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Appeal denied

Published July 06. 2011 05:01PM

A Carbon County judge has denied the appeal of a county resident from a decision of the state Office of Open Records (OOR) rejection of his request for records concerning the Packerton Business Park project.

Judge Steven R. Serfass denied the appeal made by Robert P. Dages, owner of Vision Stone Stoves, of the denial by the state agency.

Dages, a member of the Carbon County Constitutionalists, asked the county commissioners in mid-2010 for information related to the development of the yards. He asked the "constitutionality of the development."

Commissioner Chairman William J. O'Gurek, denied Dages request for the information based on case law, which states the information is protected by attorney-client privilege.

Dages then appealed to the OOR. On Jan. 14 the OOR denied his appeal and sided with the county commissioners stating the attorney-client privilege is not covered under the Right to Know Act (RTKA).

Serfass sustained the decision of the OOR in denying the request in a 13-page memorandum opinion handed down on Friday, July 1. Serfass supported the determination that the information requested by Dages falls under the attorney-client privilege provisions.

Serfass noted in his opinion that the attorney-client privilege is considered an exemption which precludes the disclosure of public records or information.

Serfass wrote, "The purpose of the attorney-client privilege 'is to protect confidential communications between the lawyer and his client, and to foster the free exchange of relevant information between them.'"

In the opinion Serfass refers to two sworn affidavits submitted to the OOR by the commissioners supporting their position that the requested information is protected by the attorney-client privilege.

Serfass wrote, "Based upon the foregoing affidavits, we agree with the OOR that the information requested by Plaintiff is protected by the attorney-client privilege." He adds, "The affidavits reflect that the County Commissioners, as the client of the County Solicitor, requested that the County Solicitor provide legal advice and assistance in the form of legal research regarding the Packerton Yards Project. They also reflect that the County Solicitor conducted this research and provided the results to the Commissioner O'Gurek in a confidential manner."

Serfass said the county invoked the attorney-client privilege regarding the legal research done by the solicitor and that satisfies a prior court ruling in such matters. He added, "Accordingly, the legal research conducted by the County Solicitor is protected by the attorney-client privilege, and, as such, is not subject to disclosure under the RTKA."

Serfass said the "work product privilege" is also protected from the RTKA.

"The mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories" are protected Serfass wrote.

He adds that under the RTKA, "information protected by a privilege is not considered public record. Additionally, records which include 'information made confidential by law' are exempt from disclosure under the RTKA."

Serfass concludes, "Therefore, as this research is protected by the work product privilege, it is not subject to disclosure under the RTKA."

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