s appeal is nowtime-barred.

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CONCLUSION

WHEREFORE, for the foregoing reasons, the Pennsylvania Public Utility

Commission respectfully requests that this Honorable Court reverse OOR’s Final

Determination ordering disclosure of privileged attorney work product.

Respectfully submitted,

/s/ Elizabeth Lion JanuzziElizabeth Lion JanuzziAssistant CounselAttorney ID No. 69487

John E. HerzogDeputy Chief Counsel

Bohdan R. PankiwChief Counsel

Counsel for the PennsylvaniaPublic Utility Commission

P.O. Box 3265Harrisburg PA 17105-3265(717) 787-5000

Dated: August 24, 2017

APPENDIX A