# In the Matter of A. Trethewey v. Downingtown Area S.D.

> Commonwealth Court of Pennsylvania · February 25, 2025

URL: https://www.frixlaw.com/law-library/cases/10805572

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** February 25, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Leavitt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In the Matter of Ann Trethewey, :
Appellant :
:
v. : No. 138 C.D. 2024
: Argued: December 9, 2024
Downingtown Area School :
District :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION
BY SENIOR JUDGE LEAVITT FILED: February 25, 2025

Ann Trethewey (Requester) appeals an order of the Chester County
Court of Common Pleas (trial court), which affirmed the final determination of the
Office of Open Records (OOR) that the records sought from the Downingtown Area
School District (School District) were exempt from disclosure under the Right-to-
Know Law (RTKL).1 The OOR determined that the Diversity, Equity, and Inclusion
(DEI) training materials sought by Requester were exempt as trade secret and
confidential proprietary information. On appeal, Requester argues that the trial court
erred because the records in question are routinely shared with School District
employees. As such, they are not trade secret, confidential, or proprietary
information. For the reasons to follow, we reverse, in part, and vacate, in part, the
trial court’s order and remand for further proceedings.
Background
On January 3, 2023, Requester submitted a RTKL request to the School
District for the following records:

1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
1. Copy of all documents and materials (paper or electronic)
and all presentations used by the [DEI] program director and DEI
staff that were used to instruct or lead any training or programs
to any staff, teacher, counselor or student in the [] School District.
2. Copy of any Copyright information on materials used
(paper or electronic).
[3.] Copy of all documents and materials (paper or electronic)
and all presentations that were used to instruct or lead any
cultural awareness, courageous conversations, unconscious bias
and cultural proficiency training or programs to any staff,
teacher, counselor or student in the [] School District. Note: As
per District Policy 801 (Public Records), a fee may be charged
to the individual requesting a copy of District public records.

Reproduced Record at 1 (R.R. __).2
On January 5, 2023, the School District denied the request, stating:
1. Your request is denied. Section 708(b)(11) of the RTKL[3]
exempts from disclosure “[a] record that constitutes or reveals a
trade secret of [sic] confidential proprietary information.”
Confidential proprietary information is defined as “[c]ommercial
or financial information received by an agency: (1) which is
privileged or confidential; (2) the disclosure of which would
cause substantial harm to the competitive position of the person
that submitted the information.” See also In The Matter of
Theresa Darr, Requester v. Pennsylvania Higher Education
Assistance Agency, Respondent, Docket No: AP 2019-1494. The
information requested in this paragraph is a trade secret and
would cause substantial harm to the competitive position of the
person that created and submitted this information. See
additional attachments.

2
Pennsylvania Rule of Appellate Procedure 2173 requires that the reproduced record be numbered
in Arabic figures followed by a small “a.” Pa.R.A.P. 2173. The reproduced record does not comply
with Rule 2173 because it only utilizes Arabic figures. For convenience, we cite to each page as
paginated by Requester.
3
65 P.S. §67.708(b)(11).
2
R.R. 2. The response included a certification from the School District’s DEI
Director, Justin Brown (Brown), which stated, in pertinent part, as follows:
2. I created the materials requested above, prior to my
employment by the [School District] and prior to my
appointment as [DEI Director] – they were not created using the
resources of the [School District], are protected by copyright and
are my personal proprietary training materials.
3. These materials are not made available to the public, or
other organization (as that would substantially interfere with the
confidential commercial nature of them)[,] and I ensure the
confidentiality of these materials using the following best
practices and safeguards:
a. The materials are password protected and the
credentials are maintained in confidence;
b. No person outside of the [School District] is
provided with or permitted to observe these materials;
c. The training that was conducted was undertaken
solely within the [School District] and limited to
employees thereof – it is not shared with any third parties
outside of [the School District], such as external vendors,
regulators, other [school districts], the public or any other
outside entity[;]
d. The [School District] employees are notified that the
training is confidential and that to the extent the training is
interactive, the [School District] employees are assured
that their participation will not be released or otherwise
disclosed;
e. [School District] employees understood that their
answers were to be kept confidential from the public; and
were only disclosed to select [School District] employees
to the extent necessary to evaluate the training[; and]
f. Disclosing the training materials would put me and
the [School District] at a marketing disadvantage in
relation to other school districts or other educational
services as the training sought to be disclosed is unique,
not available to the public or competing education

3
serviced [sic] and there is no other similar [sic] from any
other districts such as this one.

