pennsyLvania DEPARTMENT OF ENVIRONMENTAL PROTECTION August 24, 2015 UPS Tracking Number 1Z16633X0392680065 Mr. Scott Cannon Gas Drilling Awareness Coalition 61 Girard Avenue Plymouth, P A 18651 Re: Right-to-Know Request Number 1400-15-213 Dear Mr. Cannon: On July 16, 2015, the open-records officer of the Department of Environmental Protection (Department) received your written request for records. The Department is responding to your request under the Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-67.3104 ( R T K L ) . Your R T K L request sought correspondence records of your approval as part of the team for the Governor's Pipeline Task Force work group from the application deadline of Jime 8, 2015, to your subsequent "rejection" in an email from Secretary John Quigley on July 2, 2015. The scope of your R T K X request was to include information (emails and correspondence) of communications between the Department and other government agencies including, but not limited to, the Governor's Office and/or other Department Regional Offices. The scope of your request was to include outside individuals, business entities, and group communications that supported or protested the position. The types of records sought were not lunited to meeting sign-in sheets, meeting minutes, phone records, interoffice memorandums, emails, and other correspondence regarding the Department's decision for your selection and subsequent "dismissal" of the Pipeline Task Force. By e-mail to me on July 16, 2015, you amended the date range of your R T K L request from June 28, 2015, to July 7, 2015. You also requested records containing the name "Scott Cannon" and "Gas Drilling Awareness Coalition" A n initial response to your.request was due on July 23, 2015. On July 23, 2015, you were notified that the Department requhed an additional 30 days, until August 24, 2015, to respond to your request. Your request is granted in part and denied in part. Records responsive to your request are enclosed. Bureau of Office Services Rachel Carson State Office Building P.O. Box 8473 Harrisburg, PA 17105-8473 717.787.2043 F 717.705.8023 www.depweb.state.pa.us Mr. Scott Caimon -2- August24, 2015 Your request covers 29 pages of material. The cost of fulfilling your request is $17.47 ($.25 per page for duplication for 29 pages and $10.22 for postage). Please remit payment in this amount by September 15, 2015, to the Department at the address listed. Checks should be made out to the Commonwealth of Peimsylvania and also reference the R T K L Request Number listed above. The remittance should be sent to me. Cash or credit card payment is not accepted. Further, please note that failure to pay for records provided in response to a R T K L request to any executive agency will preclude you from obtaining further records fiom another executive agency, pursuant to the provisions of section 901 of the R T K L and Section I V (D) of our Department R T K X Policy, as published on our website www.depweb.state.pa.us. Your request is denied in part for the following reasons which are permitted by law: Attorney Client Privilege/Attorney Work Product. The attorney-client privilege provides that: In a 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. 42 Pa.C.S. § 5928. Four elements must be satisfied in order to successfully invoke the protections of the attorneyclient privilege: (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 cUent. Nationwide Mutual Ins. Co. y. Fleming, 924 A.2d 1259 (Pa. Super 2007). In addition, the Pennsylvania Supreme Court has stated that the attorney-client privilege covers both confidential client to attorney communications and confidential attorney to client communications made for the purpose of obtaining or providing legal advice. Gillard v. AIG Insurance Co., 15 A. 3d 44, 59 (Pa. 2011). The R T K L , in section 102, defines "Privilege" as "the attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth." 65 P.S. § 67.102 The attorney work-product doctrine also excepts certain records from production. According to this doctrine, "mental impressions, conclusions or opinions respectuig the value or merit of a Mr. Scott Cannon -3- August24, 2015 claim or defense or respecting strategy or tactics, including those of a party's representative who is not the party's attorney" are protected from disclosure. LaValle v. OGC, 769 A.2d 449 (Pa. 2001)., The Commonwealth Court has ruled that records reflecting attorney-work product are not public records under the R T K X . Maleski v. Corporate Life Ins. Co., 641 A.2d 1 (Pa. Cmwlth. 