The Commonwealth Court recently required the disclosure, pursuant to the RTK Law, of the identity of the members of a panel reviewing applications for permits to grow, process and dispense medical marijuana in Pennsylvania, in the matter of Penna. Dept. of Health v. McKelvey, Comm. Ct., No. 1372 C.D. 2017 (Sept. 27, 2018).
The Office of Open Records (OOR) rejected the argument of the Pennsylvania Department of Health that the requested records could be withheld based on a regulation under 28 Pa. Code § 1141.35(c), which at the relevant time provided that the applicant of a permit may not obtain the names of persons reviewing the application for dispensing medical marijuana. That regulation has since been amended, but the amendment was not applicable to the instant decision. On appeal, a reporter for PennLive was granted his request that the Department of Health provide, within 30 days, information regarding the identity of the panel members reviewing the relevant applications.
Noteworthy Principles Announced in the Decision:
(1) Purpose of RTK Law:
In Pennsylvania Department of Health v. McKelvey, the court reiterated the purpose of the Right to Know Law as allowing citizens to “scrutinize government activity and increase transparency.” See Slip. op. at 5 (citing SWV Yankees LLC v. Wintermantel, 45 A. 3d 1029, 1034, 1050 (Pa. 2010) (stating that the RTKL is “remedial legislation 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.”) (citations omitted)).
(2) Exceptions to Presumption:
The court also recited the major exceptions to the presumption that records in possession of a state agency are public. See Section 305(a) of the RTKL, 65 P.S. § 67, 305(a). Those presumptions do not apply to information if: “(1) the record is exempt under Section 708 (of the RTKL); (2) the record is protected by a privilege; or (3) the record is exempt from disclosure under any other Federal or State Law or regulation . . . .” See Slip op. at 6.
The court explained that those exemptions from disclosure must be narrowly construed due to the remedial nature of the RTKL and an agency bears the burden of proving by a preponderance of the evidence that a record is exempt from disclosure under one of the enumerated exemptions.
The Department argued that under Section 708(b)(1)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii), its regulation at 28 Pa. Code § 1141.35(c) prohibits the disclosure of the names relating to persons reviewing applications.
The court’s extensive reasoning included the acknowledgment that the Department failed to establish that the person requesting the information was an applicant, and that the plain language of the regulation the Department relied on does not restrict a non-applicant from obtaining the information. The court also explained that the interpretation of the Department was inconsistent with the plain language of the regulation, and was therefore rejected. See pages 8 and 9.
The court also described the elements of the “personal security” exception to disclosure and why it does not apply here. The personal security exemption from disclosure under the RTKL requires an agency to demonstrate: “(1) a reasonable likelihood of (2) substantial and demonstrable risk to a person’s security.” See page 10 (citing 65 P.S. § 67.708(b)(1)(ii) and Governor’s Office of Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011).
The court concluded by reasoning that a mere affidavit stating that a disclosure “may” expose a person, such as the member of a review panel, to a “plethora” of issues is conjecture and “simply too speculative to justify the exemption under the personal security provision of the RTKL.”
Moreover, the court added that the standard to establish an exemption under that provision is that disclosure is “reasonably likely” to result in a substantial and demonstrable risk of physical harm to the personal security of the individual. See page 12. That such harm “may” result does not suffice.