R.R. 4-5 (emphasis added).
On January 26, 2023, Requester appealed to the OOR. The OOR
invited the parties to supplement the record. The School District submitted a
position statement, reiterating its reasons for denial, along with a supplemental
attestation from Brown. Therein, Brown stated, in relevant part, as follows:
3. I have been conducting trainings since 2008. I have held
my Copyright since 2010 (almost 11 years prior to working with
the [School] District), and established a [limited liability
company] on April 1, 2019. I have a Masters in Student Affairs
and am nationally trained by Greendot, NCBI, NCORE, Office
of Civil Rights and the Center for Conflict Resolution.
....
5. I use these materials outside the classroom as Creator and
President of D.A.P. (Diversityawarenessprogram.com) which
conducts team building workshops and open discussion sessions
dealing with diversity and cultural awareness.
6. I plan, direct, coordinate, [and] assist as the internal
consultant to the major businesses, superintendents, principals[,]
and executive leadership team[s] regarding diversity, equity, and
inclusion matters.
7. I own and operate a company which has an online portal
for certification and training and created and assisted with 10+
“Diversity Audits” for institutions of higher learning.
8. I am President and [Chief Executive Officer] of Onward
and Upward, that provides prospective college students with the
skills and knowledge to be successful in institutions of higher
learning. I have held my Copyright since 2017 (almost 4 years
prior to working with the [School] District). The website:
https://onwardupward6.wixsite.com/program.
9. My materials are not distributed as part of the training
program. If they were other trainers can steal that material and
claim it as their own and will not use my training portal.

4
10. [] [The training materials] are of value to me because
outside entities decide who they will pull in to do training. If the
materials were made [sic] to the public, it would significantly
impact my business and future endeavors.

R.R. 7-8 (emphasis added).
The OOR denied Requester’s appeal. It found that the affidavits
established that the requested records constituted trade secret and confidential
proprietary information exempted from disclosure. It reasoned as follows. If the
materials were made public, this would place Brown and the School District at a
“market disadvantage” because this training program is unique. OOR
Determination, 3/24/2023, at 6; R.R. 14 (quoting Brown Certification, ¶3(f)). Brown
created the materials prior to becoming a School District employee, and their
disclosure would allow a competitor to use them with other school districts. OOR
Determination at 6-7; R.R. 14-15. Finally, although the training materials are shared
with School District employees, Brown established safeguards to prevent their
unintentional disclosure to persons outside the School District. Finally, the OOR
had previously determined that the very materials sought by Requester were exempt
from disclosure. See Grady v. Downingtown Area School District, OOR Dkt. No.
AP 2022-2026, 2022 WL 17100457 (filed November 18, 2022) (School District
properly withheld Brown’s training materials as exempt as trade secret or
confidential proprietary information).
Requester appealed the OOR’s determination, and the trial court
affirmed. It concluded that Brown’s certification and supplemental attestation
established that the training materials in the possession of the School District were
confidential and had independent economic value to Brown. Their disclosure would
harm Brown’s competitive position in the education industry.

5
Nevertheless, the trial court agreed with Requester that the School
District had not fully responded to her request. The trial court observed that
Requester presented her request in three numbered paragraphs for three categories
of records. However, the School District answered paragraph one and addressed
only those materials created by Brown. The School District did not respond to
paragraphs two and three of the request or search for records beyond those created
by Brown. Accordingly, the trial court ordered the School District to conduct a good
faith search for all records beyond those created by Brown.
Requester then appealed the trial court’s order.
Appeal
On appeal,4 Requester argues that the trial court erred in holding that
the DEI training materials fell within the RTKL’s limited exemption for trade secret
or confidential proprietary information. Because Brown shared these materials with
School District employees in the scope of his employment, they are not secret,
confidential, or proprietary. Further, the language in the affidavits was too general
and conclusory to establish an exemption from the School District’s duty to disclose
the records in question.
Applicable Law
The RTKL provides that “[u]nless otherwise provided by law, a public
record . . . shall be accessible for inspection and duplication in accordance with [the
RTKL].” Section 701(a) of the RTKL, 65 P.S. §67.701(a). The RTKL specifically
protects “[a] record that constitutes or reveals a trade secret or confidential

