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

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