Keystone Nursing & Rehab of Reading, LLC v. D. Simmons-Ritchie ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Keystone Nursing and Rehab of :
Reading, LLC, Keystone Nursing and :
Rehab of Lancaster, LLC, Phoenixville
:
Care, LLC, Rosemont Care, LLC, :
Stenton Care, LLC, Harborview :
Rehabilitation and Care Center at :
Doylestown, LLC, Harborview :
Rehabilitation and Care Center at :
Lansdale, LLC, The Meadows at :
Harrisburg for Nursing and :
Rehabilitation, LLC, The Meadows at :
Camp Hill for Nursing and :
Rehabilitation, LLC, The Meadows :
at East Mountain-Barr for Nursing :
and Rehabilitation, LLC, The Meadows:
at Gettysburg for Nursing and :
Rehabilitation, LLC, The Meadows at :
Pottsville for Nursing and :
Rehabilitation, LLC, The Meadows at :
Sunbury for Nursing and Rehabilitation,
:
LLC, The Meadows at Scranton for :
Nursing and Rehabilitation, LLC, :
The Meadows at Stroud for Nursing and
:
Rehabilitation, LLC, The Meadows at :
Summit for Nursing and Rehabilitation,
:
LLC, The Meadows at Tunkhannock :
For Nursing and Rehabilitation, LLC,:
and The Meadows at West Shore for :
Nursing and Rehabilitation, LLC, :
Petitioners
:
:
v. : No. 1631 C.D. 2018
:
Daniel Simmons-Ritchie and PA Media :
Group, :
Respondents :
Golden Living, :
Petitioner :
:
v. : No. 1692 C.D. 2018
:
Daniel Simmons-Ritchie and The PA :
Media Group, :
Respondents :
Monroeville Operations, LLC, :
Mt. Lebanon Operations, LLC, :
Murrysville Operations, LLC, and :
South Hills Operations, LLC, :
Petitioners :
:
v. : No. 1696 C.D. 2018
: Argued: September 10, 2019
Daniel Simmons-Ritchie and :
PA Media Group, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 3, 2020
The above-captioned Petitioners petition for review1 of a Final Determination
of the Pennsylvania Office of Open Records (OOR) dated December 3, 2018, which
denied in part and granted in part a Right-To-Know Law2 (RTKL) request (Request)
filed by Daniel Simmons-Ritchie of the PA Media Group (collectively, Requesters)
1
These matters were consolidated by order of this Court dated February 22, 2019.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
with the Pennsylvania Department of Health (Department) pertaining to the transfer
of ownership of 35 long-term care facilities (Facilities) in Pennsylvania. Petitioners
generally request this Court to reverse the Final Determination in part and conclude
that the records in question are exempt from disclosure under the RTKL as
confidential proprietary information and trade secrets. Petitioners also request this
Court to conclude that part of the Request is not sufficiently specific and, as such,
responsive records to that part need not be provided by Department. Upon review,
we affirm in part and reverse in part.
I. Factual Background and Procedure
A. The Request and Department’s Response
On May 18, 2018, Requesters filed the Request with Department to obtain
documents related to the transfer of ownership of the Facilities from Golden Living
operators to other entities, including Petitioners. Specifically, in relevant part, the
Request sought the following:
1) A copy of all correspondence by and between the Department and
the Facility (and/or the Facility’s owners, agents, and/or attorneys),
including all attachments thereto, pertaining to changes in
ownership for 35 nursing homes . . . between January 1, 2016 to
present.
2) A copy of all agreements and contracts (including but not limited to
management agreements, operations transfer agreements, lease
agreements, administrative services agreements, settlement
agreements, and other contracts of any kind) supplied to the
Department by the Facility (and/or the Facility’s owners, agents,
and/or attorneys), including all attachments thereto, pertaining to
changes in ownership for 35 nursing homes . . . between January 1,
2016 to present.
...
3
4) A copy of all correspondence sent and received (including text
messages and written memos) by Acting Department Secretary Dr.
Rachel Levine, Communications Director April Hutcheson, Press
Secretary Nate Wardle, and Nursing Home Division Director Susan
Williamson, between April 1, 2018 to present [(May 18, 2018)].[3]
(Reproduced Record (R.R.) at 519a.) After obtaining additional time to respond,
Department issued a final response to the Request on July 10, 2018, granting the
Request in part and denying it in part. Department provided some records in
response to Items 1 and 2 of the Request; however, it redacted information in the
disclosed records, including: “individual home addresses, phone numbers, fax
numbers, bank account numbers, and email addresses.” (Id. at 528a.) Department
also withheld some records pertaining to Items 1 and 2 of the Request as exempt,
either as records Department deemed to be predecisional or records that the Facilities
deemed to contain trade secrets or confidential proprietary information (Withheld
Records). (Id.) Department denied Item 4 of the Request as not being sufficiently
specific for it to identify the records being requested. (Id.)
B. Appeal to the 66
On July 31, 2018, Requesters appealed Department’s final response with
respect to Items 1, 2, and 4, using the OOR’s standard electronic appeal form. (R.R.
at 7a-8a.) Requesters attached to the appeal form a written submission setting forth
their specific reasons for appealing Department’s final response. As to Items 1 and
2, Requesters argued that the Withheld Records “are public and should be provided”
and that “[t]he OOR has previously granted access to correspondence regarding
changes of nursing home ownership.” (Id. at 5a.) As to Item 4, Requesters argued
3
The Request sought three additional items, which are not at issue in the present matter;
therefore, discussion of the additional items has been omitted.
4
that “[b]ecause [the] [R]equest included a limited time frame (April 1 to May 18)
and only encompassed a limited number of parties (4 employees) . . . this request is
sufficiently specific.” (Id. at 6a.) Lastly, Requesters asserted that Department
should provide an exemption log of all documents it withheld. 4 Thereafter, on
August 6, 2018, Requesters submitted an amended appeal letter, which made
substantially the same arguments as the July 31, 2018 appeal letter, but contained
additional citations.
Keystone Nursing and Rehab of Reading, LLC and 17 other Petitioners
(collectively, Consolidated Providers5) submitted requests to participate6 in the
appeal before the OOR, as did Monroeville Operations, LLC and 3 other Petitioners
4
Requesters’ appeal to the OOR makes additional arguments concerning issues not before
us on appeal; therefore, those arguments have been omitted.
5
Consolidated Providers are: Keystone Nursing and Rehab of Reading, LLC; Keystone
Nursing and Rehab of Lancaster, LLC; Phoenixville Care, LLC; Rosemont Care, LLC; Stenton
Care, LLC; Harborview Rehabilitation and Care Center at Doylestown, LLC; Harborview
Rehabilitation and Care Center at Lansdale, LLC; The Meadows at Harrisburg for Nursing and
Rehabilitation, LLC; The Meadows at Camp Hill for Nursing and Rehabilitation, LLC; The
Meadows at East Mountain-Barr for Nursing and Rehabilitation, LLC; The Meadows at
Gettysburg for Nursing and Rehabilitation, LLC; The Meadows at Pottsville for Nursing and
Rehabilitation, LLC; The Meadows at Sunbury for Nursing and Rehabilitation, LLC; The
Meadows at Scranton for Nursing and Rehabilitation, LLC; The Meadows at Stroud for Nursing
and Rehabilitation, LLC; The Meadows at Summit for Nursing and Rehabilitation, LLC; The
Meadows at Tunkhannock for Nursing and Rehabilitation, LLC; and The Meadows at West Shore
for Nursing and Rehabilitation, LLC.
6
Pursuant to Section 1101(c)(1) of the RTKL:
A person other than the agency or requester with a direct interest in the record
subject to an appeal under this section may, within 15 days following receipt of
actual knowledge of the appeal but no later than the date the appeals officer issues
an order, file a written request to provide information or to appear before the
appeals officer or to file information in support of the requester’s or agency’s
position.
65 P.S. § 67.1101(c)(1).
5
(collectively, Operations Providers7), and Golden Living, which OOR granted after
receiving no objections.
Having been granted status as direct interest participants, Petitioners filed
position papers and submitted multiple affidavits and attestations in support of their
arguments. Department also filed a position paper reaffirming its reasons for
granting and denying the Request in part. Requesters responded, reiterating their
position that the Withheld Records are public records subject to disclosure. With
respect to Item 4, Requesters asserted that their “request has not changed’” and that
they “seek all responsive records” with respect to Item 4 “regardless of whether those
records do or do not relate to ‘nursing home lease information.’” (R.R. at 79a.)
