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Wednesday,

December 3 0, 2 015 at 2 :47:01 PM Eastern Standard Time

Subject:
Date:
From:
To:

RTKL request
Tuesday, December 29, 2015 at 3:10:11 PM Eastern Standard Time
Michael O'Keefe
Julianne MaGera

December 29, 2015


Via electronic mail (jmattera@pennlive.com)
Julianne Mattera
Reporter
Patriot-News/PennLive
Dear Ms. Mattera:
On November 24, 2015, in my capacity as the Open Records Officer for the Borough of
Hummelstown, I received a Right-to-Know Law (RTKL) request from you directed to the Borough
of Hummelstown via electronic mail in which you made the following request: Please provide a
digital copy of the results of the internal review into the shooting death of David Kassick by
Officer Lisa Mearkle. Following my receipt of your request, I informed you on December 1, 2015,
that the Borough was invoking the thirty (30) day extension of time permissible under the RTKL to
permit necessary legal review pertaining to your request before issuing any final response. The legal
review compelling the extension of time to issue a final response to your request is complete and this
communication constitutes the Boroughs final response to your RTKL request received on November
24, 2015.
By way of relevant background as to the internal review (Report) that is the subject of your
RTKL request, on May 7, 2015, the Borough of Hummelstown engaged the law firm of Elliott
Greenleaf, P.C. to conduct a noncriminal internal investigation and legal review of the February 2,
2015, shooting death of David Kassick by Hummelstown Police Officer Lisa Mearkle. The
engagement of Elliott Greenleaf was related to the criminal investigation being conducted by the
Pennsylvania State Police of the same shooting incident. In addition, the Borough of Hummelstown
commissioned the Elliott Greenleaf internal investigation and review in anticipation of litigation arising
from the shooting and for legal advice related to the Boroughs predecisional deliberations on required
governmental action to be taken in the wake of the shooting. As such, the Report that you have
requested be provided to you constitutes legal advice rendered by the Boroughs attorneys and is the
work product of Elliott Greenleaf, reflecting the mental impressions, conclusions, opinions, legal
theories, and strategy of Mr. Handelman and Ms. Wechsler, the two attorneys who authored the Report.
Your request for the results of the internal review into the shooting death of David Kassick
by Officer Lisa Mearkle is denied for the following reasons.
First, the Report is privileged as defined by the RTKL, specifically in 65 P.S. 67.102
(defining Privilege), pursuant to the attorney-work product doctrine and the attorney-client privilege.
The Report is a protected attorney-client communication and is the work-product of Elliott Greenleaf,
protected from disclosure by Federal Rule of Civil Procedure 26(b)(3) and Pennsylvania Rule of Civil
Procedure 4003.3, as well as all applicable state and federal case law. Because it is privileged, the
Report does not constitute a public record as defined by the RTKL 65 P.S. 67.102 (defining Public
Record subpart (3)). Accordingly, the Report is not subject to access under Chapter 7 of the RTKL
or any other provisions thereof.
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Second, the Report is otherwise exempt from production under the Pennsylvania Right-to-Know
Law, specifically including, but not limited to, pursuant to 65 P.S. 67.708(b)(17)(ii) (record of an
agency relating to a noncriminal investigation, including investigative materials, notes, correspondence
and reports); 65 P.S. 67.708(b)(16)(ii) (record of an agency relating to a criminal investigation,
including investigative materials, notes, correspondence and reports); 65 P.S. 67.708(b)(10)(i)(A)
(predecisional deliberations relating to a course of action or any research, memos or other documents
used in the predecisional deliberations); and 65 P.S. 67.708(b)(7) (records relating to an agency
employee).
You have a right to appeal this denial of information in writing to Erik Arneson, Executive
Director, Office of Open Records (OOR), Commonwealth Keystone Building, 400 North Street, 4th
Floor, Harrisburg, Pennsylvania 17120. If you choose to file an appeal you must do so within 15
business days of the transmission date of this response and send to the OOR: (1) this response; (2)
your request; and (3) the reason why you think the agency is wrong in its reasons for saying that the
record is not public (a statement that addresses any ground stated by the agency for the denial). If the
agency gave several reasons why the record is not public, state which ones you think were wrong.
Also, the OOR has an appeal form available
https://www.dced.state.pa.us/public/oor/appealformgeneral.pdf.

on

the

OOR

website

at:

Sincerely,
Michael J. OKeefe, Right to Know Officer
Borough of Hummelstown

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