4
This Court’s review of the trial court’s decision determines “whether findings of fact are
supported by [substantial] evidence or whether the trial court committed an error of law[] or an
abuse of discretion in reaching its decision.” In re Right to Know Law Request Served on Venango
County’s Tourism Promotion Agency and Lead Economic Development Agency, 83 A.3d 1101,
1104 n.3 (Pa. Cmwlth. 2014) (quotation omitted). Our review of legal issues is plenary. Id.
6
proprietary information” from disclosure. Section 708(b)(11) of the RTKL, 65 P.S.
§67.708(b)(11). Section 102 of the RTKL defines “trade secret” as follows:
Information, including a formula, drawing, pattern, compilation,
including a customer list, program, device, method, technique or
process that:
(1) derives 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.
The term includes data processing software obtained by an
agency under a licensing agreement prohibiting disclosure.

65 P.S. §67.102 (emphasis added). Essentially, the RTKL employs the definition of
“trade secret” found in the Uniform Trade Secrets Act, 12 Pa. C.S. §5302.5
Case law precedent under the RTKL has established the factors for
determining 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 the business and to competitors; (5)
the amount of effort or money expended in developing the information; and (6) the
ease or difficulty with which the information could be properly acquired or
duplicated by others. See West Chester University of Pennsylvania v. Schackner,
124 A.3d 382, 392 n.15 (Pa. Cmwlth. 2015) (Schackner). A trade secret requires

5
The Uniform Law Comment explains that the policy behind the Uniform Trade Secrets Act is
“the maintenance of standards of commercial ethics.” 12 Pa. C.S. §5302, Uniform Law Comment.
It expanded upon the common law definition of trade secrets, explaining, for example, that
“expensive research which proves that a certain process will not work could be of great value to a
competitor.” Id. (emphasis in original). Information found in trade journals, reference books, or
published materials cannot constitute a trade secret.
7
“substantial secrecy and competitive value to the owner.” Id. A trade secret
determination is a fact-specific inquiry. Mission Pennsylvania, LLC v. McKelvey,
212 A.3d 119, 136 (Pa. Cmwlth. 2019), aff’d in part and vacated in part, 255 A.3d
385 (Pa. 2021).
The RTKL defines “confidential proprietary information” as
“[c]ommercial 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.”
Section 102 of the RTKL, 65 P.S. §67.102. Critical to the confidential inquiry is
what efforts have been made by the owner to keep the information confidential. See
Crouthamel v. Department of Transportation, 207 A.3d 432, 441 (Pa. Cmwlth.
2019). To determine “substantial harm to the competitive position,” the agency must
show the existence of “(1) actual competition in the relevant market; and[] (2) a
likelihood of substantial injury if the information [was] released.” Id. “Competitive
harm” focuses on harm caused by the use of “proprietary information by
competitors.” Id.
Exceptions to the disclosure of public records must be narrowly
construed. See Pennsylvania State Police v. Grove, 161 A.3d 877, 893 (Pa. 2017).
The party asserting the exemption bears the burden of proving that the record is
exempt by a preponderance of the evidence. Section 708(a) of the RTKL, 65 P.S.
§67.708(a).
The agency may present evidence on its claim for an exemption by
affidavit or attestation. Absent evidence of bad faith, the veracity of the affidavits
should not be questioned. Office of Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa.
Cmwlth. 2013). However, “conclusory affidavits, standing alone,” do not suffice.
Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1130 (Pa.
8
Cmwlth. 2017). Stated otherwise, an affidavit that merely tracks the language of the
statutory exemption will not establish that a requested record is exempt from
disclosure. Pennsylvania Department of Health v. Mahon, 283 A.3d 929, 935 (Pa.
Cmwlth. 2022).
With these principles in mind, we address Requester’s appeal.
I. Trade Secret
Requester argues that the School District did not meet its burden of
establishing that the requested records meet the trade secret exemption. The DEI
training materials were created by a School District employee, distributed to School
District employees, “and blessed as an official training by [the School District].”
Requester Brief at 13. Records related to an agency activity are public and must be
disclosed, and there is no question that the DEI training materials were used in a
School District activity. Id. at 11.
Further, Requester notes that, in the affidavits, Brown stated that the
withheld records are “protected by copyright and, simultaneously, privileged and
confidential trade secrets.” Id. at 14. Requester argues that they cannot be both.
Copyright laws do not preserve trade secrets. Rather, copyrighted materials cannot
be used or duplicated without permission of the author; this is the limit of their
protection.
Requester states that she seeks only records created, maintained, and
transmitted in the course of Brown’s work as a public official. She does not seek
records created by Brown in his personal or commercial capacity and used outside
his employment with the School District.
Finally, Requester argues that Brown’s certification and supplemental
attestation were inadequate to establish a trade secret exemption from disclosure. In
any event, Brown’s full-time employment with the School District belies the claim
9
he is engaged in a “trade” with respect to materials used only within the School
District. Brown’s affidavit stated that “no person outside [the School District] is
provided with or permitted to observe these materials[.]” Requester Brief at 12
(quoting Brown Certification, ¶3(b); R.R. 4). Information shared with an untold
number of School District employees cannot be secret and is not exempt from
disclosure.
For its part, the School District does not address trade secrets in its brief,
except in a passing way. The School District focuses on the confidential and
proprietary nature of the requested materials. Brown’s certification established that
the training materials are not available to the public and that Brown took steps to
limit their reproduction by School District employees. The School District
emphasizes that the statements in Brown’s certification and supplemental attestation
were uncontradicted. In any case, the requested training materials already have
previously been determined to be records that constitute trade secrets or confidential
proprietary information. See Grady, OOR Dkt. No. AP 2022-2026, 2022 WL
17100457, at *4.
The RTKL protects trade secrets from disclosure by a government
agency. It states:
(b) Exceptions.--Except as provided in subsections (c) and (d),
the following are exempt from access by a requester under this
act:
....
(11) A record that constitutes or reveals a trade secret or
confidential proprietary information.