On August 31, 2018, an appeals officer at OOR presented two preliminary
questions to the parties. First, the appeals officer asked Requesters whether they
were “appealing the Department’s redaction of personal information” from the
disclosed records. (Id. at 501a.) Second, the appeals officer asked Department to
clarify “how many withheld or redacted records are at issue” and for “Department
[to] give [] an estimate of how much time it would take to produce” exemption logs
detailing the make-up of the Withheld Records. (Id.) With respect to the redactions,
Requesters responded by stating that it was their belief that “the [D]epartment’s
redactions were reasonable and consistent with the RTKL’s exemption regarding
personally identifying information.” (Id. at 503a.) With respect to the exemption
logs, after agreement by the parties, the appeals officer asked Department to create
exemption logs for four of the Facilities (Exemption Logs) to determine “whether
an in camera review is necessary.” (Id. at 502a.) Department produced the
7
Operations Providers are: Monroeville Operations, LLC; Mt. Lebanon Operations, LLC;
Murrysville Operations, LLC; and South Hills Operations, LLC.
6
Exemption Logs8 on September 18, 2018. (Id. at 509a-15a.) After review of the
Exemption Logs, the OOR determined that “a full in camera review of all records”
was not necessary. (Consolidated Providers, Certified Record (C.R.) Item 32;
Operations Providers, C.R. Item 32; Golden Living, C.R. Item 32.)
C. The OOR’s Final Determination
Based upon the parties’ position papers, and after receiving several
extensions, the OOR issued its Final Determination on December 3, 2018, which
granted Requesters’ appeal in part and denied it in part. The OOR, in relevant part,
made the following findings:
(1) The Appeal is sufficient under Section 1101(a) of the RTKL.
Requesters’ appeal met the requirements set forth in Section 1101(a)(1) of the
RTKL. Section 1101(a)(1) provides that on appeal, a request must “state the grounds
upon which the requester asserts that the record is a public record . . . and . . . address
any grounds stated by the agency for delaying or denying the request.” 65 P.S.
§ 67.1101(a)(1). The OOR concluded Requesters satisfied the first part of Section
1101(a)(1) by submitting the OOR’s standard electronic appeal form, which states
“the records do not qualify for any exemptions under [Section] 708 of the RTKL,
are not protected by a privilege, and are not exempt under any Federal or State law
or regulation.” (Final Determination at 12 (citation omitted).) The OOR further
concluded Requesters satisfied the second part of Section 1101(a)(1) by “attach[ing]
8
The OOR found that the Exemption Logs generally show that the following records were
withheld from disclosure: “lists of facilities owned or operated by identified operators, operating
agreements, master leases, responses to Department questions, personal resumes, governance
information, operation transfer agreements, secondary agreements pursuant to the ownership
transfer, and structuring information.” (Final Determination at 10.)
7
a written rationale to [the] appeal identifying each exemption invoked by the
Department, [and] asserted [their] belief that the exemptions do not apply.” (Id. at
12.) Thus, the OOR found Requesters’ appeal “sufficient under Section 1101(a) of
the RTKL.” (Id. at 13.)
(2) Item 4 is sufficiently specific.
The OOR found that Item 49 is sufficiently specific under Section 703 of the
RTKL, which provides, in relevant part, that “[a] written request should identify or
describe the records sought with sufficient specificity to enable the agency to
ascertain which records are being requested.” 65 P.S. § 67.703. The OOR used the
three-part test set forth in Department of Education v. Pittsburgh Post-Gazette, 119
A.3d 1121 (Pa. Cmwlth. 2015), to determine whether the Request was sufficiently
specific. The test requires examining whether the Request sets forth: “(1) the subject
matter of the request; (2) the scope of documents sought; and (3) the timeframe for
which records are sought.” Id. at 1124. Citing Easton Area School District v.
Baxter, 35 A.3d 1259, 1265 (Pa. Cmwlth. 2012), the OOR concluded that while Item
4 lacks a subject matter, it is limited in scope and time; therefore, Item 4 was
sufficiently specific under Section 703. (Final Determination at 16.)
(3) Certain third-party records are exempt under Section 708(b)(11).
Based upon the Exemption Logs, the OOR determined that the Withheld
Records are comprised of five categories of records: (1) master leases; (2) resumes
9
In its Final Determination, the OOR refers to this item as Item 3, presumably because
only three of the items in the Request were at issue before it. However, because the parties refer
to this as Item 4 and because it is Item 4 in the Request, we will refer to this as Item 4.
8
of the third-party applicants or managers; (3) business plans; (4) operations
documents; and (5) responses to Department’s “Ten Questions.[10]” The OOR found
that certain categories of records were exempt from disclosure under Section
708(b)(11) of the RTKL, 65 P.S. § 67.708(b)(11), as trade secrets or confidential
proprietary information. In determining whether the records were kept confidential
for purposes of the confidential proprietary information exemption, the OOR
considered “the efforts the parties undertook to maintain their secrecy.” Dep’t of
Pub. Welfare v. Eiseman, 85 A.3d 1117, 1128 (Pa. Cmwlth. 2014), rev’d on other
grounds, 125 A.3d 19 (Pa. 2015). The OOR noted that:
Several of the parties have argued that the OOR improperly reads
efforts undertaken to maintain secrecy into the definition of
“confidential” when evidence of such efforts is only a requirement to
demonstrate trade secrets and have urged the OOR to adopt a parallel
construction to federal FOIA [(Freedom of Information Act, 5 U.S.C. §
552)] cases here. The OOR understands these arguments, but the test
suggested by the parties is contrary to the test articulated by the
Commonwealth Court in Eiseman, which explicitly related to the
definition of confidential proprietary information. This part of the
holding in Eiseman was not questioned by the Pennsylvania Supreme
Court in its partial reversal.
(Final Determination at 21 n.8 (citations omitted).)
The OOR found Golden Living did not meet its burden of demonstrating that
disclosure of the Withheld Records would result in substantial competitive injury.
Thus, the OOR concluded “that the attestation submitted by Golden Living is not
sufficient to demonstrate that the records are exempt from disclosure under Section
10
Department requests “[h]ealth [c]are [p]roviders [a]pplying [f]or [a] [l]icense [t]o
[o]perate [a] [h]ealth [c]are [f]acility” provide responses to 10 questions, including subparts,
relating to business structure, including ownership and management information; headquarters
location; health care services to be provided; previous experience in operating health care facilities;
and intentions with respect to charity care. (R.R. at 551a-53a.)
9
708(b)(11).” (Final Determination at 27.) With respect to the Consolidated
Providers, the OOR found that:
[T]he evidence submitted by the Consolidated Providers is sufficient to
demonstrate that the business plans and operations information are
confidential and proprietary under Section 708(b)(11). The
Consolidated Providers, however, have not provided any evidence that
the leases sought contain any information exempt under Section
708(b)(11), and therefore those leases[11] must be provided without
redaction. Similarly, the Consolidated Providers have not
demonstrated that release of the ownership or biographical information
submitted to the Department is confidential or likely to create
competitive harm.
(Id. at 30 (footnote omitted).) With respect to the Operations Providers, the OOR
found that:
[T]he evidence submitted by the Operations Providers is sufficient to
demonstrate that the business plans and operations information are
confidential and proprietary under Section 708(b)(11). Again,
however, the OOR is unable to find that the Operations Providers have
demonstrated that disclosure of the master leases, ownership
information or employee biographical information is likely to create
significant competitive harm for the Operations Providers.
(Id. at 31.)
Also before the OOR, but not before us, as a direct interest participant was
Guardian Elder Care (Guardian). The OOR concluded that Guardian met its burden
of demonstrating that its answer to the first question of Department’s “Ten
11
We note that the OOR found that the following seven Petitioners demonstrated that no
lease agreements exist for their facilities and, therefore, obviously cannot be disclosed since they
do not exist: (1) Keystone Nursing and Rehab of Reading, LLC; (2) Keystone Nursing and Rehab
of Lancaster, LLC; (3) Phoenixville Care, LLC; (4) Rosemont Care, LLC; (5) Stenton Care, LLC;
(6) Harborview Rehabilitation and Care Center at Doylestown, LLC; and (7) Harborview
Rehabilitation and Care Center at Lansdale, LLC. (Final Determination at 17.)
10
Questions” was exempt from disclosure, as well as its business plan, operations
documents, and minimum coverage ratios set forth in its lease agreements. (Final
Determination at 25.)
In summary, the OOR found that the business plans and operations
information of the Consolidated Providers and Operations Providers (collectively,
Providers) are exempt as confidential proprietary information. However, the OOR
ordered the disclosure of the master leases, biographical information, and ownership
information of all Petitioners, and the entirety of the Withheld Records with respect
to Golden Living (collectively, Disputed Records).
II. Discussion
On appeal,12 Petitioners collectively13 present the following seven issues14 for
review: (1) whether Requesters’ appeal to the OOR complies with the requirements
set forth in Section 1101(a)(1) of the RTKL; (2) whether there is sufficient evidence
of record to support finding that the Disputed Records are exempt from disclosure
as confidential proprietary information; (3) whether our precedent in Eiseman should
be reexamined and overturned; (4) whether this Court should remand this matter to
the OOR to determine whether the Disputed Records, including the leases,
ownership information, or biographical information, contain trade secrets; (5)
whether the OOR erred by ordering the release of records without ordering
redactions of those records to protect personal privacy rights; (6) whether Item 4 of
12
“On appeal from the OOR in a [RTKL] case, this Court’s standard of review is de novo,
and our scope of review is plenary.” Saunders v. Dep’t of Corr., 172 A.3d 110, 111 n.2 (Pa.
