A recent decision of the Commonwealth Court of Pennsylvania upheld a determination by the Office of Open Records, and concluded that neither the Pennsylvania Department of Health nor the private company involved had established that the withheld records were exempt as confidential proprietary information under Section 708(b)(11) of the RTKL. See Broomall Operating Company, LP v. Murray, Pa. Cmwlth Ct., No. 1685 C.S. 2017 (Dec. 14, 2018).

Why This Case is Noteworthy: This case is noteworthy for providing a rationale and supporting case law for the provision in the RTKL that in order for confidential proprietary information, including trade secrets, to be exempt from disclosure, several requirements must be satisfied.

Brief Background:

This case involved a request by an attorney for information regarding the sale of a nursing home that he was suing in two personal injury suits. He sought records regarding the applications to the Pennsylvania Department of Health (DOH) for a license for the new management of the facility, and information about the new owners of the facility, including the related submissions to the DOH.  The DOH granted in part and denied in part the request, and redacted documents that were provided.  The OOR ruled that the DOH improperly withheld documents that were neither confidential nor proprietary, and the DOH failed to meet its burden to establish that the records were exempt from disclosure or constituted financial records to which a Section 708(b)(11) exemption would apply.

The OOR issued its final determination in October 2017. The OOR decision was appealed directly to the Commonwealth Court.

Legal Analysis:

The court began its analysis with an overview of the RTKL including its purpose to empower citizens by providing them access to information regarding the activities of government. Slip op. at 6.  The court also explained that exceptions to disclosure of public records must be narrowly construed. Id. at 7.  The standard of review of a final determination of the OOR is de novo and the scope of review by the court is plenary.

Importantly, the court observed that records in the possession of a Commonwealth agency are presumed to be public unless they are exempt under Section 708 of the RTKL, protected by a privilege, or exempt from disclosure under any other federal or state law or judicial order or decree. See Section 305(a).  Slip op. at 11.  The presumption is that government records are public and the government agency has the burden to prove that an exception to the duty to disclose applies. Id. at 11-12.

Regarding an alleged exemption for trade secrets and “confidential proprietary information” of a private company that might be in the possession of an agency, the court described the prerequisites that must be satisfied in order to successful assert that exemption. See Section 708(b)(11).

Section 102(ii) defines “confidential proprietary information.” The court explained the criteria that must be satisfied in order for the court to find that the disclosure of such confidential information would “cause substantial harm to the competitive position of the person from whom the information was obtained.”  Slip op. at 13.

Reasoning of the Court:

The court reasoned that in this case the only support for the exemption presented was a “conclusory statement” that could not satisfy the low burden to establish that the documents in question were exempt from disclosure as confidential proprietary information. An affidavit was submitted that merely pointed out that the document in question was unique–but it did not establish whether the information in the document was confidential for purposes of the exemption based on the criteria established by the statute and by case law. Id. at 16.

The court cited to other cases where an affidavit was presented but because it was not detailed and merely conclusory, it was not sufficient to prove that the requested records were exempt from disclosure. Thus, the decision of the OOR was affirmed.

Bottom Line: The prerequisites and nuances that must be addressed in order to qualify for a confidentiality exemption will not be satisfied by a conclusory affidavit.