2007) Therefore, based on these legal authorities, the Department withheld two pages of emails. The subject of the email is legal advice requested from the Department's Secretary to the Department's Chief Coimsel and the Chief Counsel's subsequent response. The subject of the legal advice requested and received was the form and content of your notification of withdrawal from the task force. These records include not only the legal advice provided by the Chief Coimsel to the Secretary, but the Chief Counsel's impressions, conclusions and opinions that encompass the notification. Internal, Predecislonal, Deliberative Process. The Department has also denied your request to records that reflect the Department's internal, predecislonal, deliberations under 65 P.S. § 67.708(b)(10)oftheRTKL. Section 708(b)(10)(i)(A) of the R T K X states that a local or Commonwealth agency can withhold records that reflect, "[T]he internal, predecislonal deliberations of an agency, its members, employees or officials or predecislonal deliberations between agency members, employees or officials and members, employees or officials of another agency..., contemplated or proposed policy or course of action or any research, memos or other documents used in the predecislonal deliberations." 65 P.S. § 67.708(b)(10)(i)(A). There are two pages of emails being withheld as internal, predecislonal and deliberations of the Department's response to press inquiries received concerning your withdrawal from the Pipeline Task Force and one page regarding your notification of yoirr withdrawal. These three pages of emails are excepted from disclosure because these records reflect the Department's internal, predecislonal and deliberations or were relied on by the Department as part of its internal, predecislonal, deliberative process. Each email is a preliminary step in Department deliberations amongst its own personnel regarding your withdrawal from the task force or media inquiries of that event and proposed responses to these issues. These records are prior to and do not reflect a final determination by the Department. However, you have a right to appeal this response in writing to the Executive Director, Office of Open Records (OOR), Commonwealth Keystone Buildmg, 400 North Street, .4th Floor, Harrisburg, Pennsylvania 17120. I f you choose to file an appeal you must do so within 15 business days of the mailing date of this response and send to the OOR: 1) all Department responses; 2) your request; and 3) the reason why you think the Department is wrong in its response. Mr. Scott Caimon Also, the OOR has an appeal form available on https://www.dced.state.pa.us/public/oor/appealformgeneral.pd.f Sincerely, Dawn Schaef Agency Open Records Officer Enclosure cc: August24, 2015 -4- R T K CO Legal via email R T K CO S E C Y , OPPEA, COM, L E G , OG, OCC via email the OOR website at: Phone: 717.783.8303 ] Fax: lllT72.1ieS www.d epweb.state.p a.us PRIVILEGED AND CONHDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege. From: Richard Fox rmailto:RFOX@pasenate.com1 Sent Tuesday, June 30,2015 5:44 PM To: Clark, Sarah L Subject: Pipeline Task Force Sarah - do you have a list of the people appointed? Thanks Richard This message and any attachment may contain privileged or confidential information intended solely for the use of the person to whom it is addressed. If the reader is not the intended recipient then be advised that forwarding, communicating, disseminating, copying or using this message or its attachments is strictly prohibited. If you receive this message in error, please notify the sender immediately and delete the information without saving any copies. This message and any attachment may contain privileged or confidential inforrpation intended solely for the use of the person to whom it is addressed. If the reader is not the intended recipient then be advised that forwarding, communicating, disseminating, copying or using this message or its attachments is strictly prohibited. If you receive this message in error, please notify the sender immediately and delete the information without saving any copies. This message and any attachment may contain privileged or confidential information intended solely for the use of the person to whom it is addressed. If the reader is not the intended' recipient then be advised that forwarding, communicating, disseminating, copying or using this message or its attachments is strictly prohibited. If you receive this message in error, please notify the sender immediately and delete the information without saving any copies. This message and any attachment may contain privileged or confidential information intended solely for the use of the person to whom it is addressed. If the reader is not the intended recipient then be advised that forwarding, communicating, disseminating, copying or using this message or its attachments is strictly prohibited. If you receive this message in error, please notify the sender immediately and delete the information without saving any copies. • 2 Clark, Sarah L From: Sent: To: Subject: Richard Fox Thursday, July 02, 2015 11:38 AM Clark, Sarah L Re: Pipeline Task Force Thanks! And I hope you have a splendid long weekend :) > » "Clark, Sarah L " 7/2/2015 