Cmwlth. 2017).
13
Pursuant to Pennsylvania Rule of Appellate Procedure 2137, Pa.R.A.P 2137, Golden
Living and Operations Providers adopted, in their entirety, the arguments made by Consolidated
Providers as set forth in Consolidated Providers’ brief. Both also filed their own briefs.
14
We have rearranged the order of Petitioners’ arguments for ease of discussion.
11
the Request is sufficiently specific under the RTKL; and (7) whether this Court
should remand this matter for an in camera review of the responsive records
pertaining to Item 4 to determine whether the responsive records contain information
which is exempt from disclosure.
Preliminarily, before reaching the merits of the parties’ arguments, we note
that “the objective of the [RTKL] . . . is to empower citizens by affording them
access to information concerning the activities of their government.” SWB Yankees
LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012.) We must “liberally construe
the RTKL to effectuate its purpose of promoting ‘access to official government
information in order to prohibit secrets, scrutinize actions of public officials, and
make public officials accountable for their actions.’” Levy v. Senate of
Pennsylvania, 65 A.3d 361, 381 (Pa. 2013) (quoting Allegheny County Dep’t of
Admin Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011)).
“Consistent with the RTKL’s goal of promoting government transparency and its
remedial nature, the exceptions to disclosure of public records must be narrowly
construed.” Bagwell v. Dep’t of Educ., 114 A.3d 1113, 1122 (Pa. Cmwlth. 2015).
We now turn to the merits of the parties’ arguments.
A. Whether Requesters’ appeal to the OOR complies with the requirements
set forth in Section 1101(a)(1).
Golden Living asserts that Requesters’ appeal to the OOR is not sufficient
under Section 1101(a)(1) of the RTKL because Requesters did not explain why they
believed the requested records are public records. Specifically, Golden Living
argues that Requesters, in their appeal to the OOR, “identified the exemptions
claimed by the D[epartment] and then claimed that [they] did not believe those
exemptions applied,” but that this assertion “hardly satisfies the [R]equesters[’]
12
obligation to ‘specify . . . particular defects’ with the D[epartment’s] decision.”
(Golden Living’s Brief (Br.) at 12 (fifth alteration in the original) (emphasis
omitted).) Requesters respond by arguing that their “appeal to the OOR consisted
of three pages of detailed explanation including a summary of interactions, the
specific items which the Requester[s] wished to appeal, a summary of each and the
response of the D[epartment] to each, and why the Requester[s] believed that the
withheld documents were public records.” (Requesters’ Br. at 46.) Therefore,
Requesters argue they satisfied the requirements set forth in Section 1101(a)(1).
As stated above, pursuant to Section 1101(a)(1) of the RTKL, a requester
appealing to the OOR must “state the grounds upon which the requester asserts that
the [requested] record is a public record . . . and shall address any grounds stated by
the agency for delaying or denying the request.” 65 P.S. § 67.1101(a)(1). To satisfy
the requirements set forth in Section 1101(a)(1), a requester must “state why the
[requested] records d[o] not fall under the asserted exemptions and, thus, [a]re public
records subject to access.” Saunders v. Dep’t of Corr., 48 A.3d 540, 543 (Pa.
Cmwlth. 2012). Section 1101(a)(1) does not require “a requester to prove anything;”
rather, Section 1101(a)(1) “merely places a burden on a requester to identify flaws
in an agency’s decision denying a request.” Dep’t of Corr. v. Office of Open
Records, 18 A.3d 429, 434 (Pa. Cmwlth. 2011) (emphasis omitted). Failure to
comply with Section 1101(a)(1) renders the appeal deficient. See Barnett v. Dep’t
of Pub. Welfare, 71 A.3d 399, 405-06 (Pa. Cmwlth. 2013); see also Padgett v. Pa.
State Police, 73 A.3d 644, 647 (Pa. Cmwlth. 2013) (“[A] minimally sufficient appeal
is a condition precedent for [the] OOR to consider a requester’s challenge to an
agency denial.”).
13
Here, Requesters filed the OOR’s standard electronic appeals form, which
states “the records do not qualify for any exemptions under [Section] 708 of the
RTKL, are not protected by a privilege, and are not exempt under any Federal or
State law or regulation.” (R.R. at 8a.) Attached to Requesters’ appeal to the OOR
was a three-page written submission identifying each rationale asserted by
Department for denying the Request in part and explaining Requesters’ rationale for
believing that the Withheld Records are public records that do not fall within the
asserted exemptions.
The standard electronic appeals form, coupled with Requesters’ written
submission, satisfy the requirements set forth in Section 1101(a)(1). In these
submissions, Requesters asserted that the Withheld Records are not exempt from
disclosure and set forth their rationale for believing that the asserted exemptions do
not apply. Accordingly, we affirm the OOR’s finding that Requesters satisfied the
requirements of Section 1101(a)(1) because Requesters identified what they believe
to be “flaws in an agency’s decision denying a request.” Dep’t of Corr., 18 A.3d at
434.
B. Whether there is sufficient evidence of record to support finding that the
Disputed Records are exempt from disclosure as confidential proprietary
information.
Petitioners argue that the OOR erred by not finding that all of the Withheld
Records, including the Disputed Records, were exempt from disclosure under the
RTKL. Petitioners, citing the attestations and affidavits they submitted, assert that
they submitted sufficient evidence to find that all of the Withheld Records are
exempt from disclosure under the RTKL as confidential proprietary information and
that the OOR erred in finding that some, but not all, of the Withheld Records were
exempt. With respect to the leases specifically, Petitioners argue that disclosure of
14
their leases would allow competitors to gain insight into Petitioners’ business model,
which they contend violates the OOR’s decision in Colgate-Palmolive Company v.
Pennsylvania Insurance Department (OOR, Dkt. No. AP 2013-1631, filed March 7,
2014). Petitioners also argue that the OOR erred by finding that Guardian’s lease
agreements were exempt, but not Petitioners’ leases, when the sworn verification
submitted by Guardian was substantially similar to the affidavits and attestations
provided by Petitioners.
Requesters argue that Petitioners have not met their burden of demonstrating
that the Disputed Records are exempt from disclosure as confidential proprietary
information. Requesters contend that the affidavits and attestations provided by
Petitioners are conclusory and that, while the affidavits and attestations “track the
language of the exemption, . . . merely stating that the test has been met without
providing sufficiently detailed evidence and examples of how and why the test is
met is not sufficient.” (Requesters’ Br. at 20.) Specifically, Requesters aver that
Petitioners have failed to provide evidence “which would lend credence to the fact
that Petitioners would likely suffer” competitive harm if the Disputed Records were
released. (Id.)
Pursuant to Section 305(a) of the RTKL, “[a] record in the possession of a
Commonwealth agency or local agency shall be presumed to be a public record.” 65
P.S. § 67.305(a). However, certain information, including confidential proprietary
information and trade secrets, are exempt from disclosure under the RTKL. Id; 65
P.S. § 67.708(b)(11). “The party asserting an exemption bears the burden of proving
the exemption applies” by a preponderance of the evidence.15 Highmark Inc. v.
15
“A preponderance of the evidence is such evidence as would lead a fact-finder to find
that the existence of a contested fact is more probable than the nonexistence of the contested fact.”
Office of the Dist. Atty. of Phila. v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth. 2017).
15
Voltz, 163 A.3d 485, 490 (Pa. Cmwlth. 2017). The term “[c]onfidential proprietary
information” is defined by Section 102 of the RTKL as:
Commercial or financial information received by an agency:
(1) which is privileged or confidential; and
(2) the disclosure of which would cause substantial harm to the
competitive position of the person that submitted the
information.
65 P.S. § 67.102. When determining whether records are “confidential,” we must
look to “the efforts the parties undertook to maintain their secrecy.” Eiseman, 85
A.3d at 1128.16 This test is referred to by the OOR and the parties as the “efforts
test.” “In determining whether disclosure of confidential information will cause
‘substantial harm to the competitive position’ . . . an entity needs to show: (1) actual
competition in the relevant market; and, (2) a likelihood of substantial competitive
injury if the information w[as] released.” Id.
The competitive injury portion of the test “is limited to harm flowing from the
affirmative use of proprietary information by competitors,” and this portion of the
test “should not be taken to mean simply any injury to competitive position.” Id.
(quoting Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1195
(9th. Cir. 2011)). In Colgate-Palmolive Company,17 the OOR concluded, in relevant
part, that “information[, which] relates to internal financial structure and corporate
business strategy” may be exempt from disclosure as confidential proprietary
information because “disclosure of this information would allow a competitor to
16
We note that Petitioners question the validity of Eiseman. This issue is discussed fully
in Subsection (D), infra.
