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Thorpe businessman appeals Carbon decision on Right to Know petition

Published November 01. 2011 05:01PM

A Jim Thorpe business owner, whose Right to Know petition for information regarding the constitutionality of a Carbon County industrialization project was rejected in county Court of Common Pleas in July, has appealed the judge's ruling.

Robert P. Dages, owner of Vision Stone Stoves and a member of the Carbon County Constitutionalists, filed the appeal against the County of Carbon in the Commonwealth Court of Pennsylvania on Oct. 24.

In the appeal, Dages recounts his attempts to receive the name of a case law, which was cited by county Commissioner William O'Gurek, chairman, regarding the Packerton Business Park project. The conversation about the case law originally began on June 17, 2010, after guests at the commissioners' meeting asked about the constitutionality of the Packerton project.

Dages states that O'Gurek said that "it is constitutional and there is 'case law' to support this position."

The appeal continues, stating that numerous requests for the case law were denied, including through the county Right to Know office and the state Office of Open Records (OOR) in Harrisburg. Each time, officials stated that the case law was protected by attorney-client privilege between the commissioners and the county solicitor Michael Ozalas. Attorney-client privilege is not covered under the Right to Know Act.

Dages appealed the rulings each time, eventually ending up in Carbon County Court of Common Pleas earlier this year.

On July 1, Judge Steven Serfass denied Dages' appeal, upholding the previous rulings for the request for information.

In his opinion, Serfass noted 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.'"

Serfass referred 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.

He continued, "Based upon the foregoing affidavits, we agree with the OOR that the information requested by plaintiff is protected by the attorney-client privilege. 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.

In the latest appeal filed by Dages, he states, "This case is not about 'privileged communications' or 'privileged work product' as first claimed by the Carbon County commissioners and the county solicitor, and thus far repeatedly supported by others in government; but rather apparently the use of an unlawful scheme/procedure created out of thin air, two deceptive affidavits, and intentionally misinterpretation and misapplications of laws and 'case law' to hid the fact that there is no lawful constitutional authority for Carbon County and thus the county commissioners to purchase and develop private property using public funds in direct competition with private owners and/or developers and that there is no lawful case opinions ('case law') that support the commissioners' position."

The appeal continues, "If these deceptions, misapplications of law and case opinions, the unlawful scheme/procedure and the Carbon County Court of Common Pleas 'Order of Court' are allowed to stand by the Commonwealth Court, these fundamental violations of the Constitutions and the RTKL shall be institutionalized and be extended to the entire Commonwealth of Pennsylvania."

During a phone interview Friday morning, Dages said that he feels that no one looked passed the affidavits.

"They just stopped thinking and didn't look at the merits of the case."

Dages is now asking the Commonwealth Court to overturn Serfass' ruling and "order the commissioners to provide complete and concise answers to the questions asked by the concerned citizens of Carbon County."

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