Weatherly Area School District is appealing an Pennsylvania Office of Open Records decision granting one of its board members access to text messages and emails between the district superintendent, other directors and the group that represents the district, Slusser Law Firm.

The district initially denied Grega’s request, arguing the emails are subject to attorney-client privilege and text messages do not exist.

The Office of Open Records, however, determined Weatherly did not make a good faith search for the records.

“Although the District asserts that it searched the agency’s files, it is unclear if it asked the individuals identified in the request whether each had any responsive text messages in their possession,” said Jill Wolfe, OOR appeals officer. “The District did not provide sufficient evidence of a good faith search for text messages of the individuals identified in the request.”

As for the argument of attorney-client privilege, Wolfe said the district needed to provide further evidence.

“Based on the evidence submitted by the district, merely stating that the records are subject to the attorney-client privilege and attorney-work product doctrine is insufficient to meet the burden of proof,” she said.

Grega sought emails and text messages from Dec. 1-18.

The district asserted that emails between the superintendent and other board members do not exist in electronic format, because the emails contain exempt information that would require redaction in hard copy form.

Weatherly filed its appeal of the OOR decision in Carbon County Court on Thursday.

Attorney Chris Slusser said Friday morning that the district felt strongly about its need for an appeal.

“The text messages simply don’t exist,” Slusser said. “It isn’t an attempt to protect texts or anything like that. They don’t exist. The affidavit to the OOR admittedly could have been a little clearer on what the district did to determine they don’t exist.”

As it pertains to the emails, Slusser said Weatherly’s position is that they are protected by attorney-client privilege.

“Those are communications we believe should be protected from an OOR perspective,” he said. “We have to be careful to maintain the integrity of those documents, the contents of which we believe are protected under law.”

The OOR has sided with Grega in several recent appeals of Right To Know request denials.

Grega, per the OOR final decision, has been granted access to communications regarding district sports participation during the COVID-19 pandemic, district invoices from the Slusser Law Firm, and communications related to memoranda of understanding.

The OOR upheld the district denial of Grega’s request for communications between the superintendent and collective bargaining representatives regarding future health care options.