17
“Although OOR’s final determinations are not binding on this Court, we may rely upon
them for their persuasive value.” Pennsylvanians for Union Reform v. Office of Admin., 129 A.3d
1246, 1256 n. 16 (Pa. Cmwlth. 2015).
16
evaluate the financial health or business strategies” of the entity at issue, “which
could in turn harm [the entity’s] ability to compete in the market.” Colgate-
Palmolive Company at 15.
“Relevant and credible testimonial affidavits may provide sufficient evidence
in support of a claimed exemption.” Office of the Dist. Atty. of Phila. v. Bagwell,
155 A.3d 1119, 1130 (Pa. Cmwlth. 2017). The affidavit or attestation “must be
specific enough to permit this Court to ascertain how disclosure . . . would reflect
that the records sought fall within the proffered exemptions.” W. Chester Univ. of
Pa. v. Schackner, 124 A.3d 382, 393 (Pa. Cmwlth. 2015). “[C]onclusory affidavits,
standing alone, will not satisfy the burden of proof.” Bagwell, 155 A.3d at 1130.
Further, “an affidavit which merely tracks the language of the exception it
presupposes is insufficient to demonstrate that the responsive records are exempt
from disclosure.” Pa. State Police v. Muller, 124 A.3d 761, 765 (Pa. Cmwlth. 2015).
Here, Petitioners submitted several affidavits and attestations as support for
their assertion that the Disputed Records contain confidential proprietary
information. We address the sufficiency of each Petitioners’ affidavits and
attestations in turn.
(1) Golden Living
Golden Living argues that the affidavit it submitted is sufficient evidence to
find that its Disputed Records are exempt from disclosure as confidential proprietary
information. Golden Living submitted the affidavit of Krista Elmore (Elmore), a
licensure specialist for Golden Gate National Senior Care, LLC. Elmore attested, in
relevant part, as follows:
3. Between October 1, 2016 and February 1, 2017, the Golden Living
[] operators transferred operations of the . . . Facilities . . . and such
17
transfer involved the execution by the parties of an Operations Transfer
Agreement (“OTA”). Effective as of the same date as the OTA, Golden
Living’s affiliated property owners leased the real property to the [n]ew
[o]perators.
...
6. The [transfer of ownership] [a]pplications submitted by these [n]ew
[o]perators contain information that is confidential and not publicly
accessible.
7. The [a]pplications contain specific disclosures regarding a range of
confidential and proprietary financial information and transaction
terms, including: (i) the business structure of Golden Living and its
affiliates; (ii) detailed biographical information regarding officers,
directors and key employees; and (iii) the operational support structure
of the [f]acilit[ies] and organization.
8. The [a]pplications include exhibits and other attachments that
describe the manner in which the Golden Living [f]acilities obtained
services needed to operate the [f]acilities and even include actual
operating agreements.
...
20. Disclosure of the documents sought in [Item] [] 2 of the . . . Request
would cause substantial harm to Golden Living[][c]enters operating in
other States as well as the organizations whose information is contained
in the [a]pplication.
(R.R. at 87a-91a.)
The OOR found that Elmore’s affidavit did not explain how release of the
Disputed Records would create actual competition, the second prong in determining
whether disclosure of a record would cause substantial harm to Golden Living.
Thus, the OOR concluded that the Elmore affidavit was not sufficient to demonstrate
the Disputed Records were exempt from disclosure pursuant to Section 708(b)(11).
We agree. Elmore’s affidavit is conclusory in that it states that disclosure of the
18
Disputed Records would cause Golden Living to suffer substantial harm but does
not specify how release of the Disputed Records would create actual competition in
the long-term care marketplace. Elmore’s affidavit merely tracks the language of
the confidential proprietary information exemption and, as such, “is insufficient to
demonstrate that the responsive records are exempt from disclosure.” Muller, 124
A.3d at 765. Unlike the verification submitted by Guardian, specifically with
regards to the minimum coverage ratio contained in its lease agreements, which is
discussed more fully below, Elmore’s affidavit lacks specificity and detail. The
affidavit is not “specific enough to permit this Court to ascertain how disclosure of
the [Disputed Records] would reflect that the records sought fall within the proffered
exemptions.” Schackner, 124 A.3d at 393. Describing the contents of the Disputed
Records in extremely general terms and stating that release of these records would
cause Golden Living to suffer competitive harm is not enough, even under a
preponderance standard, to demonstrate that the records at issue are exempt from
disclosure. Therefore, because Golden Living has not met its burden of
demonstrating that release of its Disputed Records would cause it to suffer
substantial competitive harm, the second prong of the definition of confidential
proprietary information, Golden Living has not demonstrated that the Disputed
Records contain confidential proprietary information exempt from disclosure.
(2) Providers
Providers argue that the attestations and affidavits they submitted provide
sufficient evidence for finding their Disputed Records are exempt from disclosure
as confidential proprietary information. Consolidated Providers submitted the
virtually identical affidavits of Sam Feuer (Feuer) and Leibel Gutman (Gutman),
19
managers at several of its facilities. Feuer and Gutman attested, in relevant part, as
follows:
3. The processing of our license applications was done on an expedited
basis under circumstances where the out-going licensees were not
participating in providing documentation or assistance with the process
or in funding operations and there was a need to assure continuity of
resident care and funding for operations.
4. The documents withheld by the Department from our files are not
the kind of documents that these legal entities would customarily
release to the public.
5. The Department . . . advises applicants for licenses and advised us
that the financial and commercial documentation submitted as part of
the license process were deemed confidential proprietary information.
(R.R. at 172a-73a.) Consolidated Providers also submitted the affidavit of David
Gamzeh (Gamzeh), another manager, who attested, in relevant part, that:
6. The documents withheld by the Department contain specific
disclosures regarding a range of confidential and proprietary
information including: (1) the business structure of each participant;
(ii) detailed information about each participant’s owners and key
employees; and (iii) the operational support structure of each facility.
7. The market for nursing home facilities is extremely competitive.
Each of the participants competes with other licensees for residents and
suppliers.
8. Each of the participants has taken steps to maintain the
confidentiality of the disputed documents and has been advised by the
owners of the real estate involved that they object to the production of
any documents to which they are signatories in order to protect the
confidentiality of their terms.
...
20
10. The [D]isputed [Records] contain financial and pricing information
that drives each participant’s competitive business model.
11. The [D]isputed [Records] have independent economic value
because they offer parameters by which competitors could refine their
operations to take away business and business opportunities from
participants.
...
14. The disclosure of the commercial and financial documents of the
legal entities will cause great business and economic harm to each of
them by allowing competitors to gain the fruits of their labors and
negotiations in developing their business models.
15. The information requested in the [D]isputed [Records] will reveal
confidential information about each participant’s business methods,
systems and capabilities, including how each participant allocates
resources and human capital to develop and manage its operations,
which would permit competitors to mimic each participant’s business
model to improve their competitive position.
...
17. Negotiation of such documents for the operation of a health care
facility is a complex process based on multiple variables relating to
balancing the costs of care against available revenues to support those
costs to reach business models that are sustainable and result in quality
care outcomes and compliance with regulatory requirements, which, if
disclosed to competitors would significantly harm each participant’s
competitive edge and permit competitors to seek to undercut their
negotiated agreements with purported better terms and to steal their
business models.
(R.R. at 175a-76a.)
Operations Providers submitted the attestation of Ephram Lahasky (Lahasky),
its manager. Lahasky attested, in relevant part, that:
21
10. The Withheld [Records] were submitted only to D[epartment] and
are not publicly accessible, are not readily available from other sources,
and have not been disclosed to any third parties.
11. The Withheld [Records] establish each Provider’s distinctive
business or structure and organizational plan and rules of governance
that were designed entirely for the purpose of obtaining a license from
D[epartment] for the operation of a nursing facility. The Withheld
[Records] also contain the management structure and operational
authority of the Providers and the information regarding the planned
operations of each facility. The Withheld [Records] contain
assurances, warrantees, and other guarantees between the prior owner
and new owner of the facility involved to ensure the efficient and legal
transfer of operations of each Provider facility.
...
14. In order to protect the trade secrets contained in the Withheld
[Records] as well as the confidential and proprietary nature of the
Withheld [Records], the Withheld [Records] are not made available to
the public. The Withheld [Records] are also not subject to access by
almost all of the individual employees of the Provider. Only
management, executive officers, and members (individuals) with an
ownership interest in the Providers are in possession and have access to
the Withheld [Records]. The Withheld [Records] have only been
shared with our legal counsel and D[epartment] as part of the
Application.
15. The Providers have also employed additional protective measures
to ensure the secrecy and confidentiality of the Withheld [Records].