Section 708(b)(11) of the RTKL, 65 P.S. §67.708(b)(11). The terms “trade secret”
and “confidential proprietary information” are separately defined and, thus, must be

10
separately analyzed. Pennsylvania Public Utility Commission v. Friedman, 293
A.3d 803, 826 (Pa. Cmwlth. 2023).
A trade secret may consist of a technical drawing, formula, pattern,
device, or compilation of information that is used in an individual’s business and
that gives the individual an advantage over competitors who do not know it or use
it. 12 Pa. C.S. §5302. A classic trade secret is the Coca Cola formula, which has
been zealously protected for generations against its acquisition by any other soda
manufacturer. Customer lists used to sell household articles door-to-door, a fudge
recipe, and a company’s pricing formulas can constitute trade secrets.6 A trade secret
does not include a worker’s aptitude, skill, dexterity, manual and mental ability, and
other knowledge the worker obtains in the course of his employment. Christopher
M’s Hand Poured Fudge, Inc., 699 A.2d at 1275.
A patent is not a trade secret. Felmee, 351 A.2d at 278 (“the very nature
of the patent publication [has] been consistently held to work a destruction of any
trade secret disclosed therein”); see generally Mallet and Company Inc. v. Lacayo,
16 F.4th 364, 383 (3d Cir. 2021) (information provided within or directly
ascertainable from a patent cannot constitute a trade secret). The patent allows the
owner to license its patented information for a fee. In time, however, the patent
enters the public domain and can be used by anyone.
The same is true for copyrighted works. An applicant applying for a
copyright is required to submit a copy of the material to the Copyright Office, which
is available for public inspection in the Library of Congress. 17 U.S.C. §§407-408,

