PharmaCann Penn LLC v. C. Ullery & Calkins Media ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PharmaCann Penn LLC, :
:
Petitioner :
:
v. : No. 172 C.D. 2018
: Submitted: December 28, 2018
Christopher Ullery and Calkins :
Media, :
:
Respondents :
AES Compassionate Care, LLC, :
:
Petitioner :
:
v. : No. 173 C.D. 2018
: Submitted: December 28, 2018
Christopher Ullery and Calkins Media, :
:
Respondents :
Chamounix Ventures, LLC, :
:
Petitioner :
:
v. : No. 174 C.D. 2018
: Submitted: December 28, 2018
Christopher Ullery and Calkins Media, :
:
Respondents :
Bay LLC, :
:
Petitioner :
:
v. : No. 183 C.D. 2018
: Submitted: December 28, 2018
Christopher Ullery and Calkins Media, :
:
Respondents :
SMPB Retail, LLC, :
:
Petitioner :
:
v. : No. 184 C.D. 2018
: Submitted: December 28, 2018
Christopher Ullery and Calkins Media, :
:
:
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: October 16, 2019
PharmaCann Penn LLC (PharmaCann), AES Compassionate Care,
LLC (AES), Chamounix Ventures, LLC (Chamounix), Bay LLC (Bay), and SMPB
Retail, LLC (SMPB) (collectively, Petitioners) petition for review of the Final
Determinations of the Office of Open Records (OOR) granting in part, and denying
in part, the appeals of Christopher Ullery and Calkins Media (collectively,
Requesters) from the decisions of the Department of Health (DOH) denying their
requests under the Right-to-Know Law (RTKL)1 for copies of Petitioners’
applications for dispensary licenses for medical marijuana submitted to DOH
pursuant to the Medical Marijuana Act (Act).2 We vacate and remand.
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2
Act of April 17, 2016, P.L. 84, 35 P.S. §§10231.101-10231.2110.
I.
As a preliminary matter, to provide background to the case sub judice,
this Court has recently explained:
The General Assembly enacted the Act, effective
as of May 17, 2016, to establish a framework for [the]
legalization of medical marijuana in the Commonwealth.
DOH is the Commonwealth agency responsible for
administering the Act, including promulgating temporary
regulations necessary to perform this function. Section
301 of the Act, 35 P.S. §10231.301; Section 1107 of the
Act, 35 P.S. §10231.1107. Attendant to this authority,
DOH promulgated temporary regulations and established
an application process for businesses seeking permission
to operate as medical marijuana organizations. See 28
Pa. Code §§1131.1-1191.33.
Section 302(b) of the Act (relating to public
disclosure) provides that applications “are public records
and shall be subject to the [RTKL].” 35 P.S.
§10231.302(b). DOH’s temporary regulation as to the
same subject mirrors the Act by listing applications as
“public records . . . subject to disclosure under the
[RTKL] . . . .” 28 Pa. Code §1141.22 (Temporary
Regulation). However, the Temporary Regulation states:
“the following information is considered confidential, is
not subject to the [RTKL], and will not otherwise be
released . . . unless pursuant to court order . . .
information regarding the physical features of, and
security measures installed in, a facility.” 28 Pa. Code
§1141.22(b)(9) (emphasis added).
Further, in the application instructions, DOH
advised all applicants to submit redacted and unredacted
copies of their applications with the understanding that
redacted copies would be posted on its public website.
Although the instructions state all submissions would be
subject to disclosure under the RTKL, they also quote the
Temporary Regulation which extended protection to
“information regarding physical features of and security
measures installed in a facility, information in the
2
electronic tracking system” and other information subject
to protection by the RTKL or as proprietary under
another law.
DOH received dozens of applications comprised of
thousands of pages, both grower/processor [] applications
and dispensary [] applications. DOH received all
applications by March 2017. In late June 2017, DOH
announced the award of 12 [grower/processor] permits
and 27 [dispensary] permits, including those of
[Petitioners].
Mission Pennsylvania, LLC v. McKelvey, 212 A.3d 119, 125-26 (Pa. Cmwlth.
2019) (Mission Pennsylvania, LLC).
On June 29, 2017, Requesters, a reporter and newspaper publisher,
submitted a request to DOH seeking “[e]lectronic copies of the non-redacted
medical marijuana dispensary applications” for Petitioners that “were submitted as
part of the state’s [Act] application window between February and March of this
year.” Reproduced Record (R.R.) at 14a. Requesters explained:
[We] understand that some information on the non-
redacted applications may be not accessible under the
RTKL, and [we] understand there may be some redaction
permitted by law ([Social Security Numbers (SSN)] for
example). [We are] requesting electronic copies of
applications with only those redactions made by [DOH]
in accordance with the RTKL, and [we] are not seeking
copies of applications that were redacted by [Petitioners].
Id.On July 7, 2017, DOH’s Open Records Officer denied Requesters’
request. R.R. at 12a-13a. DOH stated that it “is unable to provide documents that
have been marked confidential and/or proprietary by a third party” because
“[w]hen a third party provides documents to [DOH], it has the right to mark any
information it deems to be confidential to their business or operations” which
3
“removes [DOH]’s discretion to release that information.” Id. at 12a. As a result,
DOH “honors the wishes of the third party and withholds that information from
RTKL requests.” Id.DOH informed Requesters that it posted “the winning redacted
applications for dispensary permits” on its website and that “[i]nformation redacted
by [DOH] is marked as ‘DOH Redacted’ or ‘DOH Redaction,’” and that “[a]ny
other redactions were made by [Petitioners].” R.R. at 12a. DOH stated that
Section 706 of the RTKL, 65 P.S. §67.706,3 permits it to redact exempt
information and that “[i]ndividual home addresses, direct phone numbers, driver’s
license information, dates of birth, passport information, [SSNs], Federal Employer
Identification Numbers (FEINs), personal identification numbers (PIN), bank
account information, tax information, credit card numbers, and email addresses
were redacted pursuant to [Section 708(b)(1)(ii) and (6)(i)(A),] 65 P.S.
§67.708(b)(1)(ii)[4,] (6)(i)[(A)5],” because “individually and in combination with
other information, [it] could be used to create significant financial harm.” Id.
3
Section 706 states, in relevant part, “[i]f the information which is not subject to access is
an integral part of the public record, . . . and cannot be separated, the agency shall redact from
the record the information which is not subject to access[.]”
4
Section 708(b)(1)(ii) exempts from disclosure records that “would be reasonably likely
to result in a substantial and demonstrable risk of physical harm to or the personal security of an
individual.”