Each of the Provider’s employees are required to abide by applicable
non-disclosure agreements, contractual confidentiality requirements
and company privacy requirements and expectations to maintain the
confidentiality of the Withheld [Records].
16. The Withheld [Records] contain confidential and proprietary
information including exclusive, fact-specific terms and provisions that
were negotiated by the Providers, in conjunction with their legal
counsel, as part of binding contractual arrangements with other entities
or organization(s) who were party to the specific Agreements.
...
22
25. The information and documentation requested which comprise the
Withheld [Records], if disclosed, would also reveal confidential
information and trade secrets about each Provider’s business methods,
systems, and processes, including how each Provider has devised a
formula or business plan to allocate resources, finances and labor to
develop and manage its operations.
26. Our competitors would then be able to use the information
contained in the Withheld [Records] adversely against the Providers to
their disadvantage and undercut any competitive edge the Providers
have been able to attain in their respective relevant markets.
27. Moreover, if our competitors obtain these “trade secrets” and
proprietary information, our competitors will use [] the information and
copy each Provider’s distinct business model to improve their
competitive position. They can also adjust their operational plans and
business strategies to take business and business opportunities away
from the Providers.
(Id. at 110a-13a.) Additionally, Operations Providers submitted the attestation of
Leon E. LeBreton (LeBreton), the Chief Executive Officer of The Lancaster Group,
LLC, which provides consulting services to long-term care facilities. LeBreton’s
attestation is substantially similar to that of Lahasky.
Based upon the foregoing affidavits and attestations, the OOR found that
Providers met their burden of demonstrating that certain records within the Withheld
Records were exempt from disclosure as confidential proprietary information.
However, the OOR found that Consolidated Providers did not demonstrate that their
leases contain confidential proprietary information, nor did they demonstrate that
the ownership or employee biographical information was kept confidential or that
its release would likely cause competitive harm. The OOR likewise found that
Operations Providers did not demonstrate that release of their Disputed Records,
which include their leases, ownership information, and employee biographical
information, was likely to cause significant competitive harm.
23
We agree with the OOR that Providers have not demonstrated that release of
their Disputed Records would cause competitive harm. Like Golden Living, the
affidavits submitted by Providers do not explain how release of their leases,
ownership or employee biographical information (the Disputed Records) would
create actual competition in the long-term care marketplace. As such, the
attestations and affidavits submitted by Providers are not “specific enough to permit
this Court to ascertain how disclosure of the [Disputed Records] would reflect that
the records [] fall within the proffered exemptions.” Schackner, 124 A.3d at 393.
The attestations and affidavits submitted by Providers merely track the definition of
confidential proprietary information by stating that the Disputed Records were held
confidentially and that their release would cause competitive harm to Providers,
which is “insufficient to demonstrate that the responsive records are exempt from
disclosure.” Muller, 124 A.3d at 765.
Providers argue that the affidavits and attestations they submitted are
substantially similar to the sworn verification submitted by Guardian and, therefore,
the OOR erred by not finding Providers’ leases were exempt in whole or in part, as
it did with Guardian. However, the sworn verification submitted by Guardian is
quite different from the attestations and affidavits submitted by Providers with
respect to leases. Guardian submitted the sworn verification of Brian Rendos
(Rendos), Guardian’s Chief Financial Officer. Rendos attested, in relevant part, that
9. Confidential leasing agreements are also included with Guardian’s
Licensing Submissions, which include confidential information with
respect to minimum rent coverage ratios. The rent coverage ratios are
derived from a formula that compares the tenant’s net operating income
from the facilities (essentially the tenant’s earnings before interest,
taxes, depreciation, amortization, rent, and management fees) to the
base rent for the facilities.
24
(Final Determination at 22-23.) The OOR concluded that the minimum coverage
ratios can be redacted from Guardian’s leasing agreements, but that the leases must
otherwise be provided.
The sworn verification submitted by Guardian identifies a specific ratio,
derived from a specific formula utilized by Guardian to calculate its minimum rent
coverage, which is set forth within the lease agreements. The sworn verification
submitted by Guardian identifies the specific information within the lease
agreements that constitutes confidential proprietary information, the release of
which would cause Guardian to suffer competitive harm. Moreover, only the
minimum coverage ratio was redacted; the entire lease was not exempt. The
attestations and affidavits submitted by Providers do not identify what specific
information in the lease agreements would cause them to suffer competitive harm if
released. Without this, there was no explanation as to how competitors could
affirmatively use the information to the competitive harm of Providers, see Eiseman,
85 A.3d at 1128, or how the release of such information could cause competitive
harm by disclosing a “corporate business strategy,” Colgate-Palmolive Company at
15.
Similarly, within the broad category of ownership and employee biographical
information, Providers did not identify the specific type of information which would
result in competitive harm if released. Unlike an operations agreement detailing an
entity’s business structure, ownership or employee biographical information, by
itself, is not facially proprietary and does not reveal a “corporate business strategy.”
Id. The affidavits and attestations submitted by Providers do not demonstrate how
ownership or employee biographical information could affirmatively be used by
competitors to Providers’ disadvantage. See Eiseman, 85 A.3d at 1128.
25
Accordingly, in the absence of evidence of how release of the Disputed
Records would cause Providers to suffer competitive harm, we must affirm the
OOR’s finding that Providers have not demonstrated that the Disputed Records are
exempt as confidential proprietary information.
C. Whether this Court should remand this matter for the OOR to determine
whether the Disputed Records contain trade secrets.
Petitioners contend that despite asserting before the OOR that the Withheld
Records also contain trade secrets, in addition to confidential proprietary
information, the OOR made no specific findings regarding the trade secret
exemption. Operations Providers argue that the OOR “has previously conferred
‘trade secret’ status on selected portions of contracts that if disclosed would cause
damage to a party’s competitive interest” and that “[b]ased upon the evidence of
record, this [] Court should find that the Withheld [Records], including the lease
agreements, constitute trade secrets and are exempt from disclosure.” (Operations
Providers’ Br. at 24.) Alternatively, Petitioners argue we should remand this matter
for the OOR to make specific findings regarding the trade secret exemption.
Requesters respond that the OOR did consider the trade secret exemption as
the OOR stated “that the [W]ithheld [Records] were not exempt under Section
708(b)(11) [of the RTKL], subsuming both confidential proprietary information and
trade secrets.” (Requesters’ Br. at 41.) Specifically, Requesters argue:
since the test for trade secrets is similar to and contains elements of the
test for confidential proprietary information, including “substantial
secrecy and competitive value,” it follows logically that the OOR
deemed that the Petitioners failed to prove the [W]ithheld [Records]
were exempt under the trade secrets portion of [the] Section 708(b)(11)
exemption.
26
(Id. at 41-42.) Requesters further argue that even if the OOR did not reach the trade
secrets issue, “Petitioners were unable to prove the confidential proprietary
information exemption using what they assert were portions of the trade secret test”
and, therefore, Petitioners “will be similarly unable [to] prove exemption under the
actual trade secret test.” (Id. at 42.)
As stated above, Section 708(b)(11) of the RTKL exempts from disclosure
confidential proprietary information and trade secrets. The term “[t]rade secret” is
defined by Section 102 of the RTKL as follows:
Information, including a formula, drawing, pattern, compilation,
including a customer list, program, device, method, technique or
process that:
(1) derives independent economic value, actual or potential,
from not being generally known to and not being readily
ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
65 P.S. § 67.102. “A ‘trade secret’ must be ‘an actual secret of peculiar importance
to the business and constitute competitive value to the owner.’” Crouthamel v. Dep’t
of Transp., 207 A.3d 432, 438-39 (Pa. Cmwlth. 2019) (quoting Parsons v. Pa.
Higher Educ. Assistance Agency, 910 A.2d 177, 185 (Pa. Cmwlth. 2006)).
Pennsylvania courts have consistently applied the following test to determine
whether information constitutes a trade secret:
(1) the extent to which the information is known outside of the business;
(2) the extent to which the information is known by employees and
others in the business; (3) the extent of measures taken to guard the
secrecy of the information; (4) the value of the information to [an
individual’s] business and to competitors; (5) the amount of effort or
money expended in developing the information; and (6) the ease or
27
difficulty with which the information could be properly acquired or
duplicated by others.
Schackner, 124 A.3d at 392 n.15 (quoting Eiseman, 85 A.3d at 1126.). “The most
critical criteria [of the above test] are ‘substantial secrecy and competitive value.’”
Smith on behalf of Smith Butz, LLC v. Dep’t of Envtl. Prot., 161 A.3d 1049, 1064
(Pa. Cmwlth. 2017) (quoting Eiseman, 85 A.3d at 1126).
