Francis Pileggi is a partner in the firm of Eckert Seamans Cherin & Mellott, LLC, and practices primarily in the areas of corporate and commercial litigation. Visit Francis' biography page on his firm's website for more information.

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).

Procedural History:

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.

Court’s Reasoning:

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.

It remains useful to compare how the PA RTK Law compares to similar laws in other jurisdictions.  Freedom of Information Act (FOIA) statutes in the State of Delaware, and also the federal counterpart statute do not generally allow access to criminal investigations.  FOIA is the name given to many RTK laws in other states.

Brief Overview

The premise of both the federal and Delaware state FOIA laws is that public business should be conducted in an open and public manner, and thus members of the public are generally entitled to records from public entities. However, that entitlement is not absolute. Both federal and state laws have enumerated exemptions to what constitutes a public record. Neither statute, however, provides anything akin to the PA Office of Open Records.

  •  Under Delaware FOIA laws, criminal files and records pertaining to potential litigation and are not subject to disclosure.

21 Del. C. § 10002(l)[1] of the Delaware FOIA law lists several types of records that are not deemed, for purposes of this statute, “public records,” including:

(4) Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.

(9) Any records pertaining to pending or potential litigation which are not records of any court.

21 Del. C. § 10002(l) (emphasis added). In summary, FOIA prevents the disclosure of criminal files and criminal records, and any records pertaining to pending or potential litigation.

  • Criminal Files & Criminal Records

The privacy concerns of witnesses, informants, and defendants themselves prevent the disclosure of criminal records and criminal files through FOIA. Del. Op. Atty. Gen. 10-IB13 (Del.A.G.), 2010 WL 4154565.

[T]he criminal records exemption of section 10002 makes a distinction between “criminal files” and “criminal records.” While any person may obtain a copy of his/her criminal record, subject only to an agency’s authority to withhold certain information contained in the criminal record, “criminal files” are closed; there is no exception in the statute. . . . But other policy concerns expressed by the statute remain. Witnesses frequently speak to authorities on condition of anonymity, or at least with an expectation that their information will be held in confidence with law enforcement. That expectation does not suddenly expire with the completion of the criminal case. In addition, criminal suspects are often arrested by law enforcement when they are not performing at their best. The embarrassment of their behavior often causes them to plead guilty rather than expose their misbehavior to public scrutiny. Thus, the privacy concerns of witnesses, informants and defendants themselves are each implicated by a reading of the statute that would except closed criminal files from the FOIA exemption for criminal files.


An arrest record is categorized as a criminal record and is exempt from disclosure. Although records relating to the recovery of a handgun, for example, is not clearly identifiable as a criminal record, it may be considered part of criminal file and at the very least, records such as witness statements would be exempted from disclosure for policy concerns. Even if all of the records relating to the recovery of a handgun are not deemed part of a criminal file, as explained below, the records fall within another exemption of the statute.

  • Pending or Potential Litigation

A litigant may not use FOIA to obtain information from the Delaware State Police to use in trial. Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **8-9 (Del. Super. Mar. 31, 2003). In Public Defender v. State Police, the Superior Court held the Public Defender’s Office[2] was not entitled to records from the State Police because “[w]hile the Public Defender’s clients mostly are Delaware citizens and while some of them might be especially curious about the state police training and methods, their interest in the materials is not related to the public’s right to know. Their legitimate interest concerns pending or potential litigation, which is exempt from the Act.” Id.

The Delaware Attorney General’s Office and Delaware courts have consistently held that “FOIA’s pending/potential litigation exemption is designed to maintain a level playing field: a party or potential party to litigation cannot use FOIA to obtain information in lieu of the rules of civil discovery. ‘Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.’” Del. Op. Atty. Gen. 06-ID21 (Del. A.G.), 2006 WL 3113705 (quoting Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003)); see also Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950 (“The exemption applies when [i]t is exclusively about litigators and litigants looking for materials that might help them in court.”) (internal citations omitted).

Requesting records from the State Police on behalf of a client to aid in litigating a case, is the exact purpose for which the Delaware Legislature forbade FOIA from being used. One cannot obtain records through FOIA when the sole purpose for obtaining them is to search for evidence that may assist in the course of litigation, even if the requested records do not constitute criminal files or criminal records.

  • Under federal laws, disclosure of investigation records would constitute an unwarranted invasion of person privacy and are therefore exempt from disclosure.

Similar to the Delaware statute, the federal FOIA exempts:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source

5 U.S.C. § 522(b)(A)(7). The United States Supreme Court has held that “as a categorical matter that a party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no ‘official information’ about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is ‘unwarranted.’” Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 780 (1989).  In other words, law enforcement records about a private citizen are not subject to disclosure under FOIA.

The ATF[3], by way of example, requires a lawyer to have a client verify his or her identity pursuant to 28 C.F.R. § 16.41(d) before the agency can process a request. If one’s client is the subject of the investigation for which one is seeking records. 28 C.F.R. § 16.41(d) states, in part, “[w]hen you make a request for access to records about yourself, you must verify your identity.” If one’s client is not the subject of the files sought, the law regards disclosure of law enforcement records as an invasion of privacy.


[1] Copy of the Delaware FOIA statute is available at this link.

[2] The Court held that the Public Defender’s Office was not a citizen under FOIA and refused to recognize the Assistant Public Defender’s presence in her personal capacity reasoning that she admitted that “she was acting on behalf of the office of the Public Defender.” Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **9, 12 (Del. Super. Mar. 31, 2003).

[3] “ATF is a law enforcement agency in the United States’ Department of Justice that protects our communities.”  ATF, About the Bureau of Alcohol, Tobacco, Firearms and Explosives,