5
Section 708(b)(6)(i)(A) exempts from disclosure “[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.” In turn, Section 102 defines “Personal financial
information” as including “[a]n individual’s personal credit [or] debit card information; bank
account information; bank, credit or financial statements; account or PIN numbers and other
information relating to an individual’s personal finances.” 65 P.S. §67.102.
4
DOH also determined that the foregoing information is excluded from the
definition of a “public record” under Section 102 and exempt under Section
305(a)(3), 65 P.S. §§67.102,6 67.305(a)(3),7 because “[t]his information is also
exempt from access pursuant to the privacy protections of the [Fourth] Amendment
to the United States Constitution and Art[icle] 1, [Section] 8 of the Pennsylvania
Constitution[.]” Id.
Additionally, DOH stated that the requested records are exempt from
disclosure because “[r]ecords that constitute or reveal a trade secret or confidential
proprietary information, or financial records relating to [Petitioners] were also
redacted [under Sections 707(b), 708(b)(11), and 305(a)(2),] 65 P.S.
§§67.707(b);[8] 67.708(b)(11);[9] and 67.305(a)(2).[10]” R.R. at 13a. Finally, DOH
6
Section 102 defines “public record,” in pertinent part, as “[a] record . . . of a
Commonwealth or local agency that . . . is not exempt from being disclosed under any other
Federal or State law or regulation or judicial order or decree[.]”
7
Section 305(a)(3) states, “[a] record in the possession of a Commonwealth agency or
local agency shall be presumed to be a public record [unless] the record is exempt from
disclosure under any other Federal or State law or regulation or judicial order or decree.”
8
Section 707(b) states:
An agency shall notify a third party of a request for a record if the
third party provided the record and included a written statement
signed by a representative of the third party that the record
contains a trade secret or confidential proprietary information.
Notification shall be provided within five business days of receipt
of the request for the record. The third party shall have five
business days from receipt of notification from the agency to
provide input on the release of the record. The agency shall deny
the request for the record or release the record within ten business
days of the provision of notice to the third party and shall notify
the third party of the decision.
5
stated, “[r]ecords that, if disclosed, would create a reasonable risk of endangering
the safety or security of a building; expose or create a vulnerability within critical
systems, i.e., building plans or infrastructure records; or jeopardize computer
security, have also been redacted [under Section 708(b)(3)(iii) and (4),] 65 P.S.
§67.708(b)(3)(iii),[11] (4).[12]” Id.
On July 20, 2017, Requesters appealed DOH’s decision to OOR.
Requesters cited Section 707(b) of the RTKL and asserted that “[DOH’s] denial
letter references no such contact with any of the 10 permittees [regarding
notification of the inclusion of a trade secret or confidential proprietary
information], nor does it reference any documentation from [Petitioners] justifying
the information they redacted when the applications were submitted.” R.R. at 9a.
Requesters argued that they “believe[] the appropriate action is for [DOH] to
(continued…)
9
Section 708(b)(11) exempts from disclosure “[a] record that constitutes or reveals a
trade secret or confidential proprietary information.”
10
Section 305(a)(2) states, “[a] record in the possession of a Commonwealth agency or
local agency shall be presumed to be a public record [unless] the record is protected by a
privilege.[.]”
11
Section 708(b)(3)(iii) exempts from disclosure “building plans or infrastructure records
that expose or create vulnerability through disclosure of the location, configuration or security of
critical systems, including public utility systems, structural elements, technology,
communication, electrical fire suppression, ventilation, water, wastewater, sewage and gas
systems.” Likewise, Section 708(b)(2) exempts from disclosure “[a] record maintained by an
agency in connection with . . . law enforcement or other public safety activity that, if disclosed,
would be reasonably likely to jeopardize or threaten public safety or preparedness or public
protection activity . . . .” 65 P.S. §67.708(b)(2).
12
Section 708(b)(4) exempts from disclosure “[a] record regarding computer hardware,
software and networks, including administrative or technical records, which, if disclosed, would
be reasonably likely to jeopardize computer security.”
6
release the records requested . . . with only information redacted by [DOH] in
accordance with exemptions allowed by the state’s [RTKL],” and that “it is in the
public interest that [DOH] replace the dispensary and grower permits currently
posted on its website with applications redacted only by [DOH].” Id. at 10a.
Requesters contended that “[a] similar process was used by [DOH] when collecting
medical marijuana grower permits, and any order toward dispensary permits
should also apply to grower permits,” and that “[i]f [Petitioners] believe the
information they have redacted fully complies with exemptions granted by the
[RTKL], they are free to make that appeal with [DOH].” Id. at 10a-11a.
On July 24, 2017, OOR provided Official Notice of Appeal (Official
Notice) to DOH regarding Requesters’ appeal, granting the parties seven days to
“submit legal argument to support their positions[.]” R.R. at 19a (emphasis in
original). The Official Notice also directed DOH:
If records . . . contain confidential, proprietary or
trademarked records of a person or entity . . . [DOH]
must notify such parties of this appeal immediately
and provide proof of that notice to the OOR within
seven (7) business days from the date on this letter.
Such notice must be made by (1) providing a copy of all
documents included with this letter; and (2) advising that
interested persons may request to participate in this
appeal (see 65 P.S. §67.1101(c)).[13]
Id. at 20a (emphasis in original). Accordingly, on August 1, 2017, DOH notified
PharmaCann, SMPB, and Chamounix of Requesters’ appeal and directed them to
13
See Section 1101(c)(1) of the RTKL, 65 P.S. §67.1101(c)(1) (“A person other than the
agency or requester with a direct interest in the record subject to an appeal . . . 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.”).
7
file their request to participate pursuant to Section 1101(c) “back to the OOR
within the next fifteen (15) days.” Id. at 32a (emphasis in original). DOH did not
notify either Bay or AES of their right to participate in the appeal at that time. Id.;
see also id. at 1435a.
On September 18, 2017, an OOR Appeals Officer issued an Opinion
and Order staying Requesters’ appeal and directing DOH to take further action.
R.R. at 34a-45a. Specifically, OOR initially noted that applications are public
records under Section 302 of the Act and Section 1141 of DOH’s regulations, and
that an applicant “shall mark confidential proprietary information as confidential
proprietary information prior to submission to [DOH]. 28 Pa. Code §1141.22[.]”