6
Felmee v. Lockett, 351 A.2d 273 (Pa. 1976); Crum v. Bridgestone/Firestone North American Tire,
LLC, 907 A.2d 578 (Pa. Super. 2006); Christopher M’s Hand Poured Fudge, Inc. v. Hennon, 699
A.2d 1272 (Pa. Super. 1997); Morgan’s Home Equipment Corp. v. Martucci, 136 A.2d 838 (Pa.
1957); AmQuip Crane Rental, LLC v. Crane & Rig Services, LLC, 199 A.3d 904 (Pa. Super. 2018);
Hyman Companies, Inc. v. Brozost, 119 F. Supp. 2d 499 (E.D. Pa. 2000).
11
705. This is consistent with the fundamental purpose of the grant of the copyright
which is “to promote the progress of science and useful arts.” U.S. CONST. art. I, §8.
It is not to reward the labor of authors. Feist Publications, Inc. v. Rural Telephone
Service Company, Inc., 499 U.S. 340, 349 (1991). “To this end, copyright assures
authors the right to their original expression, but encourages others to build freely
upon the ideas and information conveyed by a work.” Id. at 349-50.
To claim the trade secret exemption from disclosure under the RTKL,
the record must be an actual secret of peculiar importance to the business. Parsons
v. Pennsylvania Higher Education Assistance Agency, 910 A.2d 177, 185 (Pa.
Cmwlth. 2006). The records must be genuine secrets, not tricks of the trade.
Macbeth-Evans Glass Co. v. Schnelbach, 86 A. 688, 691 (Pa. 1913). Central to a
trade secret is that its value is derived from its very secrecy. Department of Public
Welfare v. Eiseman, 85 A.3d 1117, 1126 (Pa. Cmwlth. 2014).
Brown stated that the requested materials are his own; not made
available to the public; and have been safeguarded to maintain their confidentiality.
Brown Certification, ¶3(c); R.R. 6. He created the materials prior to his employment
with the School District and uses them in his personal business, not just in his work
for the School District. Brown Supplemental Attestation, ¶5; R.R. 7. Only School
District employees see the materials and under his supervision.
In his supplemental attestation, Brown stated that he uses the “materials
outside the classroom as Creator and President of D.A.P.,” which offers team
building and open discussion sessions relating to diversity and cultural awareness.
Brown Supplemental Attestation, ¶5; R.R. 7. Again, these “materials are not
distributed as part of the training program.” Brown Supplemental Attestation, ¶9;
R.R. 8. Should a competitor obtain them, his training portal would lose value. Id.

12
These affidavits may establish that the training materials have
proprietary value to Brown; that DEI training is a competitive industry; and that the
training materials are protected from duplication. However, these affidavits do not
explain how these training materials derive their value “from not being generally
known to, and not being generally ascertainable by proper means by other persons.”
Department of Public Welfare v. Eiseman, 125 A.3d 19, 23 (Pa. 2015) (quoting 12
Pa. C.S. §5302). To the contrary, the training materials derive their value from being
shared with School District employees and anyone who participates in D.A.P.’s
training program.
This point is illustrated in Stromback v. New Line Cinema, 384 F.3d
283 (6th Cir. 2004). This case concerned a screenplay, which was found to have no
economic value until “exploited publicly through broad dissemination.” Id. at 305.
As such, the screenplay was not a trade secret. Likewise, in Mainardi v. Prudential
Insurance Company of America, No. 08-3605, 2009 WL 229757, at *1, *9 (E.D. Pa.
January 30, 2009), the federal district court held that copyrighted audiovisual
materials, sold to “independent insurance agents, financial and insurance marketing
firms, financial planners[,] and major insurance companies” did not constitute trade
secret information.7 The economic benefit was derived from the sale of the product.
By active marketing, the product became “readily ascertainable by proper means
by[] other persons who [could] obtain economic value from [the] disclosure or use,”
and, thus, was not the type of information that is protected as a trade secret. Id. at
*9. Similar to a poem, screenplay, or educational software, Brown’s training

