Easton Area School District Fails to Disclose 98 Documents in Delayed Palmer Elementary Construction Right to Know Law Request

December 30, 2019 Letter to OOR and EASD

Dear Attorney Wolfe –

Following my appeal, the Easton Area School District government (EASD) replied on December 9^th with additional records consisting of 32 emails on 52 pages, Attorney Young’s attestation, and a lengthy 17-page list of 235 email redactions. I note that EASD’s Mr. Michael Simonetta formally attested that “more than 3000 pages of emails were identified as potentially responsive to the request” which means 98% of the records are being held by EASD from the public in secret.

As the new Palmer Elementary School construction issue has been going on for well over 2 years, the public certainly has a right to know what is going on. The construction of the new school is not a sensitive and private matter, but should instead be openly disclosed to all taxpayers and affected parents. Some of the redacted emails claimed to be “predecisional” date from August 2017. One would think that nearly all documents should be disclosed instead of only ~2% of the total pages.

The objective of the Right to Know Law (RTKL) is to empower citizen by affording them access to information concerning the activities of their governments. RTKL is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Furthermore, EASD bears the burden of proving the applicability of any cited exemptions.

I have procured from other sources, including a RTKL request with Palmer Township in late 2019, 98 public EASD email records that are not listed in either the redaction log published by EASD or its released documents. These documents contain some critical information (my emphasis in bold) such as:

• The EASD superintendent wrote on 10/21/2018: “I strongly suggest that we discuss abandoning the [Palmer Elementary] property altogether and move the educational enterprise to the middle school permanently.”
• In the same email he wrote of Palmer Township: ““I agree with [EASD School Board Member/President] Mr. Chando on this matter. We have been representing ‘the greater good’ for the community and we have not been treated as such by the township or their subordinates. The township has been most disrespectful in causing us to spend thousands of taxpayer dollars on ideas that will help them solve a township problem. We have all tried to contain our frustration at these circumstances by dealing with the township with respect and following their directions in spite of serious questions in their judgement. I cannot imagine another municipal body in the district asking us to jump through such hoops in order to create better community services that will benefit everyone.”

Here is a list of 98 EASD public documents not shared by EASD in response to this request, and, in my opinion, should have been included by them prior to my appeal. Many were procured from Palmer Township per a separate RTKL request in late 2019. The 98 documents are available at this link. Due to the filesize, I can send them as PDFs in multiple emails if you prefer. List below is filename listed first, many files contain multiple emails/documents.

• 1)         2017 1130 D’HUY Engineering Meeting Minutes
• 2-7)     2017 1215 Colver to Fehnel Emails (6 documents dated on 12/13/17 and 12/15/17)
• 8-10)   2018 0303 Faherty to Faul Email (3 documents from March 2018)
• 11-12) 2018 0604 Pidcock to Faul Email (2 documents from June 2018)
• 13)       2018 0731 Adams to Township Supervisors Letter
• 14)       2018 0914 Bruno to Faherty Letter
• 15)       2018 0920 Bruno to Faul Letter
• 16-18) 2018 1021 Reinhart to BOE, Adams Email (3 documents from October 2018)
• 19)       2018 1030 Adams to BOE Letter
• 20)       2018 1119 Freund to Bruno Letter
• 21)       2018 1126 Freund to Bruno Letter
• 22)       2018 1130 Bruno to Freund Letter
• 23)       2019 0624 Adams to BOE Letter
• 24)       2019 0922 Adams to Township Supervisors Letter
• 25)       2018 0119 Faul to Bruno Emails (3 documents)
• 26)       2018 0209 Kramer to Reinhart Email
• 27-30) 2018 0522 Bruno to Faul Freund Simonetta Emails (4 documents)
• 31)       2018 0608 Kramer to Reinhart and Faul Email
• 32-33) 2018 0622 Bair to Bruno Faul Emails (2 documents)
• 34)       2018 0628 Corby to Faul Bruno Email
• 35-36) 2018 0911 Faul to Bruno Email (2 documents)
• 37)       2018 1022 Faul to Bruno Email
• 38)       2018 1025 Faul to Bruno and Freund Email
• 39)       2018 1102 Bruno to Reinhart Letter
• 40-55) 2018 1119 Freund, EASD BoE, Faul, Bruno, Grice et al Emails (16 documents)
• 56-62) 2019 0111 Billings to Rosa, Bruno, Freund Emails (7 documents)
• 63-92) 2019 0326 Bruno to Faul Rosa et al Emails (30 documents)
• 93-98) 2019 1004 Faul to Dillman Bruno Rosa et al Emails (6 documents)

I submit this list of 98 documents as evidence that EASD is not compliant with the Right to Know Law. The existence of these 98 documents casts doubt upon their efficacy of their good faith search effort. I would like to request that EASD search again to locate more documents that should have been included prior to my appeal as the probability that I somehow managed to locate the only 98 documents missing from their response is unlikely.

Next, EASD chose to redact 235 emails simply as “Privileged” under attorney-client privilege and “Predecisional.” I reject these bald assertions as insufficient in compliance with the RTKL.

I request the OOR to perform an in camera review of all 235 emails in their unredacted form as listed on the EASD redaction log dated 12/9/2019. I cite County of Centre v. Campbell and Schwartz v. Palmerton Area School District as precedent.

For all records EASD claimed “Privileged” I challenge them to demonstrate to OOR via in camera  review that:

1. The individual asserting the privilege is a client or sought to be a client (for instance, many of the EASD emails include engineering firms and other contractors)
2. The communication was made to an attorney
3. The communication was made outside the presence of strangers and relates to a fact communicated to the attorney by a client for the purpose of securing legal advice, and not for the purpose of committing a crime or tort
4. The privilege has been claimed and not been waived by the client. (for instance by an engineering firm, contractor, or EASD board member or employee forwarding to a party outside of the attorney-client privilege)

Attorney-client privilege does not protect against the disclosure of facts. Attorney-client privilege protects only the disclosure necessary to obtain informed legal advice, where the disclosure might not have occurred absent the privilege, and where the client’s goal is to obtain legal advice.

For all records EASD claimed “Predecisional” I challenge them to demonstrate to OOR via in camera  review that:

1. The information is internal to the agency
2. The information is deliberative in character (i.e. pertaining to proposed action or policy-making)
3. The information is prior to a related decision, and thus “predecisional”

The exemption to predecisional in the RTKL does not protect against the disclosure of facts. Factual material contained in otherwise deliberative documents is required to be disclosed if it is severable from its context.

Kind regards, Jake Towne