R.R. at 38a. OOR explained that Section 901 of the RTKL, 65 P.S. §67.901,
required DOH to: (1) make a good faith effort to ascertain if the requested record
is a public record; (2) determine whether the record was in its possession; and (3)
respond promptly to the request. Id. at 39a-40a (citation omitted). OOR also
explained that Section 707(b) of the RTKL required DOH to notify Petitioners of
the request based on their assertion that the records contain trade secrets or
confidential proprietary information and, “[a]fter conferring with the third party,
. . . either deny the request or grant access to the record.” Id. at 40a-41a.
OOR concluded, “Because [DOH] did not conduct a good faith effort
under Section 901 of the RTKL to determine if the material redacted by
[Petitioners] is exempt from disclosure, it is premature for the OOR to determine
the applicability of exemptions to this information.” R.R. at 44a. Accordingly,
OOR stayed the appeal; retained jurisdiction; and directed DOH to review the
requested records and “issue a revised response to the Request and provide an
exemption log explaining the legal support for each redaction and/or document
8
withheld.” Id. OOR also directed Requesters to “notify the OOR of any
deficiencies with [DOH’s] response,” and then OOR would issue a Final
Determination disposing of the appeal. Id. Ultimately, OOR gave DOH until
November 20, 2017, “to conduct its review of the records at issue in th[e] appeal
and [to] issue a revised response including an exemption log explaining any bases
for denial.” Id. at 46a.
On October 19, 2017, Michael Badey, a Principal of Chamounix,
submitted a Verification under the provisions of Section 4904 of the Crimes Code,
18 Pa. C.S. §4904 (relating to unsworn falsification to authorities), with a
sequential listing of all of the redactions made in its application by both
Chamounix and DOH in an exemption log. R.R. at 2032a-2065a. The Verification
“include[d] a factual description of the information redacted, and the reasoning
why, based on the factual description, the RTKL permits each such redaction[.]”
Id. at 2034a.
On October 23, 2017, Kelsey Deihl, PharmaCann’s Compliance and
Legal Coordinator, submitted an Attestation under the provisions of Section 4904
of the Crimes Code in support of an exemption log detailing the information
contained in its application that is exempt from disclosure under Section 708(b)(2),
(3)(iii), (4), (6)(i)(A), and (11) of the RTKL. R.R. at 215a-224a. AES, Bay, and
SMPB also submitted exemption logs detailing the information in their
applications that is likewise exempt from disclosure under the enumerated
provisions of the RTKL, without an accompanying affidavit, verification, or
attestation. Id. at 746a-755a; 1105a-1107a; 1455a-1463a.
On November 17, 2017, DOH issued its revised response in support
of its denial of the request. R.R. at 55a-59a. DOH stated that “[i]n the course of
9
review” of Petitioners’ applications, it “lifted clearly improper redactions, whether
made by [a Petitioner] or [DOH],” but that it “maintained [Petitioner] redactions
that were proper and appropriately cited.” Id. at 55a. DOH “also maintained
[Petitioners’] redactions that may not have been properly cited, but were clearly
exempt under another subsection.” Id. DOH attached Petitioners’ arguments and
exemption logs and “defer[red] to [] OOR’s determination as to the propriety of
the[] redactions.” Id.
Additionally, DOH claimed that Petitioners “ha[d] an interest in
protecting [their] own records” and DOH “may not waive that . . . interest.” R.R.
at 57a (citation omitted). DOH also asserted that “[w]hen a [RTKL] request seeks
confidential proprietary information that a third party submitted to an agency, the
third party must be afforded due process prior to disclosure,” that “[t]o date, []
OOR has not granted participation status to [Petitioners],” and that DOH “cannot
stand in [Petitioners’] shoes regarding their asserted exemptions, particularly with
respect to confidential proprietary/trade secret information and personal safety and
security issues.” Id. at 58a (citation omitted). DOH concluded, “Accordingly,
[DOH] defers to the OOR factfinder to determine the propriety of these asserted
exemptions, as [] OOR may develop the record by undertaking in camera review
or requesting affidavits in support of material facts.” Id. at 58a-59a (citation
omitted).
On November 29, 2017, DOH ultimately notified Bay of its right to
request participation in the proceeding pursuant to Section 1101(c) of the RTKL.
R.R. at 1435a. As a result, on November 30, 2017, Bay filed a request to
participate, asserting that the information redacted from its application is exempt
from disclosure under Sections 102, 305, 706, 707, and 708 of the RTKL, the
10
Fourth Amendment to the United States Constitution, and Article 1, Section 8 of
the Pennsylvania Constitution. Id. at 1451a-1452a. The request was appended
with a statement, verified under Section 4904 of the Crimes Code by Bay’s Chief
Executive Officer, Silvan Lutkewitte “generally stating that information redacted
from its application is exempt from disclosure.” R.R. at 2493a. See also id. at
1453a. On December 1, 2017, AES also filed a request to participate in the appeal.
Id. at 2493a.
On December 1, 2017, OOR granted Petitioners’ requests to
participate in the proceedings and granted them the “opportunity ‘to submit any
additional evidence deemed necessary to their respective positions’” by December
8, 2017. R.R. at 1531a, 2486a. On December 7, 2017, AES resubmitted an
unsworn submission offered in a different OOR appeal in addition to its exemption
log; SMPB submitted an unsworn position statement and exemption log along with
its previously submitted exemption log; and the other Petitioners did not offer
information in addition to their original submissions to DOH. Id. at 2494a-2495a.
II.
On January 11, 2018, OOR issued the instant Final Determination
disposing of Requesters’ appeal. R.R. at 2481a-2527a. At the outset, OOR noted
that the Act specifically provides, “that ‘[a]pplications for permits submitted by
medical marijuana organizations’ are ‘public records and shall be subject to the
[RTKL].’” R.R. at 2488a (quoting Section 302 of the Act, 35 P.S. §10231.302).
OOR also explained that Section 1141.22(a) of DOH’s regulations “explain[s] that
applications are public records subject to disclosure under the RTKL, ‘except to
the extent that the application contains any of the information listed in subsection
11
(b).’ 28 Pa. Code §1141.22(a),” and that “[Section 1141.22 of DOH’s] regulations
further instruct that ‘[a]n applicant shall mark confidential proprietary information
as confidential proprietary information prior to submission to [DOH].’ 28
Pa. Code §1141.22; see also [Section 707(b),] 65 P.S. §67.707(b).[14]” Id.
With respect to “‘confidential proprietary, trade secret[15] or personal
safety and security exemptions,’” OOR noted that because DOH “‘is unable to
14
See fn. 8, supra.
15
As noted by OOR, see R.R. at 2496a, Section 102 of the RTKL, 65 P.S. §67.102,
defines “Confidential proprietary information” 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.
As also noted by OOR, see R.R. at 2496a, Section 102 defines “trade secret,” as:
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.