7
The plaintiffs developed software to “educate and emotionally motivate customers via
audiovisual vignettes designed to demonstrate how lack of planning could put the potential
customers’ business and personal finances at risk.” Mainardi, 2009 WL 229757, at *1.
13
materials only have economic value when shared with other persons. As such, they
do not constitute trade secret information.
Further, Brown’s training materials are not in the nature of a “formula,
drawing, pattern, [or] compilation including a customer list, program, device,
method, technique or process.” See 12 Pa. C.S. §5302. Brown’s attestation and
supplemental certification conflate the concepts of trade secret and product. A trade
secret is essential to the product, but it is not the product itself. For example, Coca
Cola uses a secret formula to create its product known as “Coke.” Brown did not
identify a “formula” or “algorithm” that was the secret to the creation of his product,
which is DEI training material. Because that product is widely shared to School
District employees, it is not secret.
In sum, the School District’s certification and supplemental attestation
did not establish that the information requested by Requester constituted trade secret
information exempt from disclosure under Section 708(b)(11) of the RTKL.
Accordingly, we reverse the trial court’s decision that the training materials were
exempt from disclosure as trade secret information.
II. Confidential Proprietary Information
Next, Requester argues that the School District did not establish that
the requested records constitute confidential proprietary information. There is no
evidence that disclosure of these materials would cause Brown substantial
competitive harm. Because Brown did not identify his competitors, this is fatal to
his claim that the materials are proprietary. See Pennsylvania Department of
Revenue v. Flemming (Pa. Cmwlth., No. 2318 C.D. 2014, filed August 21, 2015)
(unreported). Brown’s claim of harm in his supplemental attestation contradicts his
statement in the certification that “the materials are not made available to the public
or other organization.” Requester Brief at 20 (quoting Brown Supplemental
14
Attestation, ¶3; R.R. 6). Requester directs this Court to its decision in Giurintano v.
Department of General Services, 20 A.3d 613 (Pa. Cmwlth. 2011) (names of
interpreters providing translation services are protected against disclosure as
confidential proprietary information). In that case, the attestation included precise
factual details, such as a description of the information claimed to be confidential
and proprietary and the difficulty of its acquisition. Requester Brief at 22. By
contrast, Brown’s certification and attestation were conclusory.
The School District responds that it met its burden. Its certification and
attestation established that there is competition in the field of DEI training and that
disclosure of Brown’s training materials will harm his ability to compete. They need
to be kept confidential to protect against their use by other school districts and by
other educational agencies.
The School District cites In the Matter of Theresa Darr, OOR Dkt. No.
AP 2019-1494, 2019 WL 6050151 (filed November 7, 2019). In that case, the
requester sought a copy of the Pennsylvania Higher Education Assistance Agency’s
(PHEAA) employee manual on debt collection procedures. PHEAA denied the
request pursuant to Section 708(b)(11) of the RTKL, and the OOR affirmed. The
manual was maintained strictly within PHEAA and available only to employees in
the Loan Asset Maintenance division. Each page of the manual was marked
“Proprietary & Confidential.” Further, the attestation described the type of
information contained in the manual, for which PHEAA expended significant effort
and cost to develop. Disclosure would allow PHEAA’s competitors in the federal
student loan guaranty market to learn PHEAA’s collection methodology. In fact,
PHEAA was in the process of bidding on contracts with higher education loan
authorities in Georgia and Missouri to handle their collection efforts.

15
Finally, the School District notes, again, that the records sought by
Requester are the same records that the OOR has already held to constitute
confidential proprietary information. See Grady, OOR Dkt. No. AP 2022-2026,
2022 WL 17100457.
Confidential proprietary information has a commercial or financial
value; is privileged or confidential; and is key to the competitive position of the
person that gave the information to the agency. Section 102 of the RTKL, 65 P.S.
§67.102. Confidentiality requires an effort by the parties to “maintain their secrecy.”
Eiseman, 85 A.3d at 1128.
The burden is on the agency receiving the record request to establish an
exemption under Section 708(b) of the RTKL. This Court has explained the burden
as follows:
Such a burden is especially problematic where Section
708(b)(11) of the RTKL is at issue because the sought after
information likely relates to private entities, [which] may or may
not be aware of the pending action in light of the fact that neither
the requester, the agency, nor [the] OOR have a duty under the
RTKL to provide notice to a third party whose interests may be
implicated by a RTKL request. Releasing the potentially
confidential information of a private entity based solely on an
agency’s failure to adequately defend a RTKL request could have
serious due process implications. For this reason, [the] OOR
should take all necessary precautions, such as conducting a
hearing or performing in camera review, before providing access
to information which is claimed to reveal “confidential
proprietary information” under Section 708(b)(11) of the RTKL.

Office of Governor v. Bari, 20 A.3d 634, 648 (Pa. Cmwlth. 2011).
Examples of confidential proprietary information include a company’s
business methods; production quantities; and a list of interpreters able to provide

16
telephone translation services.8 Confidential proprietary information does not
include the number of restaurant liquor licenses eligible for auction in each county
or a pizza company’s corporate newspaper.9
Brown attested to his considerable experience that he used to develop
his training sessions on diversity and cultural awareness. Brown has held a copyright
since 2010 for a 54-page text on “D.A.P.,” or “Diversity Awareness Program.”10
Brown Supplemental Attestation, ¶¶3, 5; R.R. 7. Brown attested to the
competitiveness of the educational programs industry and stated he has developed a
training program unlike those used by other school districts.
However, by obtaining a copyright, Brown disclosed the material in the
application process (material that eventually becomes public) in exchange for certain
economic protections relative to his work. Ali v. Philadelphia City Planning
Commission, 125 A.3d 92, 100 (Pa. Cmwlth. 2015). Under the Copyright Act, the
rights of the copyright holder include the following:
Subject to sections 107 through 122, the owner of copyright
under this title has the exclusive rights to do and to authorize any
of the following:
(1) to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;