11:36 AM >>> Environmental protection workgroup On Jul 2,2015, at 11:25 AM, Richard Fox pasenate.com> wrote: Sarah - do you know if Scott Cannon is on the task force or one of the work groups? Thanks Richard >>> "Clark, Sarah L " pa.gov> 5/30/2015 6:51 PM >>> He wasn't selected for the Task Force but was appointed to the Workforce and Economic Development Workgroup. The workgroups will be chaired by members of the task force and will develop recommendations and best practices for consideration by the task force. Sarah L Clark, Esq. Director of Legislative Affairs Department of Environmental Protection Legislative Office Rachel Carson State Office Building 400 Market Street Harrisburg, PA 17101 Phone: 717.783.8303 [ Fax: 717.772.1765 www.depweb.state.pa.us PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege. From: Richard Fox rmailto:RFOX(5)pasenate.com1 Sent Tuesday, June 30, 2015 6:50 PM To: Clark, Sarah L Subject: RE: Pipeline Task Force The boss wanted to know about Dave Horn? >>> "Clark, Sarah L " > 6/30/2015 5:46 PM >>> Yes, we sent out notifications today but aren't planning on officially announcing until Monday. Were you inquiring • about anyone in particular? Sarah L Clark, Esq. [ Director of Legislative Affairs Department of Environmental Protection Legislative Office Rachel Careon State Office Building 400 Market Street j Harrisburg, PA 17101 1 Clark, Sarah L From: Sent: To: Subject: Bane, Yesenia Thursday, July 02,2015 1:27 PM Spade, Nathan; Clark:, Sarah L Scott Cannon Sarah, Can someone from DEP uninvited Scott Cannon to the taskforce. Nate, do you v^rant me to call Rep. Mullen/ and Rep. Pashinski? Thanks and sorry for this oversight. Yesenia Yesenia Rosado Bane Special Assistant to the Governor Office of the Governor 225 Main Capitol Building Harrisburg, PA 17120 717-772-8475 1 From: Rickens, Susan Sent: Thursday, July 02, 2015 3:09 PM To: Lalo, Julie Cc: Shader, Neil Subject: RE: PITF change Already done!! S u s a n R i c k e n s ] Special Assistant for Marketing & Strategic Planning Department of Environmental Protection 1 Communications Office Rachel Carson State Office Building 400 Market Street 1 Harrisburg, PA 17101 Phone: 717,787.1323 1 Fax: 717.705.4980 www.dep.state.pa.u5 From: Lalo, Julie Sent: Thursday, July 02, 2015 3:08 PM To: Rickens, Susan Cc: Shader, Neil Subject: FW: PITF change Importance: High Susan, Would you remove Scott Cannon's name, please? Julie Lalo Director of Communications Department of Environmental Protection From: Shader, Neil Sent: Thursday, July 02, 2015 2:01 PM To: Laio, Julie Subject: PITF'change Importance: High The Secretary just swung by say that w e need to take Scott Cannon's name off of the PITF Workgroup (he's not on the taskforce); apparently his inclusion on the workgroup list w a s oversight (not on DEP's part) Neil Shader Press Secretary Department of Environmental Protection 1 Office of Communications 400 Market Street Harrisburg, PA 17105 Phone: 717.787:1323 j Mobile; 717.549.8563 www.dep.state.pa.us PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is From; Quigley, John Sent: Thursday, July 02, 2015 3:11 PM To: Bane, Yesenia; Spade, Nathan Cc: Clark, Sarah L.; Lalo, Julie; Abbott, J . J . ; Shader, Neil Subject: Scott Cannon Importance: High Folks, We are going to send this to Mr. Capnon via email and snail mail this afternoon: Dear Mr. Cannon: I appreciate your willingness to serve as a member of the Pipeline Infrastructure Task Force, and to provide advice on subjects of importance to the Department of Environmental Protection. After further consideration of the overall composition of the Task Force, however, I have decided against adding you as a member. Your appointment to the Pipeline Infrastructure Task Force, dated , 2015, is therefore rescinded. Please accept my appreciation for your interest in serving the citizens of the Commonwealth, and my best wishes for your success in the future. Sincerely, I suspect he will run to the press. I f asked, the less said on this, the better, in my view. PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. I f you receive this message in etiror, please send a reply e-mail to the sender and delete the material from any and all computers. From: Scott Cannon rmailto:scottcannon(a>epix.net] Sent: Monday, July 05, 2015 9:10 AM To: Connolly, Colleen Subject: Pipeline Task Force Appointment Colleen, Attached are the 2 emails I received last week from DEP Secratery John Quigley. 