Further, as OOR explained:
An agency must establish that both elements of either of these two-
part tests are met in order for the exemption to apply. See Office of
the Governor v. Bari, 20 A.3d 634 (Pa. [Cmwlth.] 2011). In
(Footnote continued on next page…)
12
(continued…)
determining whether certain information is “confidential,” the
OOR considers “the efforts the parties undertook to maintain their
secrecy.” Commonwealth v. Eiseman, 85 A.3d 1117, 1128 (Pa.
[Cmwlth.] 2014), rev’d in part [sub nom.] Pa. Dep’t of Pub.
Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015). “In determining
whether disclosure of confidential information will cause
‘substantial harm to the competitive position’ of the person from
whom the information was obtained, an entity needs to show: (1)
actual competition in the relevant market; and (2) a likelihood of
substantial competitive injury if the information were released.”
Id.Pennsylvania courts confer “trade secret” status based upon
the following factors: (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, e.g., Crum v. Bridgestone/Firestone N. Amer. Tire,
907 A.2d 578 (Pa. Super. [] 2006) (adopting standard from
RESTATEMENT (SECOND) OF TORTS §757 ([Am. Law Inst.] 1965)).
To constitute a “trade secret,” the information must be an “actual
secret of peculiar importance to the business and constitute
competitive value to the owner.” Parsons v. Pa. Higher Educ.
Assistance Agency, 910 A.2d 177 (Pa. [Cmwlth.] 2006). The most
critical criteria are “substantial secrecy and competitive value.”
Crum, 907 A.2d at 585. While [another applicant] also separately
raised the [Uniform Trade Secrets Act, 12 Pa. C.S. §§5301-5308
(UTSA),] as a basis for denial, the RTKL’s “self-contained trade-
secrets exception supplants the more general application of the
[UTSA],” so that the OOR need not separately analyze whether the
UTSA applies. See Eiseman, 125 A.3d at 32-33; see also Pa.
Dep’t of Rev. v. Flemming [(Pa. Cmwlth., No. 2318 C.D. 2014,
filed August 21, 2015), slip op. at 9] (“[The RTKL’s] definition [of
trade secrets] is identical to that contained in the [UTSA.]”).
(Footnote continued on next page…)
13
stand in the shoes of the individual or entity claiming such exemptions,’” DOH
“acknowledge[d] that it [did] not possess the necessary information to make
redactions pursuant to these exemptions.” R.R. at 2490a. As a result, and because
Requesters only sought copies of applications with DOH redactions, OOR limited
the scope of its review by
interpret[ing Requesters’] appeal as permitting the
redaction of two types of information by [DOH]:
personal identification information that is exempt under
Section 708(b)(6) of the RTKL and/or protected by a
right to informational privacy found in the Pennsylvania
Constitution; and “[i]nformation regarding the physical
features of, and security measures installed in, a facility”
that is made confidential by [DOH’s] temporary
regulations. 28 Pa. Code §1141.22(b)(9).[16]
Id. at 2489a, 2490a (footnote omitted).
OOR explained that Section 708(a)(1) of the RTKL, 65 P.S.
§67.708(a)(1), “provides that a Commonwealth agency has the burden of proving
‘by a preponderance of the evidence’ that information is exempt from disclosure,”
and that “[t]his burden also applies to third parties arguing an exemption.” R.R. at
2491a (citing Highmark Inc. v. Voltz, 163 A.3d 485, 490 (Pa. Cmwlth. 2017)).
Additionally, “[u]nder the RTKL, ‘a generic determination or conclusory
statements are not sufficient to justify the exemption of public records,’” and
(continued…)
R.R. at 2496a-2497a.
16
Section 1141.22(b)(9) of the temporary regulations states, “The following information
is considered confidential, is not subject to the [RTKL] and will not otherwise be released to a
person unless pursuant to court order: . . . Information regarding the physical features of, and
security measures installed in, a facility.”
14
“unsworn statements of counsel do not constitute evidence.” Id. (quoting Office of
the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013), and citing
Office of the Governor v. Davis, 122 A.3d 1185, 1193 (Pa. Cmwlth. 2015)).
A.
Ultimately, OOR determined that the unsworn statements and/or
exemption logs submitted by AES, Bay, and SMPB are not “competent evidence
under the RTKL,” so that “their submissions are not sufficient to prove the
applicability of exemptions under the RTKL. See Scolforo, 65 A.3d at 1103;
Davis, 122 A.3d at 1193; Voltz, 163 A.3d at 491.” R.R. at 2495a (footnote
omitted).
B.
With respect to PharmaCann’s claim regarding the exemption of
confidential proprietary information and trade secrets under Section 708(b)(11) of
the RTKL, OOR determined that although PharmaCann “provided evidence
regarding the measures it employs to keep [the] information contained in its
application confidential,” its “claims of confidential proprietary information and
trade secrets still fail” because its
position statement does not identify specific portions of
its application that constitute confidential proprietary
information or trade secrets; instead, it generally argues
that the application contains “a compilation of
information, practices, processes, design, [and]
commercial methods that are not generally known or
reasonably ascertainable by others.”
R.R. at 2503a.
Likewise, OOR found the attestation of PharmaCann’s Compliance
and Legal Coordinator as to the confidential nature of the contents of the
15
exemption log to be deficient as well. R.R. at 2503a-2505a. Specifically, OOR
found that PharmaCann did not sustain its burden of proof under Section 708(a)(1)
because “while the OOR understands that PharmaCann operates in a competitive
business, and that it treats its information as confidential, it is incumbent on
PharmaCann to explain to the OOR how each redacted portion of its application
constitutes confidential proprietary information or a trade secret,” and that the
“position statement discusses its redactions in only general terms, and [its]
exemption log is too conclusory to support a finding of confidential proprietary
information or trade secrets.” Id. at 2504a-2505a (emphasis in original).
Regarding the public safety exemption in Section 708(b)(2) of the
RTKL, OOR explained that PharmaCann “must show: (1) the record at issue
relates to a law enforcement or public safety activity; and (2) disclosure of the
record would be reasonably likely to threaten public safety or a public protection
activity,” and that “[r]easonably likely has been interpreted as ‘requiring more than
speculation.’” R.R. at 2505a (citing Carey v. Pennsylvania Department of
Corrections, 61 A.3d 367, 374-75 (Pa. Cmwlth. 2013)). OOR could not “conclude
that the permit applications here are maintained by [DOH] in connection with a
law enforcement or public safety activity,” DOH “does not make such an
argument, and there is no factual support for this statement.” R.R. at 2507a.