We first address Petitioners’ argument that the OOR failed to determine
whether the Withheld Records contained trade secrets. In its Final Determination,
the OOR acknowledged that “[t]he primary exemption raised by each responding
party is Section 708(b)(11) of the RTKL.” (Final Determination at 20.) The OOR
then explained that Section 708(b)(11) exempts from disclosure records that contain
trade secrets or confidential proprietary information. The OOR defined each term
and outlined the requisite test for each exemption. The OOR found that Petitioners
failed to demonstrate that the Withheld Records were exempt from disclosure
because they did not demonstrate that release of the records would cause competitive
harm.
Competitive harm is the second prong in the definition of confidential
proprietary information and the fourth factor in the test to determine whether
information constitutes a trade secret. Competitive harm is thus a factor in
determining both whether a record constitutes confidential proprietary information
or a trade secret. The OOR, rather than engaging in two separate inquiries,
apparently conflated its analysis of whether the Withheld Records contained
confidential proprietary information and trade secrets. Compare 65 P.S. § 67.102
with Schackner, 124 A.3d at 392 n.15. Therefore, the OOR did analyze whether
each Petitioner met its burden of demonstrating that the Withheld Records contained
trade secrets.
28
We now turn to whether the Disputed Records contain trade secrets. As set
forth above, neither Golden Living, nor Providers, demonstrated that release of the
Disputed Records would result in competitive harm. Thus, Petitioners failed to
demonstrate that the Disputed Records were exempt as trade secrets. Further, with
respect to the ownership and employee biographical information specifically, it is
not evident without explanation how this information is “an ‘actual secret of peculiar
importance to the business and constitute[s] competitive value to the owner,’”
Crouthamel, 207 A.3d at 438-39 (citation omitted). In the absence of specific
evidence, we cannot conclude that this information would constitute a trade secret.
Accordingly, for the foregoing reasons, we conclude that the OOR did consider
whether the Disputed Records contain trade secrets and affirm its finding that
Petitioners did not demonstrate that the records were exempt under the trade secret
exemption.
D. Whether our precedent in Eiseman should be reexamined and overturned.
Petitioners argue that the efforts test set forth by this Court in Eiseman is
inconsistent with the legislative intent and the rules of statutory construction and, as
such, “the [e]fforts [t]est is the wrong legal standard to determine the meaning of
‘confidential.’” (Consolidated Providers’ Br. at 13.) Specifically, Consolidated
Providers assert that
[t]he [e]fforts [t]est adds a requirement from the separate [t]rade
[s]ecret definition to the statutory definition [of confidential proprietary
information] contrary to the statutory scheme, rules of statutory
construction, legislative history; State and Federal case[]law, including
that regarding [e]xemption 4 [of the FOIA] and similar provisions of
other States’ open records laws.
29
(Id.) Petitioners assert that the RTKL is based upon the FOIA and, therefore, we
should look to federal interpretation of the term “confidential” under the FOIA to
determine the meaning of the term for purposes of the RTKL. At argument before
this Court, Counsel for Consolidated Providers pointed to the United States Supreme
Court’s decision in Food Marketing Institute v. Argus Leader Media, __ U.S. __,
139 S. Ct. 2356 (2019), as the case from which we should glean our definition of the
term “confidential.” In Food Marketing Institute, the Supreme Court examined what
is referred to as exemption 4 of the FOIA, which exempts records containing “trade
secrets and commercial or financial information obtained from a person and
privileged or confidential” from disclosure. 5 U.S.C. § 552(b)(4). The Supreme
Court concluded that “[a]t least where commercial or financial information is both
customarily and actually treated as private by its owner and provided to the
government under an assurance of privacy, the information is ‘confidential’ within
the meaning of [e]xemption 4.” Id., __ U.S. at __, 139 S. Ct. at 2366.
Requesters respond that we should follow the doctrine of stare decisis and
apply the efforts test set forth in Eiseman as it is still good law. Requesters argue
that exemption 4 of the FOIA is not analogous to Section 708(b)(11) of the RTKL.
Requesters assert that there are significant differences between exemption 4 of the
FOIA and Section 708(b)(11) of the RTKL because the FOIA “lumps trade secrets
and commercial financial information together, using the words ‘privileged or
confidential’ to describe the trade secrets and commercial or financial information.”
(Requesters’ Br. at 27.) Requesters admit that while exemption 4 of the FOIA is
similar to Section 708(b)(11) of the RTKL, they are “not identical” and, therefore,
the “FOIA case[]law on the definition of its exemption is less persuasive to a court
interpreting the RTKL confidential proprietary information exemption.” (Id.) As
30
such, Requesters argue that “the conditions precedent are not met to warrant the
OOR or this Court looking to [the] FOIA and its case[]law as persuasive authority.”
(Id. at 30.)
“Stare decisis binds us to follow decisions of our own [C]ourt until they are
either overruled or compelling reasons persuade us otherwise.” State Farm Mut.
Auto. Ins. v. Dep’t of Ins., 720 A.2d 1071, 1073 (Pa. Cmwlth. 1998). Here, we see
no reason to revisit the efforts test set forth in Eiseman. Although Eiseman was
reversed by the Pennsylvania Supreme Court in Department of Public Welfare v.
Eiseman, 125 A.3d 19 (Pa. 2015), the efforts test was left undisturbed as the Supreme
Court did not reach the issue of whether the records at issue contained confidential
proprietary information. As we explained in Crouthamel,
Eiseman involved an RTKL request for any and all documents that set
forth the rate of payment, including but not limited to capitation rates,
that the Department of Public Welfare (DPW) paid to Medicaid
managed care organizations (MCOs) to provide coverage to recipients
in southeastern Pennsylvania. This request included the rates paid for
dental services pursuant to established dental procedure codes and any
payments made by an MCO for such services. DPW refused to provide
the requested information on the basis that the rates constituted trade
secrets and/or confidential proprietary information that was protected
from disclosure by, inter alia, the [Uniform] Trade Secrets Act[18]
[(Trade Secrets Act)] and section 708(b)(11) of the RTKL. The OOR,
however, granted an appeal by the [r]equesters and directed DPW to
disclose the records concluding that the records constituted financial
records to which the exception in section 708(b)(11) did not apply
(section 708(c) of the RTKL, 65 P.S. § 67.708(c), provides that “[t]he
exceptions set forth in subsection (b) shall not apply to financial
records.”).
On appeal, this Court affirmed the final determination of the OOR
relating to disclosure of capitation rates but reserved the final
determination relating to disclosure of the rates paid by MCOs.
18
Uniform Trade Secrets Act, 12 Pa. C.S. §§ 5301-5308.
31
Regarding the former, we agreed with the OOR that the capitation rates
constituted financial records to which the exception for trade
secrets/confidential proprietary information set forth in section
708(b)(11) of the RTKL did not apply. However, we held that the
Trade Secrets Act could act as “stand-alone statutory basis for
protection,” i.e., a “state law that takes precedence over the provisions
in the RTKL,” including section 708(c). Eiseman, 85 A.3d at 1125.
Nevertheless, we ultimately concluded that the MCOs failed to
establish that such rates constituted trade secrets under the Trade
Secrets Act. Subsequent to our decision, DPW disclosed the capitation
rates to [r]equesters. Regarding the latter, we concluded that the MCO
rates were not financial records because these rates were not disbursed
by an agency, namely DPW, but instead were paid by the MCOs to
providers. Additionally, we held that such rates constituted
confidential proprietary information that was protected from disclosure
by section 708(b)(11) of the RTKL.
The dissenting opinion disagreed with the [m]ajority’s conclusion that
the MCO rates were not financial records simply because they were
disbursed by the MCOs rather than DPW and, consequently, that the
trade secrets/confidential proprietary information exception could
apply to the same. Further, the dissent disagreed with the [m]ajority to
the extent that it concluded that the Trade Secrets Act constituted an
intendent, “stand-alone statutory basis for protection” from disclosure.
Id. at 1138. Our Supreme Court in Eiseman agreed with the dissenting
opinion and reversed this Court’s decision as to the MCO rates.
207 A.3d at 438 n.6. Because our Supreme Court did not reach the issue of whether
the records at issue in Eiseman contained confidential proprietary information, it left
undisturbed our discussion of the efforts test, defining the word “confidential.”
Further, the present matter presents no compelling reason for us to revisit
Eiseman because the efforts test is not outcome determinative here. As stated above,
Section 708(b)(11) of the RTKL exempts from disclosure confidential proprietary
information and trade secrets. In addition to demonstrating that information was
kept confidential, the tests for determining whether a record contains confidential
proprietary information or a trade secret both require us to examine whether release
32
of the information would cause competitive harm. For the reasons set forth above,
Petitioners have not demonstrated competitive harm would result from the release
of the Disputed Records. As such, the efforts Petitioners took to keep the records
confidential is not outcome determinative. Therefore, we see no compelling reason
to revisit Eiseman in this case because Petitioners have not met the other
requirements for demonstrating the Disputed Records contain confidential
proprietary information or trade secrets.
E. Whether the OOR erred by ordering the release of records without
ordering Department to redact the records to protect personal privacy
rights.