1 have a call into the number provided on the first email as to the reason for my denial as well as an email. Sincerely, Scott Cannon From: Connolly, Colleen Sent: Monday, July 05, 2015 9:15 AM To: Lalo, Julie Subject: FW: Pipeline Task Force Appointment Julie, Do you know if the Secretary plans on speaking to Scott Cannon today? He (Scott) just sent me the email rescinding his Pipeline Task Force appointment. Thanks. Colleen Connolly 1 Community Relations Coordinator Department of Environmental Protection Northeast Regional Office 2 Public Square ] Wilkes-Barre, PA 18701-1915 Phone: 570.826.2035 Fax: 570.830.3054 www.depweb.state.pa.us PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. I f you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers. From: Scott Cannon rmailto:scottcannon(a)epix.net1 Sent: Monday, July 06, 2015 9:10 AM To: Connolly, Colleen Subject: Pipeline Task Force Appointment Colleen, Attached are the 2 emails 1 received last week from DEP Secrater/ John Quigley. I have a call into the number provided on the first email as to the reason for my denial as well as an email. Sincerely, Scott Cannon From: Quigley, John Sent: Monday, July 06, 2015 9:46 AM To: Reim, Heattner; I_alo, Julie; Shader, Neil; Clark, Sarah L Subject: RE: Pipeline Task Force Appointment ril send him an email sometime today. From: Reim, Heather Sent: Monday, July 06, 2015 9:41 AM To: Lalo, Julie; Quigley, John; Shader, Neil; Clark, Sarah L. Subject: RE: Pipeline Task Force Appointment He also left another message on the PITF number on Friday saying he feels he is owed an explanation for his appointment being rescinded. Heather From: Lalo, Julie Sent: Monday, July 06, 2015 9:39 AM To: Quigley, John; Shader, Neil; Clark, Sarah L. Cc: Reim, Heather Subject: FW: Pipeline Task Force Appointment John, 1 just talked with Colleen, who told Scott at the end of last week to call you for his questions. She anticipates that the legislators in the area may put in a call as well, and perhaps the Times-Leader, as Scott attempts to raise his issue this week. Thanks, Julie From: Connolly, Colleen Sent: Monday, July 06, 2015 9:16 AM To: Lalo, Julie Subject: FW; Pipeline Task Force Appointment Julie, Do you know if the Secretary plans on speaking to Scott Cannon today? He (Scott) just sent me the email rescinding his Pipeline Task Force appointment.. Thanks. Colleen Connolly Community Relations Coordinator Department of Environmental Protection [ Northeast Regional Office 2 Public Square Wilkes-Barre, PA 18701-1915 Phone: 570.825.2035 1 Fax: 570.830.3054 www.depweb.state.pa.us L Reim, Heather From: Sent: To: Subject: Reim, Heatlier Monday, July 06, 2015 11:19 AM scottcannon@ep)x,net Pipeline Infrastructure Task Force Mr. Cannon, You have asked for an explanation of why your appointment to the Pipeline Infrastructure Task Force was rescinded. I n your letter, you indicated your desire to ""represent the voice" of citizens "affected by gas development," While your Individual advocacy is commendable and is In no way discouraged, it is much more appropriate that the widely varying experiences and concerns of citizens be represented through local and county governments, which are strongly represented on the Task Force and in the composition of its Work Groups. Meetings of the Task Force will be open to the public, and you will be welcome to participate during each meeting's public comment period. Thank you again for your interest in serving. ### John Quigley ] Secretary Department of Environmental Protection Rachel Carson State Office Building 400 Market Street Harrisburg, PA 17101 Phone; 717.787.2814 Fax: 717.705.4980 www.depweb.state.pa.us PRIVILEGED AND CONFIDENTIAL COMMUNtCATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material Any use of this information other than by the intended recipient is prohibited. Ifyou receive this message in error, please send a reply e-mailtothe sender and delete the material from any and all computers. Unintended transmissions shall not constitute waiver of the attorney-client or any other privilege. 1 From: Marie Cusiclc [mailto:marie_cusicl<(a)witf.org] Sent: Tuesday, July 07, 2015 12:46 PM To: Shader, Neil Subject: RE: Scott Cannon and PnT Thanks Neil. From: Shader, Neil rmailto:nshader(Sipa.qov1 Sent: Tuesday, July 07, 2015 12:40 PM To: Marie Cusick Subject: Scott Cannon and PTTF Hi Marie - 1 know you were asking about Scott Cannon and the PITF. After further consideration of the overall composition of the Task Force, the Secretary decided against adding this individual as a member. While we appreciated his willingness to serve, we felt others on the taskforce would better represent the wide-range of citizen perspectives on pipelines. Let me know if you have any other questions-thanks! Neil Shader [ Press Secretary Departmentof Environmental Protection Office of Communications 400 Market Street Harrisburg, PA 17105 Phone: 717.787,1323 Mobile: 717.549.8563 www.dep.state.pa.us PRIVILEGED AND CONFIDENTIAL COMMUNICATION The information transmitted is intended only for the person or entity to whom it is addressed and may contain confidential and/or privileged material. Any use of this information other than by the intended recipient is prohibited. I f you receive this message in error, please send a reply e-mail to the sender and delete the material from any and all computers.