Further, “[t]o the extent that PharmaCann argues that it performs a public safety or
public protection activity, it does not provide any support for this proposition[.]”
Id. (emphasis in original).
Regarding the facility safety or security exemption in Section
708(b)(3) of the RTKL, OOR stated, “Likewise, PharmaCann does not adequately
explain how disclosure of the redacted portions of its application would create a
16
reasonable likelihood of endangering the safety or physical security of [its]
facility[.]” R.R. at 2508a. OOR determined that “[r]egardless, the entirety of an
application Section cannot be withheld merely because it contains exempt
information,” and that “PharmaCann’s wholesale redaction of Sections of its
application is overbroad, and [it] has not explained why it needs to redact facility
information above and beyond what [DOH] has redacted and/or plans to redact.”
Id. at 2508a, 2509a, (citing Bowling v. Office of Open Records, 990 A.2d 813, 816-
17 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2011)).
Finally, regarding the computer security exemption in Section
708(b)(4) of the RTKL, OOR found that “PharmaCann does not adequately
explain how disclosure of the redacted portions of its application would be
reasonably likely to jeopardize its computer security,” but that it merely
“concludes that the dissemination of any information pertaining to its information
technology (‘IT’) would ‘make [it] vulnerable to outside intruders, including those
wh[ich] exist in the cyber world.’” R.R. at 2509a (emphasis in original). OOR
also determined that “PharmaCann does not explain why it needs to redact IT
information above and beyond what [DOH] has redacted and/or plans to redact.”
Id.C.
With respect to Chamounix’s claim regarding the exemption of
confidential proprietary information and trade secrets under Section 708(b)(11) of
the RTKL, OOR determined that the attestation of Chamounix’s Principal “does
not explain how it maintains the confidentiality of the redacted information.” R.R.
at 2511a. OOR noted that “Chamounix redacted the entirety of its responses to
17
application Sections,” so that, “[i]n effect, each response to [DOH’s] application
directive, over 181 consecutive pages, has been redacted,” and that Chamounix
“disclos[ed] only its name, business address, [] business email address, the name of
its primary contact, the introductory paragraph of its Diversity Plan, and the names,
occupations, and titles of its principals, financial backers and operators.” Id. OOR
explained that, “like PharmaCann, Chamounix has not adequately demonstrated
how each redacted portion of its application constitutes confidential proprietary
information or a trade secret in its entirety, and, more specifically, why each
Section must be redacted in its entirety,” and that “Chamounix treats its
application, as a whole, to be confidential proprietary information and a trade
secret because it considers the application to be the equivalent of its business
plan.” Id. at 2511a-2512a. Further, the verified statement of Chamounix’s
Principal “provides the same statements in support of the redaction of every
Section without providing any particularized evidence explaining why that specific
Section must be redacted.” Id. at 2512a.
Regarding the security exemptions in Section 708(b)(3) and (4) of the
RTKL and Section 1141.22(9) of DOH’s temporary regulations, 28 Pa. Code
§1141.22(9),17 OOR found that the Principal’s “verification, after describing what
information is contained in each Section, concludes that disclosure of this
information ‘would create a reasonable likelihood of endangering the safety and
physical security of its facility and employees’ or ‘would jeopardize computer
security.’” R.R. at 2512a. OOR determined that the “verification is conclusory on
this subject,” that it “is not sufficient evidence in support of Chamounix’s security-
Section 1141.22(9) makes confidential “[i]nformation regarding the physical features
17
of, and security measures installed in, a facility.”
18
related redactions,” and that “Chamounix has not demonstrated why it must redact
information above and beyond the information redacted by [DOH].” Id.D.
Although Requesters did not challenge DOH’s redaction of personal
identification information pursuant to Section 708(b)(6)(i)(A) of the RTKL, most
of the Petitioners made further redactions
including names, signatures, email addresses, home
addresses, personal telephone numbers, fax numbers,
dates of birth, driver’s license numbers, driver’s license
and passport photographs, passport identification
numbers, and social security numbers.
R.R. at 2513a. OOR determined that “[d]river’s license numbers and social
security numbers” are “explicitly exempt from disclosure[.]” Id. at 2516a.
While “OOR [was] satisfied the personal phone numbers and email
addresses . . . have been redacted,” “the applications require [Petitioners] to list
[their] principals, financial backers, and operators” and Petitioners did not sustain
their burden of proof “to the extent that any [professional’s,] business[’s] or
corporation’s contact information has been redacted[.]” R.R. at 2515a. OOR also
concluded that “[p]hotographs and dates of birth are not defined as ‘personal
identification information’ and are thus not covered by the exemption,” and home
addresses were likewise not within the exemption’s purview. Id. at 2513a-2514a.
Further, OOR determined that the “personal identification information” in the
exemption only pertained to an “individual” as defined in Section 1991 of the
Statutory Construction Act of 1972, 1 Pa. C.S. §1991, as “[a] natural person.” Id.
at 2516a. Therefore, OOR concluded that the exemption was not applicable “to the
financial information of any entity” so that “[t]o the extent that the financial
19
information of an entity was redacted, [Petitioners did] not me[e]t their burden of
proof.” Id.
With respect to the information not encompassed within the statutory
exemption, OOR then applied the constitutional balancing test required by Reese v.
Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017), and in
Pennsylvania State Education Association v. Department of Community and
Economic Development, 148 A.3d 142 (Pa. 2016) (PSEA), in determining whether
disclosure of the requested information was appropriate. R.R. at 2516a-2523a.
OOR initially determined that “because only individuals have a right to privacy,
there is no right to privacy regarding any of the corporate or business information
at issue in the applications,” and “there is no right to privacy regarding any of the
names contained in the application.” Id. at 2520a. OOR also found that
“[l]ikewise, because there is no reasonable expectation of privacy in the names[,]
there cannot be a reasonable expectation of privacy in one’s signature,” and “there
is no reasonable expectation of privacy in [contact] information that has already
been voluntarily disseminated to the public.” Id. at 2521a.
Regarding the remaining requested information, OOR explained:
[A]fter balancing the privacy interests and public
interests at stake, the OOR concludes that an individual’s
street address may be redacted because the privacy
interests in this piece of information outweigh the public
interests. However, an individual’s city of residence,
state of residence, and zip code must be disclosed,
because the public interest – the identification of
principals, operators, financial backers and employees,
specifically to ensure that they are not violating the Act –
outweighs the privacy interest in this information. For
dates of birth, while there is a public interest in the
identification of individuals contained in the applications,
there is a strong privacy interest in this information. As a
20
result, the privacy interest outweighs the public interest.