Petitioners argue that the OOR’s Final Determination is inconsistent with the
Supreme Court’s decision in Pennsylvania State Education Association v.
Department of Community and Economic Development., 148 A.3d 142 (Pa. 2016)
(PSEA), in that the OOR appears to be ordering the release of records without
ordering Department to first redact the records to protect personal privacy rights.
While Requesters state that “[t]he documents ordered to be released need not be
redacted,” (Requesters’ Br. at 39), Requesters did not make any specific arguments
regarding redactions to protect personal privacy rights. However, at argument
before this Court, Counsel for Requesters indicated that Requesters did not challenge
the redactions made by Department to protect personal interests and does not
challenge similar redactions being made to the records the OOR ordered to be
released.
While records held by a state agency are presumed to be public records, our
Supreme Court in PSEA explained that
nothing in the RTKL suggests that it was ever intended to be used as a
tool to procure personal information about private citizens or, in the
33
worst sense, to be a generator of mailing lists. Public agencies are not
clearinghouses of “bulk” personal information otherwise protected by
constitutional privacy rights. While the goal of the legislature to make
more, rather than less, information available to public scrutiny is
laudable, the constitutional rights of the citizens of this Commonwealth
to be left alone remains a significant countervailing force.
148 A.3d at 158. In PSEA, the Supreme Court once again reaffirmed its longstanding
holding that “[t]he right to informational privacy is guaranteed by Article 1, Section
1 of the Pennsylvania Constitution,[19] and may not be violated unless outweighed by
a public interest favoring disclosure.” Id. The General Assembly codified some
informational privacy rights into the RTKL, exempting from disclosure, in relevant
part,
[t]he following personal identification information:
(A) A record containing all or part of a person’s Social Security
number, driver’s license number, personal financial information,
home, cellular or personal telephone numbers, personal e-mail
addresses, employee number or other confidential personal
identification number[s].
(B) A spouse’s name, marital status or beneficiary or dependent
information.
(C) The home address of a law enforcement officer or judge.
65 P.S. § 67.708(b)(6)(i)(A-C). That being said, “constitutionally protected privacy
interests must be respected even if no provision of the RTKL speaks to protection of
those interests.” PSEA, 148 A.3d at 156. Accordingly, before a government agency,
such as Department, “may release personal information, it must first conduct a
balancing test to determine whether the right of informational privacy outweighs the
19
Article 1, section 1 of the Pennsylvania Constitution provides that “[a]ll men are born
equally free and independent, and have certain inherent and indefeasible rights, among which are
those of enjoying and defending life and liberty, of acquiring, possessing and protecting property
and reputation, and of pursuing their own happiness.” PA. CONST. art. 1, § 1.
34
public’s interest in dissemination.” Reese v. Pennsylvanians for Union Reform, 173
A.3d 1143, 1159 (Pa. 2017). Our Supreme Court recently reaffirmed its holding in
PSEA and the balancing test in City of Harrisburg v. Prince, 219 A.3d 602 (Pa.
2019).
The OOR ordered Department to provide Requesters with the Disputed
Records within 30 days. The OOR’s order that the Withheld Records be disclosed
did not specifically order the records to be redacted to protect personal privacy
rights. However, such redactions are clearly required, as recognized by Requesters’
concession at argument, and the Supreme Court’s recent decision in Prince.
Therefore, we will clarify that Department must release to Requesters the Disputed
Records, consistent with this Opinion, within 30 days with appropriate redactions to
protect personal privacy rights, consistent with the United States and Pennsylvania
Constitutions, the RTKL, Prince, Reese, and PSEA.
F. Whether Item 4 is sufficiently specific under the RTKL.
Providers assert that Item 4 is not sufficiently specific under the RTKL. They
assert that “[t]he 48-day timeframe cannot rescue this otherwise overbroad Request
or make it any less ‘a fishing expedition.’” (Consolidated Providers’ Br. at 55
(citation omitted).) Providers note that the OOR, in finding that Item 4 is sufficiently
specific, relied on this Court’s decision in Baxter. Providers, citing this Court’s
decision in Office of Attorney General v. Philadelphia Inquirer, 127 A.3d 57 (Pa.
Cmwlth. 2015), argue that since Baxter, this Court has used a higher standard for
evaluating whether a RTKL request is sufficiently specific, and that Item 4 does not
meet this higher standard. Consolidated Providers ask this Court to
clarify here that a short timeframe alone can never rescue a [r]equest
that does not on its face specifically establish that the information
35
sought falls with the RTKL’s definition of a [r]ecord and that the
subject matter of the records relates to agency operations; and, that
Baxter cannot be read as an exception to the higher level of specificity
required by Phila[delphia] Inquirer.
(Consolidated Providers’ Br. at 57.)
Requesters respond by asserting that Item 4 is sufficiently specific under
Section 703 of the RTKL. Requesters argue that
[h]ere, there are only four individuals with whom the Request is
concerned, severely limiting the scope of the Request. Similarly
constrained is the extremely short period of time of about a month and
a half. There can be no confusion with this description as to the
identities of the records sought which enables the D[epartment] to
ascertain which records are being requested and produce them. This is
what is required by the appropriate RTKL section . . . [. T]herefore the
Request was sufficiently specific.
(Requesters’ Br. at 45 (citations omitted).)
As stated above, Section 703 of the RTKL provides that “[a] written request
should identify or describe the records with sufficient specificity to enable the
agency to ascertain which records[20] are being requested.” 65 P.S. § 67.703. In
determining whether a request is sufficiently specific, this Court must “examin[e]
the extent to which the request sets forth (1) the subject matter of the request; (2) the
scope of documents sought; and (3) the timeframe for which records are sought.”
Pittsburgh Post-Gazette, 119 A.3d at 1124. “The subject matter of the request must
identify the ‘transaction or activity’ of the agency for which the record is sought.”
Id. at 1125. With respect to the requirement that a request must set forth the scope
20
In relevant part, the RTKL defines “[r]ecord” as “[i]nformation, regardless of physical
form or characteristics, that documents a transaction or activity of an agency and that is created,
received or retained pursuant to law or in connection with a transaction, business or activity of the
agency.” 65 P.S. § 67.102.
36
of documents sought, the request must “identify a discrete group of documents either
by type . . . or recipient.” Bagwell, 155 A.3d at 1143 (quoting Pittsburgh Post-
Gazette, 119 A.3d at 1125). “The fact that a request is burdensome does not deem
it overbroad.” Dep’t of Envtl. Prot. v. Legere, 50 A.3d 260, 265 (Pa. Cmwlth. 2012).
In the present matter, the OOR relied on our decision in Baxter in finding that
Item 4 was sufficiently specific. In Baxter, the requester filed a RTKL request with
a school district requesting “‘[a]ll emails sent and received between Oct[ober] 1 and
Oct[ober] 31’ for email addresses of nine school board members, the school district
superintendent and the general school board address.” 35 A.3d at 1260. The school
district denied the request, concluding that the request was not sufficiently specific.
The requester appealed to the OOR, which concluded that the request was
sufficiently specific because it “identified the type of records sought, the parties
involved and a timeframe, and was sufficiently specific to allow the [s]chool
[d]istrict to identify at least 3,500 responsive records.” Id. at 1261. The school
district appealed the OOR’s final determination to this Court, arguing that the
request was not sufficiently specific under Section 703 of the RTKL because, among
other reasons, it did not “identify the subject matter of the requested emails.” Id. at
1264. We concluded that “the request here is limited in terms of the type of record
requested, the timeframe and the number of email addresses” and that a timeframe
of 30 days “was obviously sufficiently specific because the [s]chool [d]istrict has
identified potential records included within the request.” Id. at 1265. We further
concluded that “unlike in Mollick [v. Township of Worcester, 32 A.3d 859 (Pa.
Cmwlth. 2011)], the request here does not constitute an unreasonable burden, [and]
it is sufficiently specific to comply with Section 703 of the RTKL.” Baxter, 35 A.3d
at 1265. Accordingly, we ordered that “all emails from the requested email
37
accounts” that are connected with “‘a transaction, business or activity’” of the school
district be released. Id.
In contrast, the requester in Mollick sought in relevant part: “(1) all emails
between the [township s]upervisors and the [t]ownship employees regarding any
[t]ownship business and/or activities for the past one and five years; and (2) all
emails between the [s]upervisors and the [t]ownship employees regarding any
[t]ownship business and/or activities for the past one and five years.” 32 A.3d at
871. We held that this request was not sufficiently specific because the “[r]equester
fail[ed] to specify what category or type of [t]ownship business or activity for which
he is seeking information” and “it would place an unreasonable burden on an agency
to examine all its emails for an extended time period without knowing, with
sufficient specificity, what [t]ownship business or activity is related.” Id.