8
See Smith on behalf of Smith Butz, LLC v. Pennsylvania Department of Environmental Protection,
161 A.3d 1049, 1065-66 (Pa. Cmwlth. 2017); Crouthamel, 207 A.3d at 441; Giurintano, 20 A.3d
at 616-17.
9
See Pennsylvania Liquor Control Board v. Burns (Pa. Cmwlth., No. 1159 C.D. 2019, filed June
16, 2020) (unreported); Chambers v. Domino’s Pizza Inc., 1 Pa. D.&C. 4th 20 (1988).
10
Available at: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=5&ti=1,5&Search%5FArg=
D%2EA%2EP%2E&Search%5FCode=TALL&CNT=25&PID=OA_fFKcmul4MVYYESquzAb
M4g5DL&SEQ=20250224090452&SID=1 (last visited February 25, 2025).
17
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending[.]

17 U.S.C. §106(1)-(3). The Copyright Act, however, is not a federal law that
exempts materials from disclosure under the RTKL. Ali, 125 A.3d at 101. There is
a conflict between the Copyright Act and the RTKL with respect to access (i.e.,
duplication) where (1) the public record in question is protected under a copyright
held by a third party, and (2) the local agency does not have the consent of the
copyright owner to duplicate the public record in response to a RTKL request. Id. at
105. The Copyright Act limits access to a public record only with respect to
duplication, not inspection. Thus, a copyrighted public record must still be made
available for inspection under the RTKL. Id. Accordingly, any copyrighted material
used by Brown and DEI staff to instruct or lead any training or programs to the
School District staff must be made available to Requester for inspection.11
Regarding any non-copyrighted training materials, Brown’s affidavits
do not provide meaningful factual information. It cannot be ascertained whether the
training materials are videos, PowerPoints, outlines, lesson plans, or something else.
The affidavits do not explain how this information has value to the School District’s
competitors; the identity of competitors in the DEI training market; and the
likelihood of substantial injury if the information was released. In short, the
affidavits are insufficient to determine whether the exemption for confidential
proprietary information applies to the requested records.

11
For any records produced by the School District, it may charge the costs for duplication and
postage. See Section 1307 of the RTKL, 65 P.S. §67.1307.
18
The School District’s reliance on In the Matter of Theresa Darr is
misplaced.12 PHEAA is quite different from the School District. PHEAA was
created by statute, but it is funded by its operations, not by appropriations from the
legislature. It competes with banks. Further, PHEAA took extraordinary steps to
keep its manual on default loan collections confidential and shared it only with a
select number of employees. The PHEAA holding does not support the School
District, as it believes, but, rather, Requester.
In sum, Brown’s certification and supplemental attestation do not
provide factual detail sufficient to establish that the exemption for confidential and
proprietary information applies to the requested training materials. The affidavits
do not even describe the training materials. For this reason, we cannot affirm the
trial court’s conclusion the training records are confidential proprietary information.
Accordingly, we vacate this portion of the trial court’s order and remand this matter
for an evidentiary hearing.
Conclusion
For all these reasons, we reverse that part of the trial court’s order
holding that the training materials constitute trade secret information, and we vacate
that part of the trial court’s order holding that the training materials are exempt as
confidential proprietary information. Accordingly, we remand the matter to the trial
court to conduct a hearing on the issue of whether the “confidential proprietary

12
The School District’s citation to a previous determination of the OOR finding the training
materials to contain confidential proprietary information is not binding on this Court. Our Court
has held that decisions of administrative boards or tribunals have no precedential value on this
Court. Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40, 44 (Pa. Cmwlth.
2012).

19
information” exemption contained in Section 708(b)(11) of the RTKL applies to the
DEI training materials.

____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita

20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In the Matter of Ann Trethewey, :
Appellant :
:
v. : No. 138 C.D. 2024
:
Downingtown Area School :
District :

ORDER

AND NOW, this 25th day of February, 2025, the order of the Chester
County Court of Common Pleas is REVERSED, in part, and VACATED, in part.
The matter is remanded to the Chester County Court of Common Pleas for further
proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.

____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10805572. Public record. Not legal advice.