Finally, while there is a privacy interest in one’s driver
license or passport photograph, the OOR cannot discern
any public interest in the disclosure of this information.
As a result, these photographs may be redacted.
R.R. at 2522a-2523a (citation omitted).18 Based on the foregoing, OOR granted in
part, and denied in part, Requesters’ appeal and directed DOH to provide copies of
Petitioners’ applications in accordance with its Final Determination. Id. at 2526a.
Petitioners then filed the instant petitions for review.
III.
As a preliminary matter, we note that prior to filing its petition for
review in this Court, Bay filed a Petition for Reconsideration with OOR alleging,
in relevant part: (1) despite OOR’s July 29, 2017 directive, unlike the other
Petitioners, Bay and AES did not receive the notification of Requesters’ appeal on
August 1, 2017; (2) Bay was not notified of OOR’s September 18, 2017 Opinion
and Order relating to the appeal; (3) Bay was not notified of DOH’s November 17,
2017 revised response and, as a result, did not submit an exemption log to DOH for
submission to OOR as was done by the other Petitioners; (4) on November 29,
2017, after filing its revised response, DOH discovered that it failed to notify Bay
and AES of their right to participate in Requesters’ appeal pursuant to Section
1101(c) of the RTKL and provided such notification nearly four months after the
other Petitioners were notified and had participated in the proceeding; (5) once
notified, Bay immediately filed a request to participate in the appeal; and (6) on
December 1, 2017, OOR granted the request to participate, but only granted Bay
18
OOR also declined to find that DOH acted in bad faith in its review and response to the
request. See R.R. at 2523a-2526a.
21
seven days to submit any evidence or information relating to Requesters’ appeal
rather than the fifteen days provided in Section 1101(c)(1) of the RTKL. R.R. at
1467a-1469a.19
As Bay explained in its Petition for Reconsideration, “[t]his is a clear
violation of law and Section 1101(c) of the RTKL, which guarantees that a direct-
interest participant will have fifteen (15) days to submit such information,” and
that “the courts in Pennsylvania have ‘consistently recognized the serious due
process concerns implicated by [a] lack of notice, particularly where the
confidential information of a private entity is at stake.’ [Department] of
Corrections v. Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015).” R.R. at 1470a-
1471a. Bay asserted that the violation of its “rights under §67.1101 is only
exacerbated by the fact that the other parties of interest were notified of
[Requesters’] appeal on August 1, 2017,” and that, “with the exception of AES,
[they] were given nearly four (4) months to gather evidence in support of their
redactions, while BAY was provided only nine (9) days.” Id. at 1471a. Bay
19
“Our standard of review of an OOR Final Determination is de novo and our scope of
review is plenary.” Wishnefsky v. Pennsylvania Department of Corrections, 144 A.3d 290, 294
n.7 (Pa. Cmwlth. 2016) (citation omitted). Although Bay petitioned for review of OOR’s Final
Determination, and not its denial of its Petition for Reconsideration, we may consider its contents
and attachments related thereto as part of OOR’s certified record. As this Court has explained:
[The requester] seeks review of OOR’s [] Final Determination
and did not appeal from OOR’s denial of his Petition for
Reconsideration. OOR certified as part of the record all of the
filings received from the parties including those which it received
after the [] Final Determination. As we apply the broadest scope
and standard of review under the RTKL, see Bowling v. Office of
Open Records, [75 A.3d 453, 473-74 (Pa. 2013)], we may consider
all of the materials certified to us.
Id. at 294 n.6.
22
claimed that “[t]his violation of law is further exacerbated by the fact that [DOH]
allegedly used and submitted an exemption log to the OOR for BAY that it
previously had in its possession”; “[i]n other words, BAY did not make a
submission to [DOH] in connection with [Requesters’ a]ppeal”; and “[t]hus, the
OOR relied on a clear factual error where BAY did not make any particular
submission to [DOH] in connection with [Requesters’ a]ppeal.” Id. (emphasis in
original).
Accordingly, Bay concluded that the foregoing “amounts to an abuse
of the OOR’s discretion,” and that “reconsideration is warranted” based on “a clear
violation and error of law, where BAY was denied its statutory rights.” R.R. at
1472a. Specifically:
In light of [DOH]’s violation of §67.1101(c)(1),
the fact that [DOH] submitted an unrelated exemption
log to the OOR for BAY, and the extraordinary
circumstances of allowing certain participants months to
respond, while BAY was only given days, BAY requests
that the OOR grant their petition for reconsideration and
review the evidence which would have been submitted
had the Company not been denied the statutory time
period to submit information in support of its redactions.
Id. at 1471a-1472a.
Additionally, in support of the RTKL exemptions at issue herein, Bay
appended the affidavit of its Chief Executive Officer Lutkewitte (Lutkewitte Aff.)
to the Petition for Reconsideration that was executed before a notary public, and
Lutkewitte verified the allegations in the Petition for Reconsideration and the
Affidavit under the provisions of Section 4904 of the Crimes Code. R.R. at 1481a,
1483a-1497a. See id. at 1474a (“Given that reconsideration is warranted, BAY
attaches the Lutkewitte Affidavit as the information and support it would have
23
provided had the OOR not violated Section 1101(c) of the RTKL.”).20 In February
2018, OOR denied the Petition for Reconsideration by a three-sentence letter. Id.
at 1578a.
20
With respect to the confidential proprietary information and trade secret exemptions
asserted herein, the Petition for Reconsideration alleged the following, in relevant part:
50. In the case of BAY, the Company has made
significant efforts to maintain the secrecy of [its] information,
including, but not limited to: (1) designating such information as
confidential proprietary and/or trade secret at the time it was
submitted to [DOH]; (2) directing employees that the information
should not be shared with individuals outside of the Company, (3)
developing proprietary software to ensure that certain functions of
the Company are kept confidential; (4) limiting such information
to certain individuals on a need-to-know only basis, [and] (5)
agreeing to contractual obligations with third parties to maintain
the confidentiality of the information, including but not limited to
BAY’s investors and/or consultants. (See Lutkewitte Aff. [] ¶41).
51. The efforts taken by BAY to maintain the
confidentiality of the information contained in [its] application
underscores the sensitive nature of this information and
necessitates its non-disclosure.
52. If competitors in the market, including the other
applicants for medicinal marijuana permits, were to obtain this
information it would cause significant harm to the competitive
position of BAY. (See Lutkewitte Aff. [] ¶37).
53. BAY has clearly met the requirements of Eiseman
and the RTKL regarding its redaction of confidential proprietary
information and, as such, this information should remain redacted
and not be subject to public disclosure pursuant to Section
708(b)(11).