As noted by Providers, after Baxter, this Court issued its decision in
Philadelphia Inquirer. The requester there filed a RTKL request with the
Pennsylvania Office of Attorney General (OAG) “seeking copies of all emails that
were ‘of a personal nature and involve[] pornographic or otherwise inappropriate
material’ to or from the accounts of three former OAG employees from 2009 until
they left the OAG.” Phila. Inquirer, 127 A.3d at 58-59. OAG denied the request,
concluding in relevant part, that the request was not sufficiently specific under
Section 703. The requester appealed to this Court, where “[t]he core issue” was
“whether personal emails are public records within the meaning of the RTKL so that
the agency is compelled to produce them under a RTKL request because they
document the conduct of that agency.” Id. at 60-61. We applied the test set forth in
Pittsburgh Post-Gazette and concluded that the “requested emails are not disclosable
as records under the RTKL merely because they were sent or received using an OAG
38
email address or by virtue of their location on an OAG computer.” Id. at 63. We
explained that “[f]or emails to qualify as records ‘of’ an agency, we only look to see
if the subject-matter of the records relate to the agency’s operations.” Id.
Here, Item 4 requested: “[a] copy of all correspondence sent and received
(including text messages and written memos) by Acting Department Secretary Dr.
Rachel Levine, Communications Director April Hutchenson, Press Secretary Nate
Wardle, and Nursing Home Division Director Susan Williamson, between April 1,
2018 to present [(May 18, 2018)].” (R.R. at 519a (emphasis added).) To determine
whether Item 4 is sufficiently specific under Section 703 of the RTKL, we must
apply the three-part test set forth in Pittsburgh Post-Gazette. First, we must examine
the extent to which Item 4 sets forth a subject matter, meaning the extent to which
Item 4 sets forth a specific transaction or activity upon which the RTKL request is
related. See Pittsburgh Post-Gazette, 119 A.3d at 1124. Item 4 does not set forth a
subject matter as Item 4 does not identify a specific transaction or activity to which
the request is related. Rather, Item 4 requests all correspondence from four named
individuals without regard to a specific subject matter within those communications.
Second, we examine the extent to which Item 4 sets forth the scope of records sought.
Id. Item 4 does not limit the types of correspondence sought as Item 4 requests all
correspondence but does narrow the scope of records by seeking correspondence
sent and received by four specific individuals. Lastly, we examine the extent to
which Item 4 sets forth a timeframe of records sought. Id. Item 4 seeks records for
a specific 48-day timeframe.
Based upon the foregoing, the OOR concluded that while Item 4 lacks a
subject matter, Item 4 “is directly comparable to the request at issue in Baxter in
both scope and timeframe and is therefore sufficiently specific.” (Final
39
Determination at 16.) We disagree. The request in Baxter was much more limited
than Item 4 in the present matter. In Baxter, the requester sought only emails, from
specific official email addresses of local school board members, over a limited
period of time. Here, Item 4 requests all correspondence, not just emails, but
specifically including text messages, and written memos, sent and received by four
named individuals, specifically the Acting Secretary, Communications Director,
Press Secretary, and Nursing Home Division Director of Department, over a 48-day
timeframe.
Baxter does not stand for the proposition that a RTKL request that is limited
to a short timeframe is always, by itself, sufficiently specific. When Baxter is read
in the context of our other opinions, such as Mollick and Philadelphia Inquirer, it is
clear that the timeframe of records sought is only one of the factors we must consider
in determining whether a RTKL request is sufficiently specific. Turning back to
Baxter, we stated that:
Just as in Mollick, the request here is limited in terms of the type of
record requested, the timeframe and the number of email
addresses. Unlike in Mollick, though, the request here was not for
years but for 30 days and the request was obviously sufficiently specific
because the [s]chool [d]istrict has already identified potential records
included within the request. Because, unlike in Mollick, the request
here does not constitute an unreasonable burden, it is sufficiently
specific to comply with Section 703 of the RTKL.
35 A.3d at 1265 (emphasis added). Thus, in Baxter, this Court considered factors
other than time frame of the request when determining whether the request was
sufficiently specific, such as the type of record requested (emails), the scope of forms
of communications involved (specific email addresses), and the fact that the agency
was able to identify potential responsive records. In Mollick, we considered time, in
40
addition to whether the request identified a transaction or business activity upon
which the request was based. In Philadelphia Inquirer, we explained that the subject
matter of requested emails may be necessary to determine whether the emails are an
agency record. Therefore, the fact that a RTKL request is limited to a short
timeframe does not end the analysis of whether the request is sufficiently specific
under Section 703.
Here, in contrast to Baxter and Mollick, where the requests were limited to
emails, Item 4 requests all correspondence through all mediums, electronic and
written, sent and received by four named individuals over a 48-day timeframe. We
are aware that the secretary of a state agency is likely to send and receive more
communications in a 30-day time period than a member of a local school board and
that these communications are likely to contain exempt information. Therefore, as
in Mollick, Item 4 “place[s] an unreasonable burden” on Department to compile all
correspondence sent and received by the highest tier of employees at Department
“without knowing, with sufficient specificity, what [] business or activity the request
is related.” 32 A.3d at 871. Thus, the OOR erred as a matter of law in finding Item
4 sufficiently specific.21
We also note that the breadth of Item 4 gives this Court pause considering the
plethora of constitutionally protected information likely to be contained in the
responsive records to Item 4. While we recognize that “[t]he RTKL does not require
that [] third parties receive notice that a determination affecting their constitutional
rights has been appealed,” a government agency, such as Department, must “be
21
Petitioners ask that in the event we conclude Item 4 is sufficiently specific, we remand
this item to the OOR to remand to Department to make appropriate redactions to the responsive
records due to the breath of records requested by Item 4. Based upon the reasoning set forth above,
we conclude that Item 4 is not sufficiently specific under Section 703 of the RTKL; therefore, the
issue of whether Item 4 should be remanded is moot.
41
attentive to constitutional interests in the RTKL context.” W. Chester Univ. of Pa.
v. Rodriguez, 216 A.3d 503, 510-11 (Pa. Cmwlth. 2019). That being said, for the
reasons set forth above, we conclude that Item 4 is not sufficiently specific.
III. Conclusion
Based upon the foregoing reasons, we conclude that Golden Living and
Providers have not demonstrated that the Disputed Records are exempt from
disclosure under the RTKL. Accordingly, Department is required to release to
Requesters the Disputed Records, consistent with this Opinion, within 30 days of the
date of this Opinion with appropriate redactions, as required by law, to protect
personal privacy rights. As to Item 4, we conclude that this item is not sufficiently
specific under the RTKL and, as such, strike this item as insufficient, meaning, that
responsive records to Item 4 need not be provided to Requesters.
_____________________________________
RENÉE COHN JUBELIRER, Judge
42
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Keystone Nursing and Rehab of :
Reading, LLC, Keystone Nursing and :
Rehab of Lancaster, LLC, Phoenixville
:
Care, LLC, Rosemont Care, LLC, :
Stenton Care, LLC, Harborview :
Rehabilitation and Care Center at :
Doylestown, LLC, Harborview :
Rehabilitation and Care Center at :
Lansdale, LLC, The Meadows at :
Harrisburg for Nursing and :
Rehabilitation, LLC, The Meadows at :
Camp Hill for Nursing and :
Rehabilitation, LLC, The Meadows :
at East Mountain-Barr for Nursing and
:
Rehabilitation, LLC, The Meadows at :
Gettysburg for Nursing and :
Rehabilitation, LLC, The Meadows at :
Pottsville for Nursing and :
Rehabilitation, LLC, The Meadows at :
Sunbury for Nursing and Rehabilitation,
:
LLC, The Meadows at Scranton for :
Nursing and Rehabilitation, LLC, :
The Meadows at Stroud for Nursing and
:
Rehabilitation, LLC, The Meadows at :
Summit for Nursing and Rehabilitation,
:
LLC, The Meadows at Tunkhannock for :
Nursing and Rehabilitation, LLC, and:
The Meadows at West Shore for :
Nursing and Rehabilitation, LLC, :
Petitioners
:
:
v. : No. 1631 C.D. 2018
:
Daniel Simmons-Ritchie and PA Media :
Group, :
Respondents :
Golden Living, :
Petitioner :
:
v. : No. 1692 C.D. 2018
:
Daniel Simmons-Ritchie and The PA :
Media Group, :
Respondents :
Monroeville Operations, LLC, :
Mt. Lebanon Operations, LLC, :
Murrysville Operations, LLC, and :
South Hills Operations, LLC, :
Petitioners :
:
v. : No. 1696 C.D. 2018
:
Daniel Simmons-Ritchie and :
PA Media Group, :
Respondents :
ORDER
NOW, January 3, 2020, the Final Determination of the Pennsylvania Office
of Open Records dated December 3, 2018, is AFFIRMED in part and REVERSED
in part. The Department of Health is hereby ORDERED to release the Disputed
Records consistent with this Court’s Opinion in the above-captioned matters.
_____________________________________
RENÉE COHN JUBELIRER, Judge