54. Additionally, 65 P.S. §67.102 exempts from
disclosure any information which is deemed to be a “trade secret.”
A trade secret is defined as any “formula, drawing, pattern,
compilation, including customer list, program, device, method,
(Footnote continued on next page…)
24
(continued…)
technique, or process” that derives economic value from not being
generally known and is subject to reasonable efforts to maintain its
confidentiality.
55. In accordance with the RTKL exemption from
public disclosure, BAY redacted information which contains trade
secrets and would substantially harm their economic position if
made available. (See Lutkewitte Aff. [] ¶34).
56. These redactions include but are not limited to: (1)
proposed financial commitments that are unique to BAY’s overall
investment and application strategy in Pennsylvania, (2) proposed
security and surveillance measures that are specific to BAY and/or
its investors’ security methods, processes, and plans, (3)
specialized cash-handling methods, processes, and plans which are
only known to BAY investors, (4) specific storage methods and
plans which allow BAY to provide a more stable environment for
its product than its competitors, (5) inventory control programs
which were specially developed by BAY for managing its
dispensaries, (6) electronic tracking programs developed or used
by BAY and/or its investors specifically for operating and
managing medical marijuana dispensaries, (7) unique
transportation route processes developed or used by BAY and/or
its investors to ensure safe and efficient delivery to and from its
medical marijuana dispensaries, (8) unique loss, theft, and
diversion policies, plans, and methods which are unique to BAY
and are not known by its competitors, (9) proposed safety and
sanitation plans specific to BAY, [and] (10) specialized financial
models and estimates which reveal BAY’s independent financial
strategy. (See Lutkewitte Aff. [] ¶36).
57. These “trade secrets” are not known outside of
BAY’s closest investors and employees and the Company has gone
to substantial lengths to ensure the confidentiality of this
information. (See Lutkewitte Aff. [] ¶37).
58. Maintaining confidentiality over this information is
extremely important as BAY derives substantial advantages in the
(Footnote continued on next page…)
25
(continued…)
medical marijuana market through its use of specialized methods
and practices. (See Lutkewitte Aff. [] ¶41).
59. If this information w[as] to be made public, BAY
would suffer a substantial loss to its competitive position. Medical
marijuana dispensaries within Pennsylvania, and/or dispensaries in
the geographic regions where BAY and/or its investors operate,
could take this information, if made public, and undercut BAY’s
position in the market. (See Lutkewitte Aff. [] ¶37).
60. BAY has taken reasonable efforts to ensure the
confidentiality of this information, an effort which would prove
futile if the OOR w[as] to allow public disclosure. (See Lutkewitte
Aff. [] ¶41).
R.R. at 1474a-1476a.
With respect to the physical and security features exemption asserted herein, the Petition
for Reconsideration alleged the following, in relevant part:
61. BAY’s Application contains redacted information
regarding the physical features of, and security measures to be
installed at, BAY’s medical marijuana dispensary. (See Lutkewitte
Aff. at ¶34).
62. Pursuant to [DOH’s] Regulations, this type of
physical feature and security measure information is: (a)
considered confidential information; (b) “not subject to the
[RTKL]”; and (c) not to be released “unless pursuant to a court
order.” See 28 Pa. Code §1141.22(b), (b)(9).
63. Additionally, BAY relied on the DOH’s
Instructions that expressly provide that “Information regarding the
physical features of, and security measures installed in, a facility”
are “not subject” to the RTKL. (See Lutkewitte Aff. [] ¶13)[.]
64. Thus, physical feature and security measure
information redacted from BAY’s Application is not subject to the
RTKL and, thus, is not subject of the [] RTKL Request or the []
(Footnote continued on next page…)
26
(continued…)
RTKL Appeal and must not be disclosed unless disclosure is
ordered by a court.
65. The OOR abused its discretion to the extent it found
that this information was subject to public disclosure under the
RTKL.
66. Additionally, the OOR’s Final Determination does
not amount to a court order and, thus, DOH is not obligated to
release this information.
R.R. at 1476a-1477a.
With respect to the disclosure of the redacted personal information, the Petition for
Reconsideration alleged the following, in relevant part:
67. BAY’s Application also contains redacted personal
information of BAY and/or its investors pursuant to Section
708(b)(6) of the RTKL and includes home addresses, phone
numbers, e-mail addresses, dates of birth, social security numbers,
driver’s license numbers, and other confidential personal financial
information. (See Lutkewitte Aff. [] ¶34).
68. This type of personal information and personal
financial information is exempt from disclosure under the RTKL
Section 708(b)(6) and Section 708(b)(26).
R.R. at 1477a.
Finally, Bay asserted that “[w]hile not addressed in the OOR’s Final Determination,
Pennsylvania plans to issue medical marijuana permits in two separate ‘phases,’” wherein “[t]he
initial phase (‘Phase I’) allowed [DOH] to run a ‘trial period’ during which it can determine how
best to implement the dispensary and grower/processor programs,” and that “[f]ollowing the
review period, [DOH] will then solicit and issue additional grower-processor and dispensary
applications under Phase II.” R.R. at 1477a-1478a. Bay claimed that “[u]nder Phase I, the
proposed grower/processor and/or dispensary vendors submitted applications to [DOH] and,
based on the specifics [therein], were evaluated and awarded points [that] were then used to
determine wh[ich] would be awarded or issued permits for Phase I.” Id. at 1478a. Bay
(Footnote continued on next page…)
27
In this appeal, Bay claims: (1) OOR violated Section 1101.1(c)(1) of
the RTKL by failing to provide the minimum statutory period of time for Bay to
submit its direct interest evidence supporting its redactions in the instant records;
(2) OOR failed to take “all necessary precautions”21 before ordering the release of
Bay’s confidential proprietary information; and (3) OOR denied Bay its right to
procedural due process in disposing of Requesters’ appeal.
(continued…)
contended that “[i]f, however, the OOR permits the public disclosure of the information
contained in the Phase I applications . . . , this information will no doubt be utilized by
competitors to obtain an advantage in the second round of applications (i.e., Phase II),” thereby
“seriously decreas[ing] the competitive nature and taint[ing] Phase II, giv[ing] the other
applicants an unfair advantage in Phase II, and . . . seriously prejudice[ing] BAY, wh[ich]
submitted a successful application in Phase I, moving forward.” Id. Bay argued that “Section
708(b)(26) of the . . . RTKL exempts from disclosure ‘[a] proposal pertaining to agency
procurement or disposal of supplies, service or construction prior to the award of the contract or
prior to the opening and rejection of all bids[,]’ (emphasis added),” and that its purpose “is to
protect certain information contained in a bid or proposal from disclosure before the procurement
concludes because it could be used by competitors to gain an unfair advantage or reduce
competition in the procurement.” Id. at 1479a. Based on the foregoing, “BAY submits that the
Phase I applications should remain exempt from disclosure in their entirety at least until Phase II
of the application process is complete” because “maintaining confidentiality for a set time period
(i.e., until the closure of Phase II) would in no way run afoul of the requirements of the Act.” Id.21
See Bari, 20 A.3d at 648, wherein this Court stated:
Releasing 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, 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.
28
IV.
As this Court has explained:
This Court construes the RTKL to afford due process to
third parties, including the ability to submit evidence and
assert exemptions at the appeals officer level. Maulsby;
W. Chester Univ. v. Schackner (Bravo), 124 A.3d 382(Pa. Cmwlth. 2015). When a RTKL request seeks
confidential proprietary information that a third party
submitted to an agency, we recognize that third party’s
right to due process before disclosure. See, e.g., [Bari]
(remanding for hearing so third party may prove
exception).
In the RTKL context, a right to due process does
not entail a right to a hearing. Giurintano v. Dep’t of
Gen. Servs., 20 A.3d 613 (Pa. Cmwlth. 2011). The
essential elements for due process before an OOR
appeals officer are notice and an opportunity to be heard.
Wishnefsky v. Pennsylvania Department of Corrections,
144 A.3d 290, 295 (Pa. Cmwlth. 2016) (citation omitted).
An appeals officer has discretion in developing the
record to allow meaningful appellate review.
[Pennsylvania Department of Education v. Bagwell, 131
A.3d 638 (Pa. Cmwlth. 2015)]. To develop the record,
an appeals officer may undertake in camera review or
request submissions as to material facts. Id.; Office of
Open Records v. Center Twp., 95 A.3d 354 (Pa. Cmwlth.
2014) (en banc).
Voltz, 163 A.3d at 490-91.
Likewise, in Bagwell, 131 A.3d at 650, this Court stated:
At a minimum, third parties may submit evidence before
the initial fact-finder to show an interest in shielding
certain information from disclosure. See, e.g., PSEA
(relating to protection of home addresses under the
personal security exception, Section 708(b)(1)(ii);
Maulsby (relating to protecting confidential proprietary
information under the trade secrets exception, Section
708(b)(11)).
29
Under these circumstances, when [the school] had
no opportunity to review records in the Department[ of
Education’s] possession to which OOR’s disclosure order
applied, [the school] established a deprivation of due
process that merits a remand. In its direct interest
statement, [the school] explained its inability to submit
evidence as to the 644 records potentially at issue. Thus,
[the school] did not have a meaningful opportunity to be
heard before the initial fact-finder. Accordingly, we
remand this matter to OOR to allow [the school] a
meaningful opportunity to preserve its privilege. See
[State Employees’ Retirement System v. Fultz, 107 A.3d
860, 872 (Pa. Cmwlth. 2015)] (remanding for OOR to
consider employees’ direct interest submissions).
As in Bagwell, in the instant matter, Bay also did not have a
meaningful opportunity to be heard before the initial fact-finder. Unlike the other
Petitioners in this matter, DOH’s failure to notify Bay of Requesters’ appeal in
July 2017, as directed to do so by OOR, prevented Bay from participating in the
proceedings for over a four-month period of time. When Bay was ultimately
notified of the appeal, and permitted to request to participate in the proceedings as
specifically provided in Section 1101(c)(1), OOR failed to afford Bay the
statutorily required period of time to adequately respond to the issues raised in
Requesters’ appeal. After OOR proceeded to issue a Final Determination in spite
of this manifest due process violation, Bay filed the Petition for Reconsideration
outlining its legal arguments and provided a sworn affidavit in support of its
assertions only to be tersely rebuffed yet again by OOR. Under such
circumstances, we are compelled to vacate OOR’s Final Determination and remand
the matter to OOR to consider the contents of Bay’s Petition for Reconsideration
on the merits.
In addition, and quite importantly, during the pendency of the instant
appeal, this Court issued an en banc opinion in Mission Pennsylvania, LLC,
30
addressing the same issues raised herein and controlling their disposition by OOR.
As a result, OOR is directed to issue a new Final Determination disposing of
Requesters’ appeal specifically addressing the contents of Bay’s Petition for
Reconsideration and the application of Mission Pennsylvania, LLC with respect to
all of the records that are requested herein. See Section 706 of the Judicial Code,
42 Pa. C.S. §706 (“An appellate court may . . . vacate . . . any order brought before
it for review, and may remand the matter and . . . require such further proceedings
to be had as may be just under the circumstances.”).22
Accordingly, OOR’s Final Determination is vacated, and the matter is
remanded to OOR for proceedings consistent with the foregoing opinion.23
MICHAEL H. WOJCIK, Judge
22
As always, in disposing of Requesters’ appeal, it is within OOR’s discretion regarding
the necessity of conducting a hearing or in camera review in developing an adequate evidentiary
record. Sections 1101(b)(3), 1102(a)(2) of the RTKL, 65 P.S. §67.1101(b)(3), 1102(a)(2);
Township of Worcester v. Office of Open Records, 129 A.3d 44, 59-60 (Pa. Cmwlth. 2016).
23
Based upon our disposition of these issues, we will not reach the other claims raised in
these appeals.
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PharmaCann Penn LLC, :
:
Petitioner :
:
v. : No. 172 C.D. 2018
:
Christopher Ullery and Calkins :
Media, :
:
Respondents :
AES Compassionate Care, LLC, :
:
Petitioner :
:
v. : No. 173 C.D. 2018
:
Christopher Ullery and Calkins Media, :
:
Respondents :
Chamounix Ventures, LLC, :
:
Petitioner :
:
v. : No. 174 C.D. 2018
:
Christopher Ullery and Calkins Media, :
:
Respondents :
Bay LLC, :
:
Petitioner :
:
v. : No. 183 C.D. 2018
:
Christopher Ullery and Calkins Media, :
:
Respondents :
SMPB Retail, LLC, :
:
Petitioner :
:
v. : No. 184 C.D. 2018
:
Christopher Ullery and Calkins Media, :
:
:
Respondents :
ORDER
AND NOW, this 16th day of October, 2019, the Final Determination
of the Office of Open Records dated January 11, 2018, is VACATED and the
matter is remanded to the Office of Open Records for proceedings consistent with
the foregoing opinion.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge